State of Tennessee v. Carlos Radale Cornwell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 28, 2012 Session

STATE OF TENNESSEE v. CARLOS RADALE CORNWELL

Appeal from the Criminal Court for Knox County

No. 89044 Richard R. Baumgartner, Judge

No. E2011-00248-CCA-R3-CD - Filed October 25, 2012

Appellant, Carlos Radale Cornwell, appeals his conviction of second degree murder and

resulting sentence of thirty-five years. Appellant cites the following errors: (1) the State

failed to adequately preserve evidence; (2) the trial court erred in permitting the State’s

medical expert to testify beyond the scope of her expertise; (3) the trial court improperly

allowed two of the State’s witnesses to testify as experts; (4) the trial court erred in allowing

improper testimony of certain lay witnesses; (5) the State improperly argued a theory in its

closing argument that was not supported by the evidence; (6) the State failed to provide audio

tapes of witness interviews in a timely fashion; (7) the trial court erred by allowing an officer

to read aloud the affidavit of complaint supporting a domestic violence warrant taken by the

victim against appellant; and (8) the trial court erred in sentencing appellant as a Range II

offender and in determining the length of appellant’s sentence. Discerning no error, we

affirm appellant’s conviction and sentence.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOMAS

T. W OODALL, JJ., joined.

Mark E. Stephens, District Public Defender; John Halstead and Robert Edwards, Assistant

Public Defenders, Knoxville, Tennessee, for the appellant, Carlos Radale Cornwell.

Robert E. Cooper, Jr. Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

A. Procedural History

A Knox County Grand Jury indicted appellant for one count of first degree murder of

his wife, Leoned Cornwell. The trial court appointed the Knox County Public Defender to

represent appellant. After a jury trial, the jury convicted appellant of the lesser-included

offense of second degree murder.

This case involves a motor vehicle fatality where appellant struck the victim, his wife,

with his automobile. Appellant did not challenge the fact that he struck the victim with his

automobile. The primary dispute involved whether appellant moved his vehicle forward to

strike the victim, or whether, as he contended, he accidentally struck the victim as she walked

behind his vehicle. As such, evidence tending to support either theory was important. Thus,

prior to trial, appellant filed a motion based on State v. Ferguson, asking that the trial court

dismiss the indictment against him.1 Ferguson provides the legal analysis to be employed

by the court when an accused alleges loss or destruction of evidence by the State.

Appellant argued to the trial court that after officers impounded and examined his

vehicle, they improperly stored it in an unprotected outdoor area, leading to material

alteration of evidence. Appellant maintained that his expert would contend that it was not

feasible for the State to draw the conclusions it reached based on the documentation it

provided to appellant and that independent visual inspection by appellant’s expert was

necessary, yet impossible. Thus, appellant argued that he could not defend himself against

the indictment. The State responded that it adequately preserved the evidence

photographically and made the photographs available to appellant. After hearing testimony

from Gillis Dewayne Terry from the Knoxville City Impound Lot and accident

reconstructionists James Alan Parham and L.B. Steele, III, the trial court denied appellant’s

motion.

In a subsequent pre-trial hearing, the parties addressed issues pertaining to the expert

testimony of Dr. Darinka Mileusnic-Polchan, Joe Cox, and L.B. Steele. At that time, the

trial court heard appellant’s argument regarding the anticipated testimony of his neighbors

Anthony and Stephanie Anderson. On the morning of trial, appellant offered further

argument about the expert testimony and the Andersons’ testimony.

1

See generally State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999)

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B. Facts from Trial

Stephanie Anderson testified that she was a neighbor of the Cornwells at Morningside

Hills Apartments. She lived next door to appellant and the victim with her husband and

daughter. The Andersons’ apartment shared a common wall with the Cornwells’ apartment.

On March 5, 2008, Ms. Anderson was awakened at approximately 4:30 a.m. by the

Cornwells’ arguing. Appellant was screaming at the victim, calling her profane names such

as, “B***h. You stupid b***h. You stupid MF.” Ms. Anderson believed that appellant

sounded angry. Later that day, Ms. Anderson heard something about a death that prompted

her to call Detective Steve Still. He interviewed Ms. Anderson at her home the following

day. Another investigator accompanied Detective Still and simultaneously interviewed Mr.

Anderson in a different room.

Anthony Anderson, Stephanie Anderson’s husband, confirmed that he heard appellant

yelling at the victim, including a great deal of profanity and cursing. He also heard appellant

threaten the victim by saying, “Stupid, mother f****er, you know that I’ll kill you.”

Cebra Griffin, Sr., testified that he worked with appellant at Smokey’s restaurant at

the University of Tennessee. Mr. Griffin was at work around 5:00 a.m. on March 5, 2008,

and saw appellant arrive at approximately 5:25 a.m. Appellant was looking for their

supervisor. Mr. Griffin believed that appellant left around 5:30 or 5:45 a.m. According to

Mr. Griffin, appellant did not appear to be upset when he left.

Angelel Williams testified that she worked at Smokey’s with appellant and Mr.

Griffin. She was at work on March 5, 2008. Appellant was already there when she arrived

at 5:30 or 5:45 that morning. He was in a good mood and did not indicate that he and the

victim had argued. Ms. Williams received a call for appellant. She did not see him leave

Smokey’s.

Sandra Moore testified that she also lived in Morningside Hills Apartments. Ms.

Moore’s apartment shared a common wall with the Cornwells’ apartment. On March 5,

2008, she awoke at 5:30 a.m. and did not hear any yelling or screaming as she was getting

dressed for work. Ms. Moore left her apartment around 6:00 a.m., when she passed appellant

and the victim. They were walking toward their car. She heard them bickering but did not

describe it as yelling.

Titonia Sawyer testified that she made a transaction using the ATM at ORNL Federal

Credit Union at 6:22 a.m. on March 5, 2008. She approached the credit union from a back

street, the name of which she did not recall. From the direction Ms. Sawyer approached, she

was facing the teller lanes. Ms. Sawyer noticed a car just in front of the teller lanes. She

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drove around the credit union to the ATM. The car she previously noticed pulled around,

also. The driver of the vehicle approached in such a way as to leave a space between Ms.

Sawyer’s car and the other vehicle. Ms. Sawyer’s window was rolled down and the driver’s

side door was ajar, allowing better access to the ATM. Ms. Sawyer did not hear arguments

or music coming from the other car. From her vantage point, Ms. Sawyer could see that a

male was in the driver’s seat. She could not clearly see anything else until a woman exited

the front passenger side of the vehicle. After the passenger exited the vehicle, the passenger

looked down into the car. The female passenger did not appear agitated; Ms. Sawyer thought

the woman was simply looking for her purse. The next time Ms. Sawyer looked back, the

woman had both passenger side doors open. Ms. Sawyer became very nervous, thinking that

she was about to be ambushed. When Ms. Sawyer received her ATM receipt, she left the

credit union by the same route she arrived. The other vehicle was in the same location, but

she could no longer see the woman.

Ms. Sawyer then went to work. While at her desk, Ms. Sawyer watched the local

news on her computer. A news story reported that a hit-and-run had occurred at the ORNL

Credit Union at approximately 6:23 or 6:24 a.m. Ms. Sawyer checked her ATM receipt, and

upon confirming that her transaction occurred at 6:22 a.m., she called the police. When she

spoke with the investigator, he informed her that the police were looking for her. Ms.

Sawyer viewed a photograph of where the vehicle was oriented after the incident. She stated

that the other vehicle was farther “down,” meaning toward the street, than where she last saw

it.

Gail Cox testified that she, along with her husband, Devery Cox, and their two

children were in their vehicle traveling west on Magnolia Avenue on the morning in

question. They stopped at a traffic light and saw a man in the eastbound lane of the road

walking toward the credit union. The man was waving his arms over his head and was

screaming hysterically for someone to call 9-1-1. They traveled through a green traffic signal

when they noticed the man was then in the median and was signaling them to stop or slow

down. Mr. Cox pulled to the median, at which time the man shouted for them to call 9-1-1

because “someone had been hit.” Mr. Cox moved their vehicle from the roadway into the

parking lot of ORNL Credit Union and dialed 9-1-1. As soon as the Coxes entered the

parking lot, Mr. Cox saw the victim on the ground behind a maroon car. Mr. Cox saw shoes,

an umbrella, and a few other items. Shortly thereafter, Mrs. Cox moved their car to another

area of the parking lot to clear the way for emergency vehicles.

Mr. Cox spoke with the 9-1-1 operator at first, but because Mr. Cox was frantic and

yelling, Mrs. Cox took the telephone and began to inform the operator about the incident.

The victim’s face was full of blood. One of her arms was contorted in such a way that it

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appeared it may not have been attached to the victim’s body. The victim was breathing but

not consistently. She would, at times, try to catch her breath. The victim’s eyes were open.

Appellant was frantically running about, saying that he could not believe this was

happening and that he hoped the victim was okay. Appellant informed Mrs. Cox that he and

the victim were arguing when the victim exited the vehicle. Mrs. Cox gave a statement to

Detective Still later that morning. She stated that appellant told her that the victim started

walking immediately after exiting the vehicle, so he shifted the car into reverse and began

backing up without realizing that he ran over the victim. When appellant exited the vehicle,

he observed that the car was on top of the victim. Knowing that he had to move the car, he

got back into the vehicle in order to move it off of the victim’s body.

Mrs. Cox testified that she advised appellant to collect the victim’s purse and debit

card, which were on the ground, and move the items out of the way for emergency personnel.

Mrs. Cox noted that one of the victim’s shoes was in close proximity to her body, while the

other shoe was farther down the driveway of ORNL Credit Union. She recalled that

someone put the victim’s shoes in the trunk of appellant’s car.

Mr. Cox testified that he was more concerned about the victim than the appellant. The

victim’s eyes were open and she was gasping for breath. Mr. Cox was anxious for 9-1-1 to

arrive and save the victim’s life. Mr. Cox was worried that the victim might go into shock,

so he gathered jackets from appellant, Mrs. Cox, and their son to cover the victim. As Mr.

Cox was on his knees beside the victim, appellant was running around, hysterical, saying,

“Oh my God, oh my God,” “I need help,” “What have I done?” and “What am I going to

do?” Mr. Cox told appellant to calm down. At some point, Mr. Cox asked appellant to come

over to where the victim was lying and call her name to see if she would respond. The victim

died before emergency personnel arrived on the scene.

Stacy Foster testified that she was employed as the vice-president supervising the

security and fraud department at ORNL Federal Credit Union. Ms. Foster confirmed that the

victim had an account with the credit union. She provided video footage from the

surveillance cameras fixed on the ATM at the credit union at the time of the victim’s death.

From the angle of the camera at the ATM, one could see approaching headlights. The

camera recorded a customer making an ATM transaction at 6:21 a.m. on March 5, 2008. Ms

Foster identified a second set of headlights in the video footage beginning at 6:22 a.m.

However, neither appellant’s vehicle nor the victim were visible in the footage.

Steve Still, an investigator with the Knoxville Police Department’s violent crimes unit,

previously served as a fatal accident investigator. Detective Still completed training to

investigate traffic fatalities but was not an accident reconstructionist. He testified that

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accident reconstruction involves formulas and more technical issues, while fatal accident

investigators make determinations based on the evidence at the scene, witness interviews,

and toxicology reports.

On his way to work on March 5, 2008, Detective Still responded to an incident on

Magnolia Avenue. The police department’s reconstructionists worked the fatalities but often

called investigators to assist in interviewing witnesses. Detective Still’s duty at the scene

was to interview the witnesses. At some point, the status of the incident changed from being

a traffic accident to “possibly something more.” When he arrived on the scene, Detective

Still spoke with officers to obtain a basic understanding of what had happened. As he

walked around the scene and the vehicle, someone pointed out that blood appeared to be

under the front of the car. The spot of blood was located on a guard or cross-piece some

distance farther back from the front of the car. Detective Still would have expected to see

damage to a vehicle that struck a pedestrian but observed no damage to the hood or the trunk

of appellant’s car. He did, however, observe drops of blood, pieces of clothing, and a

brownish mark that appeared to be skin near the sidewalk of the parking lot. Detective Still

asked Mr. Cox to meet him at the police department to give a statement and asked officers

to transport appellant to the department.

After informing appellant of his Miranda rights, Detective Still interviewed appellant.

Detective Still videotaped and tape-recorded the interview. In appellant’s statement to

Detective Still, appellant said he thought he and the victim might be splitting up. Appellant

and the victim had an issue regarding car payments. Appellant went to work on the morning

of the incident but left so he and the victim could make the car payment. They went to the

ATM together, where they were behind another vehicle. According to appellant, the victim

cursed him, exited their vehicle, retrieved her umbrella from the back of the car, and began

walking toward Magnolia. Appellant backed up the vehicle to see where the victim was

going, then accidentally ran over her. When appellant realized he struck the victim with the

car, he pulled forward to get the car off her. Appellant stated that he did not mean to hit her

and that it was not intentional. Detective Still pointed out to appellant that before he moved

the vehicle, he should have checked underneath to see exactly where the victim was in

relation to the tires. If the victim was between the two axles of the car, her body may have

been in contact with the undercarriage but not necessarily being crushed by it. In that case,

moving the vehicle off her would have injured her further.

Detective Still did not believe that appellant’s version of the incident matched the

evidence at the scene. Everything that Detective Still witnessed at the scene indicated that

the victim’s body was dragged in the opposite direction of what appellant told him. The

blood under the front of the vehicle, between the front axle and the very front of the car,

indicated that if appellant had indeed backed over the victim as he stated, he would have run

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over her with both axles of the vehicle. Based on the level of jarring that appellant would

have experienced in the car, running over the victim with both axles of the car would have

indicated very aggressive driving. Appellant could offer no explanation for the blood on the

bottom front of the car. Detective Still was troubled by the absence of directional marks

supporting appellant’s version of the incident. Detective Still contacted the Knoxville Police

Department reconstructionists, Ron Trentham and L. B. Steele.

Detective Still charged appellant with first degree murder. He continued investigating

the case and developing information with the accident reconstructionists. In conducting his

investigation, Detective Still gathered information from the following sources: Anthony and

Stephanie Anderson; the medical examiner, Dr. Darinka Mileusnic-Polchan; Titonia Sawyer;

credit union personnel; a co-worker of appellant; and photographs and evidence from the

credit union scene. Detective Still agreed with the experts’ opinion, based on the evidence

and condition of the vehicle, that the victim’s center of gravity was below the hood or trunk

line of the car. His conclusion indicated that the victim was already on the ground when

appellant ran over her.

Officer Beth Goodman was an evidence technician with the forensic unit of the

Knoxville Police Department. Her duties involved gathering evidence, documenting crime

scenes, and taking photographs. Officer Goodman collected the victim’s clothing and

personal items from the forensic center where the victim’s body was autopsied. The articles

of clothing included a black “hoodie,” a pair of pants, underwear, a white t-shirt, a denim

jacket, socks, and a sports bra. Officer Goodman also collected the victim’s jewelry and

keys.

Officer Dan Crenshaw, a senior evidence technician at the Knoxville Police

Department, responded to the scene at ORNL Credit Union. Officer Crenshaw believed that

he was responding to an accident with an injury. When he arrived, he observed a vehicle

with a body partially protruding from the rear of the car. The first thing Officer Crenshaw

did was take photographs. He placed cones, markers, and numbered placards beside the

evidence. He also photographed the inside of the vehicle. Officer Crenshaw saw blood

spatter on the ground and blood on the undercarriage of the car around the radiator. He did

not notice any damage to the hood, trunk or bumpers of the vehicle. Officer Crenshaw took

several other photographs before Officer Joe Cox arrived at the scene to relieve him.

Lachrisa Clemmons was the victim’s daughter. On the day of the incident, Ms.

Clemmons expected her mother to take her to the orthodontist around noon. Ms. Clemmons

tried repeatedly to reach the victim by telephone. She called the victim’s employer, Food

City, to find out if the victim had gone to work. She learned from an employee that her

mother was not at Food City that day. When Ms. Clemmons was finished at work, she went

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home, changed clothes, and took the trolley to the orthodontist. She persisted in trying to

reach her mother. At 5:00 p.m., Ms. Clemmons arrived back at her home. A few minutes

later, Detective Still knocked on her door and informed her that her mother had been killed

earlier that day. According to Ms. Clemmons, the victim left appellant in January 2008 and

stayed at the Hamilton Inn for about a week. Some time during that week, appellant stayed

with the victim in the hotel while visitors from North Carolina stayed at their apartment. The

victim later returned to live with appellant. Ms. Clemmons had previously seen her mother

with a black eye in November 2006.

Officer Joe Cox of the Knoxville Police Department was working crime scene detail

in 2008. His duties included taking photographs, collecting samples, collecting evidence,

and analyzing evidence or sending the evidence away to be analyzed. When he arrived at the

scene at ORNL Credit Union, he saw a maroon Infiniti in the parking lot and a deceased

woman on the ground. He photographed the scene and collected blood samples. In addition

to collecting blood spatter evidence, Officer Cox collected a cigarette lighter and a clump of

hair from the scene. He later collected appellant’s white t-shirt and pants. Officer Cox

collected a pair of tennis shoes from the scene. The insole of one of the shoes had been

dislodged, and the shoelace had been torn off. At the scene, Officer Cox noticed that the

trunk of the vehicle was open. He ordered removal of the vehicle by a wrecker that pulled

the vehicle onto the bed of the wrecker. The wrecker transported the vehicle to the police

department’s safety shop where it would be covered and placed on a lift so that investigators

could examine the bottom of the car.

When officers examined the bottom of the vehicle, Officer Cox saw evidence that

something had cleaned off parts of the underside of the car. He also observed stains that

appeared to be blood on the underside of the car, as well as some other material. He swabbed

the blood stains and forwarded them to the Tennessee Bureau of Investigation. The blood

and “brush off” were located on the front passenger side of the automobile. Officer Cox

swabbed blood stains from the front guard of the car, the rocker panel underneath the

passenger-side door, the tubing guard, and the sway bar guard. He also obtained a blood

swab from a back tire.

After extensive voir dire by appellant’s counsel, during which Officer Cox offered

information about his training, education, and experience, the trial court allowed Officer Cox

to testify as an expert in blood spatter analysis. Officer Cox testified that he collected a

blood sample from the gutter along Magnolia Avenue and from the sidewalk between

Magnolia Avenue and the credit union. Officer Cox explained that when blood goes straight

down at a ninety degree angle, the blood leaves a round impact mark with small marks called

spines protruding from it. The blood spatter from the gutter was round with a degree of

elongation. The spines pointed in a particular direction, which Officer Cox found useful in

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determining the general direction of motion. The blood spatters were not high velocity; high

velocity spatter would result in very small droplets, or misting. The blood on the sidewalk

had large spines all pointing in the same direction. Officer Cox opined that, based on the

direction of the spines on the blood splatter, the general direction of motion of the victim’s

body was toward the resting location of the victim’s body, or toward the credit union from

the street.

Officer Ron Trentham was in the motor unit of the Knoxville Police Department but

also served as a traffic accident reconstructionist. After voir dire, the trial court allowed

Officer Trentham to testify as an expert in accident reconstruction. In investigating an

accident where the front of a vehicle struck a pedestrian, Officer Trentham would expect to

see damage to the front bumper of the car and to the leading part of the hood. He would also

expect to see damage on the hood or on the windshield. If a car backed up and struck a

pedestrian, he would expect to see contact on the bumper or trunk deck area. Officer

Trentham considered dirt on a vehicle to be very important in determining whether a vehicle

made contact with another object or person. If he observed damage on a vehicle, it could be

previous damage; however, if something touched a dirty vehicle, the impact of the object that

touched it will disturb the dirt and make a smear. If a vehicle struck a pedestrian below his

or her center of gravity, the body would either be pushed forward or it would go up onto the

hood or the windshield. There should be some evidence, such as disturbed dirt, a dent, or

contact damage. If a car struck a pedestrian above his or center of gravity, the car would

push the pedestrian over and move on top of the body.

When Officer Trentham responded to the scene at the credit union, he believed he was

investigating a case involving a pedestrian being struck by a vehicle. Upon arrival, Officer

Trentham initially thought that a pedestrian was walking down the sidewalk and was struck

by a car entering the parking lot. At that time, he had not yet seen the front of appellant’s

vehicle. Officer Trentham walked around and surveyed the scene. He noted several drag

marks from the edge of the roadway leading toward the final resting spot of the victim and

the automobile. He also observed the presence of red drag marks that were consistent with

blood. He saw blood drops at the edge of the roadway and blood smear from the sidewalk

onto the asphalt area of the parking lot. Officer Trentham found blue drag marks that were

consistent with the victim’s denim jacket. All of the marks he found started at the edge of

the road and led up to the final point of rest of the victim’s body and appellant’s car. Officer

Trentham located a tan or brown scrape mark that was consistent with the victim’s skin and

the injury pattern the medical examiner found on the victim’s lower body. He observed two

small black marks that were consistent with the victim’s shoes. Again, all of the lines Officer

Trentham observed led from the street toward the credit union to the point where the victim’s

body came to rest. He was able to determine the direction of movement because the marks

were darker at the initial points of impact and faded as they moved forward.

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Officer Trentham’s examination of appellant’s vehicle indicated that the dirt around

the trunk key had been disturbed. He did not observe any disturbance of dirt around the

occupants’ sides of the vehicle. He determined that something had disturbed the dirt around

the front license plate holder and the lower part of the front bumper. These marks indicated

to Officer Trentham that the victim’s body was struck from the front as the vehicle moved

in a forward direction. He looked under the car with a flashlight and noticed blood on the

frame next to the right front wheel. He also saw blue lines that were consistent with the

victim’s denim jacket. Grease marks and dirt on the victim’s jacket were consistent with her

clothing coming into contact with the right front wheel area of appellant’s car.

As Officer Trentham completed his initial investigation at the crime scene, he

observed a cigarette lighter and a clump of hair at the point where he believed that the victim

was initially struck at the curb line. He testified that the driver of the wrecker that towed

appellant’s car to the Knoxville city impound lot did not enter the vehicle or turn the steering

wheel. Officer Trentham further insured that no one disturbed any dirt on the body of the

vehicle. He followed the car to the impound lot. He had the car taken into the police garage

and placed on a rack so that investigators could observe any further evidence. As part of the

reconstruction, Officer Trentham measured the vehicle. At the garage, he observed blood

running the length of the vehicle on the passenger side leading to the rear passenger side tire.

Just before the rear tire, he noticed a pattern of lines consistent with the victim’s jacket on

the frame of the car next to the rear tire. While at the garage, Officer Trentham transferred

the victim’s shoes and the clump of hair to Officer Cox.

Officer Trentham found that the marks on the victim’s left shoe were significant in

that they were consistent with the victim being dragged across the concrete and asphalt.

Officers found the shoestring just beside the driver’s door of the vehicle as it came to rest.

Officer Trentham gave his expert opinion regarding the point of impact between appellant’s

car and the victim. Based on the evidence and location of the blood, skin, and blue fibers,

he gleaned that, from the point where the victim was struck, she was then pushed by the

vehicle. The victim’s skin was transferred to the pavement as a result of her jogging pants

coming down, exposing her hip area to the concrete, and leaving marks. Officer Trentham’s

opinion was that the victim was lying on the ground bleeding at the curb line and that the

point of impact with appellant’s automobile was at the curb line.

L.B. Steele was assigned to the motor traffic unit of the Knoxville Police Department

and was Officer Trentham’s partner. After voir dire, the trial court qualified Officer Steele

as an expert in accident reconstruction. On the morning of March 5, 2008, Officer Trentham

called Officer Steele and asked him to gather their measuring equipment then proceed to the

crime scene. When he first arrived, Officer Steele believed he was responding to an accident

involving a vehicle striking a pedestrian. In reviewing the evidence, he and Office Trentham

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tried to determine how a pedestrian fatality could have occurred because the evidence

indicated that the victim had been lying on the ground, or at the very least, was lower to the

ground than she was to a standing position. Officer Steele took crime scene measurements

with their equipment and loaded the information into the data storage system. He later

transferred the data to a computer at the police department and made two discs containing

the information. The distance from the first blood drop near the edge of the roadway to the

left front tire at its resting position was 34.91 feet.

Special Agent Lisa Wessner was a special agent forensic scientist with the Tennessee

Bureau of Investigation (“TBI”) crime laboratory, assigned to the forensic serology and DNA

analysis unit. In the course of this case, she received a DNA sample from the victim, buccal

swabs from appellant, and swabs from appellant’s vehicle taken from a sway bar guard, metal

sheet, right rear tire, front guard and tubing guard. The sample from the sway bar guard

failed to indicate the presence of blood; the remainder of the swabs from the vehicle

contained blood. DNA obtained from the metal sheet, the front guard, and the tubing guard

matched the victim’s DNA profile. Agent Wessner could not obtain a DNA profile from the

rear tire because the DNA was insufficient or degraded. The probability of the DNA

belonging to an individual unrelated to the victim exceeded the current world population.

Officer Scott Noe with the Knoxville Police Department responded to a domestic call

made by the victim on November 16, 2006. When he arrived, Officer Noe observed that the

victim had a black eye. He transported the victim to the commissioner’s office so she could

sign a warrant against appellant. In the warrant, the victim alleged that she and appellant

argued over bus fare, at which time appellant punched her in the eye. Appellant pled guilty

to the charge.

The trial court allowed Dr. Darinka Mileusnic-Polchan to testify as an expert witness

in forensics. Dr. Mileusnic-Polchan responded to the crime scene at the credit union, where

she observed the victim in a supine, or face-up, position under the rear bumper of appellant’s

car. After reviewing the scene and taking photographs, Dr. Mileusnic-Polchan performed

the autopsy of the victim the same day. She took additional detailed photographs of the

victim’s clothing. Dr. Mileusnic-Polchan opined that in cases such as this, the existence of

conflicting information makes it necessary for her to document the case very carefully,

because even the smallest finding on the body can prove important in determining what

actually happened. Based on her findings, Dr. Mileusnic-Polchan formed the opinion that

the victim’s manner of death was a homicide.

In most cases involving a pedestrian accident, Dr. Mileusnic-Polchan would expect

to see injuries to the lower extremities, specifically the calves, knees, and sometimes the

thighs, of the victim. She did not find those injuries on the victim. She examined the

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victim’s body and documented every injury. Dr. Mileusnic-Polchan documented sixty

separate injuries. The victim suffered several head and neck injuries, including linear marks

on the chin consistent with tire marks. An abrasion by the right eyebrow displayed

directionality, indicating that the body was moving against the surface. Dr. Mileusnic-

Polchan found blood stains and hair attached to the shoulder of victim’s jacket, most likely

caused by forced bending of the head over the shoulder.

Dr. Mileusnic-Polchan noted that the victim’s right clavicle was broken, and the neck

and spine junction was fractured. The fracture was caused by extraordinary force that

separated the head from the neck. The tire marks on the victim’s neck indicated that the

vehicle’s rear tire ran over it. This injury was one of the primary causes of the victim’s death.

The victim also had linear abrasions under and on her right breast. Dr. Mileusnic-Polchan

described the injury to the victim’s breast area as indicating movement of the victim in a

particular direction, and attributed the injury to contact with the front bumper of appellant’s

vehicle. She analyzed a bruise pattern and a burn on the victim’s body and matched the

injuries to a hot part from underneath the car, perhaps part of the exhaust or catalytic

converter.

The victim’s abdomen sustained a great deal of injury, including “abrasions and

stretch abrasions.” Dr. Mileusnic-Polchan identified a tire track along the victim’s

abdominal abrasions. She stated that the tire marks could only have been made by the front

tires because the rear tires were bald and could not have left those particular indentations.

Dr. Mileusnic-Polchan pointed out a large burn that was over four inches long by two inches

across. The skin from that burn was retrieved from underneath the vehicle. She commented

on an extensive deep bruise on the right thigh that could only be consistent with the tire

crossing the victim’s thigh. The victim’s pelvis was completely crushed, including the

sacrum.

Dr. Mileusnic-Polchan noted that the victim’s back was relatively clear of injury,

which indicated that she was facing the vehicle with clothing covering her back. The victim

did, however, receive a road rash injury to her back and buttocks. In the sacral area, some

of the victim’s skin was missing. Dr. Mileusnic-Polchan explained that the pattern of the

injury established the direction of movement of the victim’s body.

As part of her investigation, Dr. Mileusnic-Polchan examined appellant’s vehicle at

the impound lot. She compared the victim’s injuries with the damage to and evidence on

appellant’s vehicle. Dr. Mileusnic-Polchan found that the evidence and victim’s injuries

supported the conclusion that the victim was struck by the front of the vehicle.

-12-

Dr. Gregory James Davis testified on behalf of appellant as an expert in the field of

forensic pathology. He reviewed all of the evidence collected in the case, together with

reports from the medical examiner and TBI. In scrutinizing Dr. Mileusnic-Polchan’s

testimony, Dr. Davis explained that the term “consistent with” merely implies that physical

evidence could support a particular scenario; the term itself does not mean that the scenario

or story is true. Dr. Davis explained that while the evidence is consistent with the

classification of the victim’s death as a homicide, it is also consistent with other

classifications.

Based on his review of the evidence, Dr. Davis could not offer an opinion as to

whether appellant intended to inflict harm on the victim, nor could he confirm that the

victim’s injuries were unidirectional. The injuries were consistent with being unidirectional

but were not indicative or diagnostic of them being unidirectional. Dr. Davis disputed Dr.

Mileusnic-Polchan’s finding that the injury on the victim’s face was consistent with being

run over by the tire of the car. If her face had been run over by a car, he would have

expected to find more fractures to the jaw and skull. Dr. Davis believed that the victim’s

death should have been classified as “undetermined” or “not determined.” His view of the

physical evidence was that the evidence was consistent with appellant’s backing over the

victim. The injuries sustained by the victim, specifically the wrist fracture and the abrasions

on both hands, were consistent with her walking away from the vehicle, falling, and being

struck by appellant’s vehicle.

James Alan Parham, a civil engineer with Parham Engineering Consultants, testified

on behalf of appellant. Mr. Parham’s primary focus was on highway design and

transportation safety. The trial court allowed him to testify as an expert in accident

reconstruction. In preparing for this case, Mr. Parham reviewed all of the evidence, reports,

and photographs. He also visited the scene of the incident on more than one occasion and

examined appellant’s automobile. Mr. Parham generally agreed with many of Officers

Trentham’s and Steele’s findings. However, Mr. Parham opined that the absence of black

scrape marks and scuffs going toward Magnolia Avenue does not rule out the possibility that

the victim’s body was dragged in that direction. Because of the downhill slope of the parking

lot, a body would not offer much resistance to being pushed. Also, the asphalt would offer

less friction force on a body than would the sidewalk.

Although Mr. Parham agreed that the victim was not standing at the time of impact,

he disagreed with the officers’ findings that the victim was pushed by appellant’s automobile

and dragged until her body was dislodged under the right rear tire. He stated that the police

department did not sufficiently document the vehicle in order for him to determine the

presence of dirt rub on the trunk, hood, or bumpers of appellant’s vehicle. Mr. Parham did

not find the photograph of the front license plate to be conclusive of dirt rub or interaction

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with a person. He did not find dirt rub documented anywhere on the topside of the vehicle

but found dirt rub underneath the vehicle itself. Mr. Parham identified dirt rub on the

undercarriage of appellant’s automobile. He did not believe that the officers’ opinions that

the victim was struck in one direction could be proven by the evidence.

Mr. Parham testified that his examination of appellant’s car was limited because the

car had been stored outdoors exposed to weather. He disagreed with Officer Steele about the

importance of storing the vehicle under cover, stating that in a low-impact case the data is

very fragile. Mr. Parham believed that one rain incident could compromise the evidentiary

value of the car.

Mr. Parham placed great value on the location of the victim’s broken shoelace. In his

opinion, the shoelace was broken due to a forceful break, such as a tire pinning the shoelace

to the ground as the body is being dragged. The location of the shoelace indicated to him that

the victim’s body had to be at the point where the shoelace was recovered when it was struck.

The shoelace would not have held such value to him if it were located closer to Magnolia

Avenue or if the body was located beyond the shoelace. Based on the evidence and

appellant’s theory of the incident, Mr. Parham offered the opinion that the physical evidence

was consistent with appellant’s explanation of the incident.

After deliberating, the jury found appellant guilty of second degree murder as a lesser-

included offense of first degree murder.

C. Facts from Sentencing

The victim’s daughter, Lachrisa Clemmons, and the victim’s son, Leon Boulanger,

offered victim impact evidence. Each of them testified regarding verbal and physical abuse

that the victim suffered at the hands of appellant. Virginia Thompson, the victim’s mother,

testified that the victim had been a happy child and that as an adult, she was uplifting to other

people. The victim was an optimistic and religious woman who prayed regularly for her

husband and others. At some point, appellant became withdrawn at family functions. Ms.

Thompson also witnessed a decline in the victim’s general disposition. She confronted

appellant once and advised him to pray about his problems instead of hitting the victim, but

he laughed at her.

Gail Carter met the Cornwells when she worked next door to where they both were

previously employed. Appellant and the victim were not married at the time. The victim was

slow to open up to Ms. Carter about personal issues. The victim’s co-workers, however,

called Ms. Carter on several occasions and reported that appellant struck the victim in their

presence. On one occasion, appellant dragged the victim through the parking lot by her hair.

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Several weeks later, Ms. Carter observed that the victim’s toes were broken. She denied that

appellant inflicted the injuries. On a separate occasion, appellant was beating the victim

when she ran to Ms. Carter’s office. Ms. Carter locked the door. Although the victim did

not want Ms. Carter to call the police, she did so. The victim suffered two black eyes but did

not want to press charges against appellant.

Ms. Carter worked in the office of a marriage counselor. When the victim told Ms.

Carter that she wanted to marry appellant, Ms. Carter advised her to consider the decision

carefully but that she would ultimately support her decision. Ms. Carter attended the

wedding. Sometime after appellant and the victim were married, the victim wanted to visit

her mother in North Carolina. The victim’s car was not working, so Ms. Carter allowed the

victim to borrow her car with the understanding that appellant was not to drive the car

because he did not have a valid license. After the victim returned, appellant would not return

Ms. Carter’s car. He told her he wanted to buy it. Ms. Carter said she would sell it, but

appellant said he would have to make payments. When Ms. Carter declined, she asked him

for the keys and appellant refused. She obtained a spare set of keys from her desk and drove

her car home.

Appellant testified at the sentencing hearing. He met the victim in North Carolina.

Appellant had been dealing drugs, and both he and the victim used drugs. He decided that

North Carolina was not a healthy place for him to live, and appellant talked to the victim

about leaving her family and moving to Knoxville. Upon relocating to Knoxville, appellant

and the victim stayed with friends. They both found jobs at the Marriott and moved into an

apartment. They stayed mostly drug-free, except for one mistake he made. In 2006,

appellant and the victim had an argument and he hit her. She filed charges and had him

arrested. The victim went to be with her family in North Carolina but later returned and

posted appellant’s bond. Appellant stated that he promised the victim that he would never

hurt her again. After that, he went to anger management classes and they attended a Bible

study together. Appellant maintained that he kept his promise to the victim and never struck

her again.

Appellant had a history of violence against women. He assaulted Africa Williams in

1990 and 1991. In 1992 and 1993, he assaulted Tina McBride. Although he began anger

management classes after pleading guilty to the charge involving the victim, he never

completed the classes.

After hearing testimony and receiving evidence, the court sentenced appellant as a

Range II offender to thirty-five years in prison. Following the trial court’s denial of his

motion for new trial, appellant timely filed this notice of appeal.

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II. Analysis

A. Alleged Ferguson Violation

Prior to trial, appellant filed a motion to dismiss the indictment pursuant to our

supreme court’s Ferguson decision. See generally Ferguson, 2 S.W.3d at 915-17. Appellant

contended that while under the State’s control, his vehicle lost exculpatory evidentiary value

because the State allowed the vehicle to remain outdoors, unprotected, and exposed to the

elements. The importance of the evidence, according to appellant, was that valuable dirt rub

evidence would have been visible at the point of contact on the automobile where it struck

the victim. While the State’s experts testified that they observed dirt rub on the front license

plate of the car and took photographs of the dirt rub, appellant argues that the photographs

did not clearly reflect their observation. Moreover, appellant emphasized the alleged

prejudice inherent in his experts being denied the opportunity to examine both the front and

the rear areas of the automobile to determine if dirt rub was present in either area.

In Ferguson, our supreme court considered the appropriate “consequences that flow

from the State’s loss or destruction of evidence which the accused contends would be

exculpatory.” Ferguson, 2 S.W.3d at 914. Our supreme court exercised its authority to

“expand the minimum level of protection mandated by the federal constitution,” Burford v.

State, 845 S.W.2d 204, 207 (Tenn. 1992), by rejecting the United States Supreme Court’s

“bad faith” standard in favor of a test that is less onerous on a criminal defendant. Ferguson,

2 S.W.3d at 916. See generally Arizona v. Youngblood, 488 U.S. 51 (1988). The court,

instead,“‘promulgate[d] . . . an analysis in which the critical inquiry is: Whether a trial,

conducted without the [lost or] destroyed evidence, would be fundamentally fair?’” State v.

Coulter, 67 S.W.3d 3, 54 (Tenn. Crim. App. 2001) (quoting Ferguson, 2 S.W.3d at 914). In

Coulter, this court reiterated the State’s general duty to preserve all evidence to allow a

criminal defendant the opportunity for discovery and inspection, but noted that for the

purpose of determining “fundamental fairness,” our supreme court “seemingly cited with

approval” the following standard enunciated in California v. Trombetta, 467 U.S. 479, 488-

89 (1984):

Whatever duty the Constitution imposes on the States to preserve evidence,

that duty must be limited to evidence that might be expected to play a

significant role in the suspect’s defense. To meet this standard of constitutional

materiality, evidence must both possess an exculpatory value that was apparent

before the evidence was destroyed, and be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonably available

means.

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Coulter, 67 S.W.3d at 54 (quoting Ferguson, 2 S.W.3d at 917).2 Only if the proof

demonstrates that the State had a duty to preserve the evidence and that the State failed in

that duty, the analysis then shifts to a consideration of the following factors in deciding the

consequences of the State’s breach:

(1) The degree of negligence involved;

(2) The significance of the destroyed evidence, considered in light of the

probative value and reliability of secondary or substitute evidence that

remains available; and

(3) The sufficiency of the other evidence used at trial to support the

conviction.

Id. (quoting Ferguson, 2 S.W.3d at 917). If, after due consideration of the three factors, the

trial court concludes that a trial without the missing or destroyed evidence would not be

fundamentally fair, the court may order dismissal of the charges. Ferguson, 2 S.W.2d at 917.

“Dismissal is, however, but one of the trial judge’s options.” Id. The trial court may craft a

special jury instruction or grant other appropriate remedies. Id.

On appeal, appellant argues that the trial court should have dismissed the indictment

against him or granted “other appropriate relief,” including prohibiting the State’s witnesses

from testifying about the presence or absence of dirt rub evidence. Notably, at trial, appellant

asked only for the remedy of dismissal of the indictment. Appellant did not request a special

jury instruction and did not ask the court to limit the testimony of the State’s witnesses. Nor

did he claim the trial court’s failure to do so was error at the hearing on the motion for a new

trial. Appellant is bound by the ground he asserted when making his Ferguson argument in

the trial court. See State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994).

He cannot assert a novel theory or request different relief on appeal. Id. at 635. Inasmuch

as appellant failed to request relief other than dismissal, he has waived his right to other such

relief. See State v. Randy Ray McFarlin, a/k/a Mac Ray McFarlane, No. M2010-00853-

CCA-R3-CD, 2012 WL 76902, at *9 (Tenn. Crim. App. Jan. 9, 2012) (holding that, “[t]o the

extent that the defendant may have claimed relief via Ferguson in any manner that would

2

Our court recently discussed this issue and pointed out that panels of this court have determined

that evidence should have been preserved without first finding that its exculpatory value was apparent. State

v. Jerome Sidney Barrett, No. M2010-00444-CCA-R3-CD, 2012 WL 2914119, at *21 (Tenn. Crim. App. July

18, 2012), perm. app. granted, No. M2010-00444-SC-R11-CD (Tenn. Sept. 17, 2012). The Barrett court

criticized the Coulter court's analysis of Ferguson; however, because Coulter is a published opinion, the

Barrett court was bound to follow it. Id. at *22.

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merely result in the grant of a new trial [rather than dismissal of the indictment], this issue

is waived”), perm. app. denied (Tenn. May 21, 2012).

Appellant contests the State’s allowing dirt rub and other physical evidence to degrade

from the vehicle while it sat unprotected in the elements. In analyzing the issue of

fundamental fairness, we note that officers observed the dirt rub evidence on the front of the

car. The location of the dirt rub was inculpatory, not exculpatory. Appellant does not

contend that further examination would have revealed dirt rub on the rear of the vehicle,

which would have been exculpatory in nature. He merely asserts that he suffered prejudice

because his experts could not independently examine the vehicle. However, law enforcement

officers testified about the lack of dirt rub evidence on the rear portion of appellant’s

automobile. When “the chances [were] extremely low that preserved samples would have

been exculpatory,” the Due Process Clause of the Fourteenth Amendment does not require

law enforcement agencies to preserve evidence for later use. Trombetta, 467 U.S. at 488-

491. Moreover, “[t]he possibility that . . . [evidence] could have exculpated respondent if

preserved or tested is not enough to satisfy the standard of constitutional materiality in

Trombetta.” Youngblood, 488 U.S. at 56 n.1.

Furthermore, the evidence was available at trial through comparable means. The

State’s witnesses, including two accident reconstructionists, an evidence technician, and the

medical examiner, each testified that he or she observed what appeared to be dirt rub on the

front license plate of the car and did not observe such evidence on the rear portion of the

automobile. They collectively documented blood spatter and other evidence on the front

portion of the undercarriage, which was consistent with the State’s theory of the case that

appellant struck the victim while traveling in a forward motion. All of the aforementioned

evidence was provided to appellant before the trial. In light of the officers’ initial findings,

all of which tended to inculpate appellant, any potentially exculpatory evidence was not

apparent to agents of the State. For these reasons, we conclude that the vehicle itself did not

possess sufficient evidentiary value to rise to the level of “constitutional materiality.”

Youngblood, 488 U.S. at 56 n.1.

Even if this court found the evidence to be material, analysis of the three Ferguson

factors would result in no relief. Addressing first the degree of negligence involved,

Ferguson, 2 S.W.3d at 917, we cannot conclude from our review of the record that the State

acted negligently. Law enforcement officers carefully documented all evidentiary aspects

of appellant’s vehicle by photographing dirt rub patterns, photographing the undercarriage

of the vehicle, and obtaining DNA swabs from various points on the vehicle. The only

complaint appellant has with the State’s collection of evidence is that the photograph of the

front bumper does not, in his opinion, reflect the presence of dirt rub. To the extent that

appellant argues there was no dirt rub evidence on the front of the vehicle, the jury received

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photographs of the dirt rub. The jury, as the trier of fact, reviewed the photographs and

determined for itself whether dirt rub was visible in the photographs. In light of the

photographic evidence and DNA testing, all of which was probative and reliable, the ability

to observe the actual dirt remaining on the vehicle months later was insignificant. See id.

The second prong of the initial inquiry focuses on whether the lost or destroyed

evidence is of such a nature that appellant would be “unable to obtain comparable evidence

by other reasonably available means.” Ferguson, 2 S.W.2d at 917. The State thoroughly

photographed appellant’s vehicle from all angles, including photographs taken of the

undercarriage. Our preceding discussion outlines the procedures utilized by the State in

preserving evidence. Appellant obtained “comparable” evidence through photographic

preservation of the evidence.

Finally, we conclude that the jury had sufficient evidence by which to sustain

appellant’s conviction, including but not limited to: (1) testimony regarding motive; (2) DNA

testing confirming the victim’s blood on the undercarriage of the vehicle; (3) blood spatter

evidence indicating directionality of the vehicle and the victim’s body; (4) medical testimony

regarding the identification of wound patterns and the mechanisms or parts of the vehicle that

caused them, and (5) photographs of the front of the vehicle license plate holder where

officers observed dirt rub evidence. See id.

For the foregoing reasons, “to conclude that the [vehicle] possessed exculpatory value

on the basis of the record before this court would constitute an exercise in pure speculation.”

Coulter, 67 S.W.3d at 54-55. The State did not have a duty to preserve the evidentiary value

of the exterior of appellant’s automobile, and even if it did, appellant’s trial was not rendered

fundamentally unfair without this evidence. Therefore, appellant is not entitled to relief on

this issue.

B. Expert Testimony

1. Standard of Review

Appellant contests the expert testimony of three of the State’s witnesses, medical

examiner Dr. Mileusnic-Polchan, and accident reconstructionists L.B. Steele and Ron

Trentham.

We begin our analysis with the proposition that admissibility of expert testimony is

governed by the Tennessee Rules of Evidence:

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If scientific, technical, or other specialized knowledge will substantially assist

the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702. Our supreme court has further defined the role of the trial court in

assessing the propriety of expert testimony:

Trial courts act as gatekeepers when it comes to the admissibility of expert

testimony. Their role is to ensure that an expert, whether basing testimony

upon professional studies or personal experience, employs in the courtroom the

same level of intellectual rigor that characterizes the practice of an expert in

the relevant field. A court must assure itself that the expert’s opinions are

based on relevant scientific methods, processes, and data, and not upon an

expert’s mere speculation. The court’s reliability analysis has four general

inter-related components: (1) qualifications assessment, (2) analytical

cohesion, (3) methodological reliability, and (4) foundational reliability.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotations

omitted). The supreme court further noted:

There are certain methods and foundations that, as a matter of law, are

established for purposes of admissibility as being reliable or unreliable either

by statute or by having already been assessed for their reliability in a prior

controlling judicial decision. There are also “ordinary cases” where

methodological and foundational reliability may be simply assumed in the

absence of some sufficiently weighty showing by the objecting party that

warrants a more in-depth inquiry. However, other cases will require trial courts

to make a more probing inquiry.

Scott, 275 S.W.3d at 403.

The trial court is vested with broad discretion in resolving questions regarding the

admissibility of expert testimony. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007).

On appellate review, we will not disturb a trial court’s decision regarding the admission or

exclusion of expert testimony absent an abuse of discretion. Scott, 275 S.W.3d at 404; see

Stevens, 78 S.W.3d at 832. A trial court abuses its discretion when it applies incorrect legal

standards, reaches an illogical conclusion, bases its decision on a clearly erroneous

assessment of the evidence, or employs reasoning that causes an injustice to the complaining

-20-

party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d

319, 337 (Tenn. 2006)).

2. Dr. Darinka Mileusnic-Polchan’s Testimony

Appellant filed a pre-trial motion requesting disclosure of the opinions to be proffered

by Dr. Mileusnic-Polchan as well as a hearing to determine the admissibility of her opinions.

Following an evidentiary hearing, the trial court determined that her opinions were

admissible. At trial, the State tendered Dr. Mileusnic-Polchan as an expert in the field of

forensic pathology. The court held a jury-out McDaniel hearing to ascertain the reliability

of her testimony. Dr. Mileusnic-Polchan is a board-certified forensic pathologist. She based

her opinions on her personal observations at the crime scene; the evidence, including her

examination of the vehicle; reports; witness statements; a professional treatise; and the

autopsy she conducted. Dr. Mileusnic-Polchan had been accepted as an expert witness in

other cases and permitted to testify in court. Following the hearing, the trial court ruled that

Dr. Mileusnic-Polchan could testify due to her expertise in the field of forensic pathology.

Appellant did not object to Dr. Mileusnic-Polchan’s being qualified as an expert by the court.

We first note that in the sixty-six pages of the State’s direct examination of the

witness, appellant lodged four objections, one to the form of a question. He objected to the

following three opinions: 1) that the front of appellant’s vehicle had an imprint of the denim

jacket victim was wearing when she was struck; 2) that the injury to the victim’s chest was

caused by the front license plate holder of appellant’s car; and 3) that there was a part on the

underneath side of the automobile that resembled a cheese grater and that the wound pattern

on the victim indicated forward movement of the car because of the skin was stretched and

not cut.

We must agree with appellant that Dr. Mileusnic-Polchan’s testimony regarding the

denim jacket leaving an imprint on the front of appellant’s vehicle was not a proper subject

for expert testimony by a forensic pathologist. We are inclined to view this as an expert’s

offering an opinion on a matter that would not substantially assist the trier of fact. The State

admitted several photographs of all angles of appellant’s automobile. A lay witness could

make the comparison as easily as an expert witness. Any error in this regard, however, is

harmless. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and

otherwise appropriate shall not be set aside unless, considering the whole record, error

involving a substantial right more probably than not affected the judgment or would result

in prejudice to the judicial process.”).

Appellant’s remaining two objections involve Dr. Mileusnic-Polchan’s testimony

about the manner of infliction of a wound or injury. We conclude that this is a proper subject

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upon which a medical examiner may offer testimony. To the extent that appellant argues

herein that said opinions constituted Dr. Mileusnic-Polchan’s testifying outside of her area

of expertise, we conclude otherwise. Her testimony did not involve accident reconstruction

or engineering, as appellant advances. Rather, she testified about the interaction between the

automobile and the victim’s body.

On appeal, appellant raises new challenges to the testimony of Dr. Mileusnic-Polchan

on two bases: 1) that Dr. Mileusnic-Polchan was biased in favor of the State; and 2) that Dr.

Mileusnic-Polchan testified outside of her area of expertise by testifying with regard to blood

spatter. Although appellant failed to contemporaneously object to the testimony on these

grounds, he raised the issue in his motion for new trial and on appeal. This court has held

waiver to be appropriate in such circumstances. See State v. Robert Lee Mallard, No.

M1999-00336-CCA-R3-CD, 1999 WL 1209523, at *1 (Tenn. Crim. App. Dec. 17, 1999).

While plain error review is available to this court as a tool by which to review

appellant’s new challenges, he does not request plain error review of this issue, and we do

not discern a basis for such under the facts of this case. State v. Gary Thomas Reed, No.

E2009-02238-CCA-R3-CD, 2011 WL 1842711, at *5 (Tenn. Crim. App. May 12, 2011),

perm. app. denied (Tenn. Aug. 24, 2011); see 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.”). Moreover, this court has previously held that a forensic pathologist may

offer testimony regarding blood spatter analysis. State v. Wayne Robert Wait, No. E2010-

01212-CCA-R3-CD, 2011 WL 5137178, at *9 (Tenn. Crim. App. Oct. 28, 2011) (holding

that blood spatter testimony is within the purview of a forensic pathologist). We further find

no error in the expert’s opinion that the manner of death was homicide. See, e.g., State v.

Ayers, 200 S.W.3d 618, 623 (Tenn. Crim. App. 2005) (holding that when the foundation of

an expert’s opinion is reliable, expert can testify that manner of death was homicide). But

see State v. Ward, 138 S.W.3d 245, 268 (Tenn. Crim. App. 2003) (disallowing expert

testimony that manner of death was homicide when foundation of opinion involved the

unreliable “rule of three” attributing homicide as cause of death when victim is the third child

under care of a single caretaker to suffer an undetermined cause of death). Appellant is not

entitled to relief on this issue.

3. Officers L.B. Steele and Ron Trentham

Appellant next argues that the trial court improperly qualified Officers L. B. Steele

and Ron Trentham as experts in the field of accident reconstruction. Appellant filed a pre-

trial motion to obtain the credentials of both witnesses and the opinions to be rendered by

each of them at trial. During a pre-trial motion hearing, appellant contested the qualifications

-22-

of Joe Cox and L.B. Steele to testify as experts. He did not address Officer Ron Trentham

as a possible expert witness. The State and appellant agreed that the field of accident

reconstruction is a generally accepted scientific field and is appropriate for expert testimony.

The State disclosed the officers’ reports to appellant in advance of trial. Although the trial

court did not hold a pre-trial hearing to ascertain the witnesses’ qualifications and credentials,

the court permitted appellant to ask questions on voir dire before it accepted the witnesses

as experts.

a. Qualifications of Officer Ron Trentham

Following his voir dire of Officer Trentham, appellant lodged no objection to the

court’s accepting him as an expert witness. In light of appellant’s failure to object to the trial

court’s ruling allowing Officer Trentham to testify as an expert in the field of accident

reconstruction, this issue is waived. Again, while plain error review is available to this court

as a tool by which to review appellant’s new challenges, he does not request plain error

review of this issue, and we do not discern a basis for such under these particular facts.

Gary Thomas Reed, 2011 WL 1842711, at *5. Appellant is not entitled to relief on this issue.

b. Qualifications of Officer L. B. Steele

Following his voir dire of L. B. Steele, appellant lodged an objection to the court’s

accepting Officer Steele as an expert witness. In ruling on the objection, the court stated that

the witness would likely testify about documentation and measurements. Appellant

rescinded his objection to the witness’s testimony if it were limited in scope as the court

expected. The court reserved ruling on appellant’s objection in the likelihood that Officer

Steele offered objectionable expert opinions.

As the trial court anticipated, Officer Steele’s testimony was factual in nature. He did

not offer any “expert” opinions regarding his synthesis of the evidence. Officer Steele’s

testimony indicated that he obtained measurements at the crime scene, loaded the information

into the data storage system, transferred the data to a computer at the police department, and

then made two discs containing the information. Appellant must not have found Officer

Steele’s testimony objectionable, as he did not renew his objection or ask the trial court for

a ruling on the issue. For these reasons, we find that appellant waived his complaint for our

review and decline to employ a plain error analysis. See Gary Thomas Reed, 2011 WL

1842711, at *5.

-23-

c. Substance of Accident Reconstructionists’ Testimony

In his brief, appellant contests the accident reconstructionists’ testimony as

demonstrating “a lack of expertise” in failing to adequately photograph the vehicle, failing

to protect the automobile from the elements, and failing to account for the slope of the

driveway at the credit union. The State responds that the experts’ opinions that are

disagreeable to appellant do not render them unqualified to offer said testimony. We agree.

Appellant presented his own accident reconstructionist as an expert to rebut and refute

many of the State’s experts contentions and opinions. His expert addressed the points of the

State’s experts testimony of which appellant complains on appeal. “‘[T]he jury is not bound

to accept expert testimony in preference to other testimony, and must determine the weight

and credibility of each in the light of all the facts shown in the case.’” Dellinger, 279 S.W.3d

at 292 (quoting Sparks, 891 S.W.2d at 616). “‘[T]he weight to be given [expert testimony]

is a question for the jury under careful instruction of the trial judge.’” State v. Ayers, 200

S.W.3d 618, 223 (Tenn. Crim. App. 2005) (quoting Mullendore v. State, 191 S.W.2d 149,

152 (1945)). Accrediting the verdict of a properly instructed jury, we discern no error with

respect to the qualifications of the expert witnesses or the opinions they rendered at trial.

C. Trial Testimony of Anthony Anderson and Stephanie Anderson

Appellant raises two issues pertaining to the trial testimony of Anthony Anderson and

Stephanie Anderson. He first contends that the State suppressed evidence, namely audiotape

recordings of interviews with the witnesses, and that the trial court erred in allowing the State

to present their testimony at trial.

1. Alleged Brady Violation

Appellant argues that the State violated the tenets of Brady v. Maryland, 373 U.S. 83

(1963), by withholding exculpatory or impeaching evidence until two days prior to trial. The

evidence in question consists of audiotapes of interviews with Anthony Anderson and

Stephanie Anderson. The State’s Brady violation was further compounded, asserts appellant,

by the trial court’s allowing the witnesses to testify despite the State’s alleged error.

In interpreting its holding in Brady, the United States Supreme Court succinctly

stated:

There are three components of a true Brady violation: The evidence at issue

must be favorable to the accused, either because it is exculpatory, or because

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it is impeaching; that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Although the inconsistencies among Mr.

Anderson’s statements to law enforcement, his testimony at the preliminary hearing, and his

trial testimony are minute, the audiotapes were arguably favorable to appellant in that they

could have been used to impeach Mr. Anderson’s trial testimony.

However, the second and third components of the Strickler standard are not

established by the facts of this case. This court has previously addressed the difference

between delayed disclosure of evidence and absolute non-disclosure of evidence:

Indeed, when there has been a delayed disclosure of evidence, as opposed to

a complete non-disclosure, Brady is normally inapplicable unless the delay

itself causes prejudice. When there has been a delayed disclosure, as opposed

to a non-disclosure, the appellant must establish that the delayed disclosure

prevented him from using the disclosed material effectively in preparing and

presenting his case.

The petitioner has failed to show how, or even allege, the delay in receiving

th e materials . . . prejudiced his case.

Norris E. Ray v. State, No. W2010-01675-CCA-R3-PC, 2011 WL 5996037, at *18 (Tenn.

Crim. App. Nov. 30, 2011) (internal citations omitted), perm. app. denied (Tenn. Apr. 24,

2012). Our holding in Norris E. Ray is dispositive of this issue. Appellant has neither

alleged nor proven that the delay in the State’s production of the audiotapes prejudiced his

case in any way. Our case law has not expanded the meaning of “suppression” for the

purposes of a Brady violation to include late disclosure wherein appellant suffered no

prejudice. As such, appellant has not demonstrated a “true Brady” violation. Strickler, 527

U.S. at 281-82. The trial court properly permitted the witnesses to testify.

2. Tennessee Rule of Evidence 404(b)

The State proffered the testimony of appellant’s neighbors Anthony and Stephanie

Anderson. Pursuant to appellant’s objection, the trial court held a 404(b) hearing to

determine the admissibility of their testimony. Tenn. R. Evid. 404(b).

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Rule 404(b) provides:

Other Crimes, Wrongs, or Acts.—Evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing such

evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the

record the material issue, the ruling, and the reasons for admitting the

evidence; and

(3) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Possible “other purposes” for which evidence of other crimes,

wrongs or acts may be admitted include identity (including motive and common scheme or

plan), intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b), Advisory Comm’n

Commt.

Thus, to satisfy the requirement of relevancy, the first inquiry by the trial court must

be whether “‘a material issue exists other than conduct conforming with a character trait.’”

State v. Cary, 922 S.W.2d 511, 514 (Tenn. 1996) (quoting State v. Rickman, 876 S.W.2d

824, 829 (Tenn.1994)). Upon the court’s satisfaction of the existence of a material issue,

the trial court must then weigh the proffered evidence to determine whether the probative

value outweighs the danger of unfair prejudice to the defendant. Cary, 922 S.W.2d at 514

(citing Rickman, 876 S.W.2d at 829). The trial court must finally find that appellant

committed the other crimes, wrongs, or acts by clear and convincing evidence. Id. (citations

omitted).

When it substantially complies with the procedural requirements of Rule 404(b), the

trial court’s determination of admissibility is entitled to deference on appeal. State v. Gilley,

297 S.W.3d 739, 758 (Tenn. 2008); see State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

In reviewing a trial court’s ruling on 404(b) evidence, an appellate court may not disturb the

lower court’s ruling absent an abuse of discretion. Gilley, 297 S.W.3d at 758; State v.

Thacker, 164 S.W.3d 208, 239 (Tenn. 2005).

-26-

The substance of Anthony Anderson’s testimony was that he heard appellant yell

obscenities at his wife and threaten to kill her. Stephanie Anderson’s testimony recounted

her overhearing appellant’s argument with the victim and his calling the victim profane

names. Following the jury-out proffers, the trial court determined that their testimony was

relevant to the material issue of appellant’s intent and motive. The trial court found that the

probative value of the evidence outweighed the potential for unfair prejudice. Finally, the

court found by clear and convincing evidence that appellant committed the acts to which the

Andersons testified.

Over the State’s objection, the trial court disallowed testimony by Mrs. Anderson that

she heard victim tell appellant, “Carlos, you would be that stupid to kill me and sit in the jail

cell the rest of your life? You’re stupider than what I think you are.” Clearly the trial court

followed the procedural mandates of 404(b) and Tennessee case law in ascertaining the

admissibility of the proffered testimony and erred on the side of caution in disallowing

questionable evidence. In light of the trial court’s substantial compliance with the procedural

requirements, we defer to the trial court’s ruling. The trial court did not abuse its discretion

in admitting the testimony of Anthony and Stephanie Anderson.

3. Failure to Declare a Mistrial

Although the trial court disallowed Mrs. Anderson from testifying that she heard the

victim state, “Carlos, you would be that stupid to kill me and sit in the jail cell the rest of

your life? You’re stupider than what I think you are,” the court did not issue said ruling until

trial was well underway. The prosecutor had already used the comment in her opening

statement. Her remarks to the jury did not elicit an objection from appellant. During trial,

upon receiving the trial court’s ruling excluding this testimony, appellant moved for a

mistrial. See State v. J.C. Fair and Krederick Fair, No. W2007-00730-CCA-R3-CD, 2009

WL 2501991, at *15 (Tenn. Crim. App. Aug. 14, 2009) (holding that “[d]espite the absence

of a contemporaneous objection, [appellant] did move for a mistrial”), perm. app. denied

(Tenn. Feb. 22, 2010). Thus, appellant preserved this issue for our review.

A trial court may declare a mistrial if it appears that some matter has occurred which

would prevent the jury from reaching an impartial verdict. Arnold v. State, 563 S.W.2d 792,

794 (Tenn. Crim. App. 1977). A trial court should only declare a mistrial in criminal cases

where a manifest necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443

(Tenn. Crim. App. 1991). A mistrial is appropriate “when a trial cannot continue or a

miscarriage of justice would result if it did.” State v. McPherson, 882 S.W.2d 365, 370

(Tenn. Crim. App. 1994). This court will review the trial court’s decision to grant or deny

a mistrial for abuse of discretion. See State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998)

(citing State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990)). The party requesting the mistrial

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bears the burden of establishing the necessity for it. State v. Williams, 929 S.W.2d 385, 388

(Tenn. Crim. App. 1996).

In ruling on appellant’s motion for a mistrial, the trial court stated:

This is a–this is an insignificant–in the overall scheme of this trial and the

evidence that’s come into this trial, this is insignificant. . . . We’ve got all

kinds of physical proof. We’ve got all kinds of eyewitness testimony. We’ve

got the statement of the defendant. We’ve got expert proof . . .whether or not

that–those eight words were spoken or not spoken is not going to make a

difference in this trial, period.

Clearly, in light of the evidence the State had developed up to that point of the trial,

the court did not believe that the prosecutor’s statement during her opening remarks would

result in a miscarriage of justice.

Our 2008 decision in State v. Willie R. Dyer is instructive on this issue. State v. Willie

R. Dyer, No. M2007-02397-CCA-R3-CD, 2008 WL 4949266 (Tenn. Crim. App. Nov. 19,

2008), perm. app. denied (Tenn. April 27, 2009). In Dyer, appellee 3 lodged a pre-trial

objection to the introduction of blood alcohol concentration levels, claiming a problem with

the chain of custody. Willie R. Dyer, at *1. The trial court denied the motion at that time but

warned the State that if it mentioned the blood alcohol concentration level in its opening and

the court later deemed the evidence inadmissible, the court would order a mistrial with

prejudice. Id. Despite the trial court’s admonition, the State nonetheless mentioned the

blood alcohol concentration level in its opening statement. Id. During trial, the court

conducted a jury-out hearing regarding the evidence. Id. at *2. After hearing testimony at

trial from officers and agents from TBI, the trial court excluded the evidence. Id. The trial

court ultimately ordered a mistrial.

On appeal, after holding that the trial court erred in its exclusion of the blood

concentration evidence, this court then considered whether the trial court’s granting of a

mistrial was appropriate. Id. at *6. Applying the “manifest necessity” standard, we held:

We agree with the State that there was no manifest necessity for a mistrial.

Having excluded from evidence the results of Appellee’s blood alcohol test,

the trial court could have instructed the jury that the opening statement of the

3

The procedural history of the Dyer case is that defendant Dyer moved for a mistrial, which the trial

court granted. The State appealed, thus, for our discussion of the case, the State is appellant and the

defendant is appellee.

-28-

prosecutor is not evidence and that the panel should not consider the reference

to the test results as such. This is typically the manner in which references in

opening statements to evidence that is later excluded is handled.

Id. at *6.

We agree with the rationale employed by the Willie R. Dyer court. Although appellant

did not request a special curative instruction, the trial court charged the jury, “The statements,

arguments, and remarks of the attorneys are intended to help you in understanding and

applying the law, but they are not evidence. You should disregard any statements made that

you believe are not supported by the evidence.” Jurors are presumed to follow the

instructions given to them by the trial court. State v. Smith, 893 S.W.2d 908, 914 (Tenn.

1994). It is noteworthy that in the instant case, the State was not forewarned of the

possibility of mistrial if it mentioned evidence in its opening statement that the court later

found to be inadmissible. Following our precedent in Willie R. Dyer, we hold that the trial

court did not abuse its discretion in denying appellant’s motion for a mistrial.

D. Domestic Violence Affidavit of Complaint

The court held a jury-out hearing to discuss the admissibility of evidence of the

victim’s prior injuries. The parties raised three separate instances: 1) the victim’s daughter

returned home from a trip and observed her mother with fourteen stitches on her face and two

broken toes but did not have personal knowledge about how the victim received the injuries;

2) the victim sustained an injury to her arm at the hands of appellant but reported to the

hospital that she injured her arm at work and no one could connect appellant with the injury;

and 3) the victim signed an affidavit for a warrant accusing appellant of domestic violence,

to which appellant pled guilty.

Questions regarding the admissibility of evidence rest within the sound discretion of

the trial court, and this court will not disturb the trial court’s ruling absent of a clear showing

of abuse. State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A trial court abuses its

discretion when it applies an incorrect legal standard or reaches an illogical or unreasonable

conclusion that causes an injustice to the complaining party. Ruiz, 204 S.W.3d at 778 (citing

Howell, 185 S.W.3d at 337).

In discussing the evidentiary issues pertaining to the victim’s various injuries,

appellant argued to the court that if it were to conduct a 404(b) analysis of the first two

instances, the evidence would be deemed highly prejudicial. Tenn. R. Evid. 404(b). Without

necessity of a hearing, the trial court excluded the first two allegations of injuries. The court,

however, ruled that the State would be allowed to introduce evidence of the domestic

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violence warrant because appellant pled guilty to it. By entering a guilty plea, appellant

admitted the allegations, thus transforming the allegations into an admission.

Appellant did not request a 404(b) hearing on the admissibility of the warrant. In fact,

appellant agreed that the warrant was admissible at trial. The State introduced the warrant

through the testimony of the responding officer, Scott Noe. Officer Noe testified with regard

to receiving the call, interviewing the victim, and observing her injuries. He then read the

summary aloud to the jury. Appellant’s complaint on appeal is that the court erred by

allowing the police officer to read the narrative segment of the affidavit to the jury, to which

appellant contemporaneously objected at trial. In his brief, appellant asks this court to

employ a 404(b) analysis with regard to the officer’s reading of the affidavit, not to the

court’s admission into evidence of the warrant itself.

We first note that because appellant failed to request a 404(b) jury-out hearing when

the officer first began to read the warrant aloud, appellant has waived his right to appellate

review of this issue. State v. Undray Luellen, No. W2009-02327-CCA-R3-CD, 2011 WL

2557010, at *5 (Tenn. Crim. App. June 27, 2011), perm. app. denied (Tenn. Oct. 18, 2011).

Moreover, we fail to discern how application of Rule 404(b) would have precluded the

reading of the warrant at trial or would entitle appellant to relief in this court. Appellant did

not object to the State’s introduction of the domestic violence warrant. The warrant itself

was entered into evidence through Officer Noe. The warrant was not redacted in any form,

nor did appellant request redaction. It is axiomatic that the jury would receive the warrant

and have the opportunity during deliberations to read the content thereof. Appellant’s

attempt to make the comparison between the jury’s opportunity to read the warrant and the

jury hearing the language of the warrant from the officer results in a distinction with no

practical difference. The trial court did not abuse its discretion in allowing the police officer

to read a segment of the warrant that would soon be in the jury’s hands.

E. State’s Closing Argument

In its closing argument, the State advanced its theory of the case by arguing to the jury

that appellant punched the victim in the face and knocked her to the ground before running

over her with his vehicle. Appellant claims error, stating that there was no evidence to

support the State’s theory and that the argument constituted “inflammatory speculation.”

Our supreme court has aptly noted that “[c]losing arguments in criminal cases have

a ‘rough and tumble quality’ about them.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008)

(quoting State v. Skakel, 888 A.2d 985, 1060-61 (2006)). The court further held:

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A criminal conviction should not be lightly overturned solely on the basis of

the prosecutor’s closing argument. An improper closing argument will not

constitute reversible error unless it is so inflammatory or improper that it

affected the outcome of the trial to the defendant’s prejudice. When called

upon to review the propriety of a prosecutor’s closing argument, the court

should consider: (1) the conduct at issue in light of the facts and circumstances

of the case, (2) the curative measures undertaken by the trial court and the

prosecution, (3) the intent of the prosecutor in making the improper argument,

(4) the cumulative effect of the improper argument and any other errors in the

record, and (5) the relative strengths and weaknesses of the case.

Trial courts have significant discretion to control closing arguments.

Ordinarily, counsel must object contemporaneously to a perceived improper

argument. However, when flagrantly improper arguments are made, the trial

court, with or without objection, should step in and take proper curative action.

Some arguments may be so exceptionally flagrant that they constitute plain

error and provide grounds for reversal even if they were not objected to.

Banks, 271 S.W.3d at 131-32 (internal citations and quotations omitted). While we would

ordinarily employ an abuse of discretion standard of review in determining whether the trial

court allowed the prosecutor too much latitude during closing argument, appellant

acknowledges that he failed to contemporaneously object to the comment by the prosecutor.

State v. Hall, 976 S.W.2d 121, 157 (Tenn. 1998) (citing State v. Sutton, 562 S.W.2d 820, 823

(Tenn. 1978)). Our analysis is thus limited to a review for plain error.

Closing arguments that do not elicit an objection warrant reversal only in exceptional

circumstances. Banks, 271 S.W.3d at 132 n. 30 (citing United States v. Smith, 508 F.3d 861,

864 (8th Cir. 2007)). We adhere to the principle that “‘fleeting comments that passed without

objection during . . . closing argument in the trial court should not be unduly magnified when

the printed transcript is subjected to painstaking review in the reflective quiet of an appellate

judge’s chambers.’” Id. (quoting United States v. Mullins, 446 F.3d 750, 758 (8th Cir.

2006)).

This court has previously analyzed a prosecutor’s closing argument under the “plain

error” standard of review. State v. Gann, 251 S.W.3d 446, 462 (Tenn. Crim. App. 2007). This

court characterized the State’s closing as an “argument on the defendant’s character, the

brutal nature of the crime, and the strategy of the defense” and opined that the statements

“were improper, inflammatory, and utterly indefensible as they violate nearly every rule

established for proper closing argument.” Gann, 251 S.W.3d at 462. We found that the

prosecutor’s comments were intentional, in light of having been previously cautioned by the

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supreme court to “temper” his closing arguments. Id. The State’s comments were so

egregious that this court stated it would have reversed appellant’s convictions had counsel

objected appropriately. Id.

Even so, in Gann this court was not convinced that “a substantial right of the accused

was adversely affected” or that “consideration of the issue is necessary to do substantial

justice. Id. We also noted that the standard contained in Tennessee Rule of Criminal

Procedure 52, “error that affects substantial rights” has been construed as “error with a

prejudicial effect on the outcome of a judicial proceeding.” Id. at 462-63 (quoting United

States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)).

Appellant acknowledges that he did not contemporaneously object to the State’s

closing argument but insists that “[n]evertheless, trial courts have a duty to restrict any

improper argument.” Appellant fails to address, much less establish, the factors supporting

a finding of plain error. We decline to infer that appellant is invoking this court’s authority

to conduct a plain error review, nor do we discern a basis for such under the facts of this

case. Gary Thomas Reed, 2011 WL 1842711, at *5; see 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.”). Appellant is not entitled to relief on this issue.

F. Sentencing Issues

Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure states that an appellant’s

brief shall contain the following with respect to an argument:

(A) the contentions of the appellant with respect to the issues presented, and

the reasons therefor, including the reasons why the contentions require

appellate relief, with citations to the authorities and appropriate

references to the record (which may be quoted verbatim) relied on; and

(B) for each issue, a concise statement of the applicable standard of review

(which may appear in the discussion of the issue or under a separate

heading placed before the discussion of the issues)[.]

Tenn. R. App. P. 27(a)(7)(A)-(B). Moreover, Rule 10(b) of the Rules of the Court of

Criminal Appeals reads, “Issues which are not supported by argument, citation to authorities,

or appropriate references to the record will be treated as waived in this Court.” Appellant’s

raises two arguments pertaining to sentencing errors. While appellant cites to the record,

neither argument contains a statement of the applicable standard of review or citation to any

-32-

legal authority. The sentencing issues raised in appellant’s brief are deemed waived. If we

reviewed the sentencing issues, we would nonetheless find no error.

1. Standard of Review

In determining an appropriate sentence, a trial court must consider the following

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the

presentence report; (3) the principles of sentencing and arguments as to sentencing

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence

and information offered by the parties on the mitigating and enhancement factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; and (7) any statement the defendant makes on

his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann.

§§ 40-35-102, -103, -113, -114, -210(b) (2010). “The sentence imposed should be the least

severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.

Code Ann. § 40-35-103(4) (2010).

When imposing a sentence within the appropriate range of punishment for a

defendant,

the court shall consider, but is not bound by, the following advisory sentencing

guidelines:

(1) The minimum sentence within the range of punishment is the sentence

that should be imposed, because the general assembly set the minimum

length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate,

by the presence or absence of mitigating and enhancement factors set

out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210 (2010). From this, “the trial court is free to select any

sentence within the applicable range so long as the length of the sentence is ‘consistent with

the purposes and principles of [the Sentencing Act].’” State v. Carter, 254 S.W.3d 335, 343

(Tenn. 2008) (quoting Tenn. Code Ann. § 40-35-210(d)).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

minimum sentence and rendered enhancement and mitigating factors advisory only. See

Tenn. Code Ann. §§ 40-35-114, 40-35-210(c) (2010). The 2005 amendments set forth

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certain “advisory sentencing guidelines” that are not binding on the trial court; however, the

trial court must nonetheless consider them. See id. § 40-35-210(c). Although the application

of the factors is advisory, a court shall consider “[e]vidence and information offered by the

parties on the mitigating and enhancement factors in §§ 40-35-113 and 40-35-114.” Id. § 40-

35-210(b)(5). The trial court must also place on the record “what enhancement or mitigating

factors were considered, if any, as well as the reasons for the sentence, to ensure fair and

consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing

factors is left to the sound discretion of the trial court. Carter, 254 S.W.3d at 345. The burden

of proving applicable mitigating factors rests upon appellant. State v. Mark Moore, No.

03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The

trial court’s weighing of the various enhancement and mitigating factors is not grounds for

reversal under the revised Sentencing Act. Id. at 345 (citing State v. Devin Banks, No.

W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007),

aff'd as corrected, 271 S.W.3d 90 (Tenn. 2008)).

Additionally, when a trial court orders a sentence involving confinement, the court

should consider whether: (A) “confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;” (B) “confinement is necessary to

avoid depreciating the seriousness of the offense” or to “provide an effective deterrence to

others likely to commit similar offenses;” or (C) less restrictive measures have been

frequently or recently applied to defendant unsuccessfully. Tenn. Code Ann. § 40-35-103(1)

(2010).

When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, ___ S.W.3d ___, No.

E2011-00005-SC-R11-CD, 2012 WL 2012 WL 4380564, at *17 (Tenn. Sept. 26, 2012). If

a trial court misapplies an enhancing or mitigating factor in passing sentence, said error will

not remove the presumption of reasonableness from its sentencing determination. Id. at 17.

This Court will uphold the trial court’s sentencing decision “so long as it is within the

appropriate range and the record demonstrates that the sentence is otherwise in compliance

with the purposes and principles listed by statute.” Id. Moreover, under such circumstances,

appellate courts may not disturb the sentence even if we had preferred a different result. See

State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party challenging the sentence

imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn.

Code Ann. § 40-35-401 (2010), Sentencing Comm'n Cmts.; State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991).

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2. Trial Court’s Finding as to Range of Punishment

Appellant maintains that the trial court erred in accepting evidence of prior

convictions in the form of a certified packet of information from North Carolina, commonly

known as a “pen pack.” He claims that the evidence is unreliable because it does not contain

sufficient identifying information such as docket numbers and dates of convictions. We

disagree.

The certified packet included copies of photographs/mug shots, fingerprints, and

copies of the judgments of conviction, including dates of offenses. The presentence report

further detailed appellant’s lengthy criminal history, which also included docket numbers,

dates of offenses, and dates of dispositions.

In reviewing the propriety of a trial court considering prior convictions that are not

established by certified copies of judgments, this court reasoned:

Under the Tennessee Rules of Evidence, properly certified copies of judgments

of conviction or of other official records showing such convictions would be

admissible as an exception to the hearsay rule of exclusion. See Tenn. R. Evid.

803(22), 901 and 902. It is such a document that the defendant claims should

have been used in this case. However, by T.C.A. § 40-35-209(b) allowing

“reliable hearsay” other than that allowed by the rules of evidence, the

legislature apparently did not intend such a restriction. Further, although

“certified copies of convictions” are included in § 40-35-209(b) as an explicit

example of reliable hearsay, we do not read the statute to mean that use of a

certified copy is the only admissible documentary method of proving the

existence of a conviction for sentencing purposes under a preponderance of the

evidence standard.

In this respect, we do not believe that the legislature contemplated that a trial

court must exclude from the evidence or refuse to consider information about

prior convictions solely because it is only contained in a presentence report.

Unless the parties agree to a specific sentence in a felony case, a presentence

investigation must be conducted and a report made to the trial court. T.C.A. §

40-35-205(a) and (d). The report must contain the defendant’s record of prior

convictions. T.C.A. § 40-35-207(a)(4). At the conclusion of a sentencing

hearing, in determining an appropriate sentence, the trial court must consider

the presentence report and the sentence is to be based in part upon that report.

T.C.A. § 40-35-210(b)(2) and (g).

-35-

Obviously, these statutes contemplate the use of presentence investigative

procedures which assure the acquisition of reasonably reliable information and

it is incumbent upon the trial court to insure that such procedures are used.

However, we see little problem in concluding that a trial court is in the best

position to know the procedures used by presentence officers in his or her

court and is entitled to rely on such a report’s contents, absent a showing that

the report is based upon unreliable sources or is otherwise inaccurate. Such a

showing may occur through the report, itself, or through other evidence

submitted at the sentencing hearing.

State v. Richard J. Crossman, No. 01C01-9311-CR-00394, 1994 WL 548712, at *5-6 (Tenn.

Crim. App. Oct. 6, 1994).

Based on this rationale, we conclude that the trial court’s reliance on certified

documents from North Carolina and the presentence report was proper. Both the documents

from North Carolina and the presentence report contained identifying information such as

docket numbers, dates of offenses, dates of conviction, and sentences imposed. The

information was sufficient for the court to ascertain which felonies could properly be

considered. As evidence thereof, the trial court excluded one of the felony drug convictions

because it bore the same offense date as another conviction. The evidentiary record

establishes that appellant had at least two requisite felony convictions in his criminal history

to satisfy the statutory requirement for sentencing as a Range II offender. While some of

appellant’s convictions are listed in the presentence report without corresponding

documentation from North Carolina, the two sources of information taken together provide

a comprehensive criminal history on which the trial court properly relied in sentencing

appellant as multiple offender. Appellant neither raised an argument concerning the

presentence report or the investigative methods utilized in researching his criminal history

nor presented evidence tending to demonstrate the report’s unreliability or inaccuracy.

Appellant has not met the burden of establishing that the trial abused its discretion in

sentencing him as a Range II offender. Therefore, the trial court properly sentenced

appellant.

3. Trial Court’s Consideration of Mitigating Factor

Appellant cites as error the trial court’s failure to attribute weight to the mitigating

evidence he presented at the sentencing hearing. The trial court found the following statutory

enhancement factors: Number (1): The defendant has a previous history of criminal

convictions or criminal behavior, in addition to those necessary to establish the appropriate

range; and Number (8): The defendant, before trial or sentencing, has failed to comply with

the conditions of a sentence involving release into the community. Tenn. Code Ann. § 40-

-36-

35-114(1), (8) (2010). Appellant urged the court to consider the fact that he immediately

summoned help for the victim upon realizing he ran over her as a mitigating factor.

A trial court’s weighing of enhancing and mitigating factors is entrusted to the sound

discretion of the trial court. Carter, 254 S.W.3d at 345; see also Tenn. Code Ann. § 40-35-

210 (2010), Sentencing Comm’n Commt; State v. Kelley , 34 S.W.3d 471, 479 (Tenn. Crim.

App. 2000) (“weight to be afforded an existing factor is left to the trial court’s discretion so

long as it complies with the purposes and principles of the 1989 Sentencing Act and its

findings are adequately supported by the record”). Because enhancing and mitigating factors

have been rendered merely advisory by the revised Sentencing Act, the trial court’s discretion

has been broadened. Carter, 254 S.W.3d at 345. In considering the enhancing and

mitigating factors, the trial court gave particular weight to (1), appellant’s long history of

domestic violence. See Tenn. Code Ann. § 40-35-114(1) (2010). In considering appellant’s

request to consider his flagging down a passing motorist as a mitigating factor, the trial court

found the proffered evidence “unconvincing.”

Our supreme court has reiterated the deference to be given to a trial court’s sentencing

decision, stating that “if the trial court followed the statutory sentencing procedure, made

findings of fact that are adequately supported in the record, and gave due consideration to the

factors and principles that are relevant to sentencing under the 1989 Sentencing Act, the

court may not disturb the sentence even if a different result were preferred.” State v. Ralph,

347 S.W.3d 710, 717 (Tenn. 2010) (citing State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.

Crim. App. 1991)). The trial court followed the statutory procedure for sentencing and

appropriately considered applicable sentencing principles, thus, we attribute a presumption

of reasonable to the trial court’s sentencing order. Because the trial court imposed a lawful

sentence, we uphold the sentence.

CONCLUSION

We have thoroughly reviewed the record and have considered the briefs of the parties

and applicable law. After due consideration, we discern no error in the trial court requiring

reversal of appellant’s conviction and sentence.

Therefore, we affirm the judgment of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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