State of Tennessee v. Cordell Bufford

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 5, 2014

STATE OF TENNESSEE v. CORDELL BUFFORD

Appeal from the Criminal Court for Shelby County

No. 11-03558 Chris Craft, Judge

No. W2013-00841-CCA-R3-CD - Filed May 20, 2014

The defendant, Cordell Bufford, appeals his Shelby County Criminal Court jury conviction

of rape of a child, claiming that the trial court erred by refusing to enforce a plea agreement

with the State, by denying his request for funds to hire an expert witness, by denying his

motions to exclude certain evidence, by prohibiting cross-examination of the victim’s mother

about the victim’s previous sexual abuse pursuant to Tennessee Rule of Evidence 412, and

by denying his request for a special jury instruction. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.

W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Timothy J. Williams and Krista Holder-Williams, Memphis, Tennessee, for the appellant,

Cordell Bufford.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Abby Wallace and Jennifer

Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The defendant’s conviction relates to a single incident of his raping the then

seven-year-old victim, M.M., on June 12, 2009.1

At the September 2012 trial, the victim’s mother, J.M., testified that in June

1

As is the policy of this court, we identify the minor victim only by her initials.

2009, she and her four children lived at the Millington Inn with the defendant, who was

J.M.’s boyfriend at the time.2 She said that neither she nor the defendant owned a car, so

they often borrowed the defendant’s mother’s van. On the morning of June 12, 2009, the

defendant drove the van from the Millington Inn to pick up his mother and take her to work.

J.M. said that the defendant “was going to wash some clothes” and that the victim “went with

him to play on the computer [and] to make sure that he could get the van to take [J.M.] to the

doctor later that day.” She explained that the defendant’s mother was more likely to allow

the defendant to keep her van if one of the children was with him. She said that it was the

defendant’s idea to take the victim rather than any of the other children with him. The

defendant and the victim left the Millington Inn at approximately 7:15 a.m., and she next

spoke with the defendant at approximately 10:00 a.m. J.M. said that she telephoned the

defendant to ask “about how long they were going to be . . . because [J.M.] had to go to the

doctor.” She explained that she did not have a doctor’s appointment but that she “just wanted

to go to the doctor.” She said that the defendant promised to arrive “[s]hortly,” and when he

did not, she “tried to call back” sometime around noon. J.M. said that the defendant did not

answer the telephone and that she did not speak with him until sometime between 2:00 p.m.

and 3:00 p.m.

J.M. testified that she remained at the Millington Inn all day and that the

defendant did not pick her up at any point and drive her to the walk-in clinic. She said that

when the defendant and the victim returned to the Millington Inn, the defendant “seemed a

little like . . . he had been drinking.” The victim, she said, “was just real quiet, which is not

like her.” J.M. recalled that when she went outside the motel room to smoke a cigarette, the

victim followed her. At that point, the victim told J.M. that the defendant “had touched her

and that he put his private in her private and peed on her.” The victim told J.M. that “she told

[the defendant] to stop and that she was crying and he told her to shut up, he was going to

whoop her.” The victim also told J.M. that the defendant “pulled up some pornographic

pictures just girls kissing on girls, stuff like that.” The defendant did not object to this

testimony as hearsay or on any other ground. Following the victim’s revelation, J.M. took

the victim “into the bathroom and looked at her and noticed she had been bleeding at one

point in time.” She said that she and the victim remained in the motel room with the

defendant and the other children while a heavy storm raged outside. She said that after the

storm stopped and after the defendant fell asleep, she “took all [her] children up to the front

office and called the police.”

J.M. said that she and the victim gave statements to a Shelby County Sheriff’s

Office (“SCSO”) detective, who then transported J.M. and the victim to Le Bonheur

Children’s Hospital (“Le Bonheur”), where the victim underwent “a gynecological exam.”

2

To protect the anonymity of the minor victim, we also refer to the victim’s mother by her initials.

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J.M. said that she did not change the victim’s clothing or underwear between the time that

the defendant and the victim arrived back at the motel and the time she telephoned the police.

She said that she did not give the victim a shower or a bath during the intervening time.

During cross-examination, J.M. testified that when the victim returned to the

Millington Inn with the defendant, she was wearing a matching pink shorts and shirt set that

“wasn’t one of her outfits at all” and underwear that did not belong to the victim either. J.M.

maintained that she and the defendant never engaged in sexual relations in the motel room

while the children slept in the next bed. J.M. clarified that she saw blood in the victim’s

underwear but not on her body, explaining, “Her body was really red and irritated looking.

But I didn’t see [blood] on her.” She denied that the victim had ever had trouble with her

bottom becoming irritated by bubble bath.

SCSO Deputy Ronald Sneed, who responded to the Millington Inn in response

to J.M.’s 9-1-1 call, testified that J.M. told him that the victim reported that while the victim

and the defendant were at the defendant’s mother’s house, the defendant “removed her

clothing from her and assaulted her by placing his private part inside of her private part.”

Deputy Sneed said that J.M. reported that the victim “informed [J.M.] that she felt like [the

defendant] had urinated inside of her and that a white substance had come from his private

area.” J.M. also told Deputy Sneed that the victim said that the defendant threatened “to

continue the assault the rest of her life and also harm her in other ways.” Deputy Sneed said

that he only spoke briefly with the victim because “protocol” dictated that he allow her

formal statement to be taken by a female detective.

M.M., who was 10 years old at the time of trial, testified that in June 2009, she

was seven years old and living in the Millington Inn with her mother, her three brothers, and

the defendant. She said that she sometimes went with the defendant to his mother’s house

to play with the defendant’s daughters, jump on the trampoline, and play “a cooking game”

on the defendant’s mother’s computer. She recalled that one morning in June 2009, she went

with the defendant to pick up his mother and take her to work. She and the defendant then

went back to the defendant’s mother’s house, where she played on the computer for a short

time before the defendant told her to “[c]ome away from” the computer. She testified that

the defendant showed her “[n]asty pictures of naked girls” on the computer before he told

her to go into his daughters’ room because it was “time to go to sleep.” The victim stated

that she complied with the defendant’s directive, and the defendant followed her into the

room.

While they were in the bedroom, the defendant removed the victim’s pants and

“pulled [her] panties halfway down.” M.M. testified that the defendant then “put his private

part into [her] private part.” She said that “[i]t hurt” and that she asked him to stop, but he

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did not stop until after he had “peed on [her] leg.” The victim also recalled that the

defendant forced her to “rub[] some grease” from a container with “a blue top” onto his penis

“[a]fter he put his private part into [her] private part.” She said that the “grease” was the

same as that J.M. applied to her lips. She testified that the defendant then put his penis into

her mouth. M.M. said that she cried during the incident. After the offenses, the defendant

“wiped it up with a black shirt” and put the shirt on the dresser. The victim testified that the

defendant gave her clothes, including panties, to put on after the offenses and that the

clothing did not belong to her. She recalled that she wore these same clothes for the

remainder of that day until she went to the hospital for an examination.

During cross-examination, the victim acknowledged that her mother said that

the victim would get in “[b]ad trouble” if her trial testimony did not match her statement to

the police in June 2009. The victim denied ever having seen anyone engaging in sexual

intercourse and denied ever having had a dream about someone having sex with her. She

also denied that one of her brothers placed his penis inside her vagina. She admitted that one

of her brothers had forced her to perform fellatio on him when she was four years old.

During redirect examination, the victim clarified that her mother told her to tell

the truth at trial, and she had done so. The victim said that she did not dream the offenses

committed by the defendant. The victim said that she reported the incident involving her

brother to her mother and that her brother had admitted the act.

SCSO Sergeant Karla Lipford, who responded to Deputy Sneed’s call for

assistance, testified that she spoke with Officer Sneed and J.M. and that she attempted to

interview the victim and the defendant. Sergeant Lipford said that she did not obtain a

statement from the defendant because he asked for an attorney. The victim, she said, refused

to give a statement because it was late and she was tired. Sergeant Lipford testified that she

drove J.M. and the victim to Le Bonheur so that the victim could undergo a forensic

examination. Sergeant Lipford testified that she collected the rape kit from Le Bonheur and

transported it to the sheriff’s office property room, where it remained until it was transported

to the Tennessee Bureau of Investigation (“TBI”) for testing.

Sergeant Lipford said that she did not arrest the defendant that night because

she did not have confirmation of the victim’s allegations. She later telephoned the defendant

and asked if he would come to the sheriff’s office for an interview, and he agreed. The

interview took place on November 11, 2009. She provided the defendant with Miranda

warnings, and he provided a statement. A video recording of the defendant’s statement was

played for the jury.

In his statement, the defendant testified that on June 12, 2009, he and M.M.

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drove in his mother’s van to pick his mother up and drive her to work. The defendant said

that after taking his mother to work, he and M.M. returned to his mother’s house so that he

could do several loads of laundry. The defendant told Sergeant Lipford that he and M.M. left

his mother’s house at approximately 9:30 a.m. and returned to the Millington Inn so that the

defendant could drive J.M. to the walk-in clinic. He said that after dropping J.M. off at the

clinic, he and M.M. returned to his mother’s house to finish the laundry. The defendant

denied showing M.M. pornographic images on the computer. He also denied having any

sexual contact with M.M., saying, “[I]t sound like it was staged to me you know maybe she

her momma don’t wanna pay me my money that she owe me you know that’s how I took it.”

Ashley Weiderhold Piper, a nurse practitioner who worked in the Child

Assessment Program at Le Bonheur, testified that she performed the forensic examination

of the victim. Ms. Piper said that the victim “reported that her mother’s boyfriend made her

watch movies with him and touched her and peed in her.” Ms. Piper said that before

conducting the genital examination, she collected the victim’s underwear and “placed it in

the evidence bag for underwear which is in the sealed evidence box from the Tennessee

Bureau of Investigation.” She explained that the “rape kit” box “contains packaging for

underwear as well as separate packaging for vaginal swabs, anal swabs, oral swabs, any

additional swabs as well as pubic hair combings.” Ms. Piper testified that during a visual

examination of the victim’s genitals, she “noted that [the victim] had some generalized

redness or erythema as well as a notch or a hump of tissue at around seven o’clock. . . .

There were no lacerations, no bleeding, no discharge.” Ms. Piper said that it was her

professional opinion that the redness on the victim’s genitals, her painful urination, and the

notch in her hymen supported the victim’s claim of sexual abuse.

During cross-examination, Ms. Piper stated that she did not swab or otherwise

inspect the victim’s underwear but simply collected the underwear and placed it into the bag

contained in the rape kit. Ms. Piper said that she did not observe any blood on the victim’s

underwear. Ms. Piper conceded that the presence of the notch in the victim’s hymen did not

necessarily indicate sexual penetration.

TBI Special Agent and Forensic Scientist Jessica Marquez testified that she

performed deoxyribonucleic acid (“DNA”) testing using the items contained in the rape kit

obtained from the victim and the buccal swab obtained from the defendant. Agent Marquez

stated that each of the items she received from the SCSO was in a sealed evidence container.

She created a DNA profile for the defendant using the known standard sent to her by the

SCSO and a DNA profile for the victim using the known standard from the rape kit. Agent

Marquez testified that DNA testing on an oral swab taken from the victim established that

it was negative for the presence of semen. A vaginal swab taken from the victim tested

positive for the presence of semen and sperm but negative for the presence of saliva. DNA

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testing of the vaginal swab revealed “[a] mixed DNA profile” that was consistent with the

victim and the defendant. Agent Marquez testified that the “crotch area” of the victim’s

underwear tested positive for the presence of semen and sperm. DNA testing on the victim’s

underwear conclusively established that the semen and sperm inside the underwear came

from the defendant.

During cross-examination, Agent Marquez testified that she had no test to

determine when the defendant’s DNA was deposited onto the victim’s underwear. She

admitted that she could not say with certainty that the defendant’s DNA came to be on the

victim’s underwear via sexual activity. Agent Marquez conceded that it was possible that

the defendant’s DNA could have been transferred to the victim’s vagina via her underwear

and that the defendant’s semen and sperm could have been deposited on the victim’s

underwear if the defendant had used the underwear to clean himself after having sex with

J.M.

Agent Marquez conceded that DNA from a third individual also appeared to

be on the victim’s underwear, but the amount of that DNA did not meet TBI testing

thresholds. The DNA contributed by the third individual was on the non-sperm portion of

the underwear and was in an amount that indicated that it “could be a touch DNA sample.”

During redirect examination, Agent Marquez reiterated that the unknown DNA

contribution was only in the non-sperm portion of the sample and that it was “consistent with

a touch DNA sample.” Agent Marquez said that it was “not likely” that the defendant’s

DNA discovered inside the victim’s vagina came from a transfer rather than from sexual

activity.

Following Agent Marquez’s testimony, the victim returned to the stand for the

limited purpose of authenticating the video recording of the forensic interview she gave on

July 1, 2009. That video, portions of which were redacted by the agreement of the parties,

was not admitted as substantive evidence but as a prior consistent statement to rehabilitate

the victim’s credibility, which had been challenged by the defendant. After the presentation

of the redacted video recording, the State rested.

The defendant, after a full Momon colloquy, elected not to testify but did

choose to present proof.

Doctor William Watson, who described himself as an “independent forensic

consultant,” testified that he had obtained a bachelor’s degree in microbiology from Texas

State University, a master’s degree in biology from University of North Texas, and a Ph.D.

in molecular biology from the University of North Texas. Doctor Watson explained that he

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examined the records of DNA testing on the various items that was performed by Agent

Marquez. He stated that he did not disagree with any of Agent Marquez’s findings but that

he was concerned because the report generated by Agent Marquez did not indicate the

presence of the third, unknown DNA contributor. He said, “[T]here is an omission in the

report. It doesn’t include any information about the third unknown contributor to this

sample.” Doctor Watson stated that, as a result, it was his opinion that Agent Marquez’s

report did not meet accepted laboratory standards.

Doctor Watson agreed that the semen and sperm on the victim’s underwear

belonged to the defendant. He said, however, that the defendant’s DNA could have been

transferred to the victim’s underwear in a variety of ways that did not involve sexual contact.

He noted, for example, that the DNA could have been transferred to the victim’s underwear

if she came into contact with the defendant’s ejaculate on the defendant’s bedding. Doctor

Watson admitted that he could not definitively say how the defendant’s DNA came to be in

the victim’s underwear. Doctor Watson observed that it was also possible that the DNA

found on the victim’s genitals was transferred there from her underwear.

During cross-examination, Doctor Watson reiterated that he did not dispute any

of the conclusions made by Agent Marquez. Doctor Watson conceded that it was possible

that the defendant’s DNA was deposited inside the victim’s vagina via penile penetration.

Bernice Pigram, the defendant’s mother, testified that when she washed the

bedding from her granddaughters’ bed on the Saturday following June 12, 2009, she did not

observe any blood or semen on the sheets. Ms. Pigram also testified that the underwear

collected from the victim following the offense was not underwear that she had purchased

for either of her granddaughters. Ms. Pigram said that at that time, the victim was “bigger

than [her] girls” and that, as a result, the victim could not have shared clothing with her

granddaughters.

The defendant’s 12-year-old daughter, Abria Watson, testified that in June

2009, the victim was too large to share clothing with Abria or her sister.

Based upon this testimony, the jury convicted the defendant as charged of one

count of rape of a child. Following a sentencing hearing, the trial court imposed a 25-year

sentence to be served at 100 percent by operation of law.

The defendant filed a timely but unsuccessful motion for new trial followed by

a timely notice of appeal. In this appeal, the defendant contends that the trial court erred by

denying his motion to enforce the plea agreement; that the trial court erred by denying his ex

parte motion for funds to hire a “gynecological expert;” that the trial court erred by denying

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his motion to suppress the victim’s underwear based upon the State’s failure to establish a

sufficient chain of custody; that the trial court erred by refusing to suppress “inconclusive”

results of tests conducted on the victim’s vaginal swab; that the trial court erred by

prohibiting him from cross-examining the victim’s mother about the victim’s previous claim

of sexual abuse; and that the trial court erred by denying a specially requested jury instruction

on the State’s duty to collect and preserve evidence. We consider each claim in turn.

I. Plea Agreement

The defendant asserts that the trial court erred by refusing to force the State to

honor a plea offer made to the defendant shortly after his indictment. He claims that his

reliance on the agreement prejudiced the development of his defense. The State contends

that the trial court did not err because there was no agreement between the parties.

It is well-settled that “[a]n offer to plea bargain is ‘revocable until accepted by

the trial court.’” State v. Street, 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988) (quoting

State v. Turner, 713 S.W.2d 327, 329 (Tenn. Crim. App. 1986)). In consequence, a plea

agreement remains unenforceable as to either party prior to acceptance by the trial court.

The record establishes that not only had the trial court not accepted the plea

agreement, no plea agreement ever existed between the parties. The State made an offer to

the defendant, which counsel apparently communicated to the defendant at some point

between June 2010 and November 2010. The defendant did not immediately accept the

offer. In the interim, a new prosecutor took over the case against the defendant and withdrew

the plea offer. When defense counsel communicated the withdrawal of the offer to the

defendant, the defendant told counsel that he had “been planning on taking the offer but he

wanted to take the offer under Alford v. North Carolina.” Counsel said that the defendant

“signed the paperwork” to enter a guilty plea after the prosecutor withdrew the offer. The

trial court concluded that because the offer “had not been accepted at the time it was revoked,

there is no contract and never was any contract.” The court found that because no plea

agreement had been made, the State had not breached the agreement. The trial court also

correctly ruled that it lacked the authority to force the State to reinstate the earlier offer.

Because no plea agreement existed, the trial court did not err by denying the defendant’s

motion.

II. Expert Witness Funds

The defendant next contends that the trial court erred by denying his request

for funds to hire a “gynecological expert” to assist in his defense. The State asserts that the

defendant waived our consideration of this issue by failing to include the motion or the order

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disposing of the motion in the appellate record.

Tennessee Supreme Court Rule 13, section 5, governs the provision of funds

to procure the assistance of expert assistance for an indigent defendant: “[T]he court, in an

ex parte hearing, may in its discretion determine that investigative or expert services or other

similar services are necessary to ensure that the constitutional rights of the defendant are

properly protected.” Tenn. Sup. Ct. R. 13, § 5(b); see also T.C.A. § 40-14-207(b) (2005)

(authorizing funding for expert services to an indigent defendant pursuant to the supreme

court rules). “Funding shall be authorized only if, after conducting a hearing on the motion,

the court determines that there is a particularized need for the requested services . . . .” Tenn.

Sup. Ct. R. 13, § 5(c)(1). To establish a “particularized need,” the defendant must show “by

reference to the particular facts and circumstances that the requested services relate to a

matter that, considering the inculpatory evidence, is likely to be a significant issue in the

defense at trial and that the requested services are necessary to protect the defendant’s right

to a fair trial.” Id. § 5(c)(2); see also State v. Barnett, 909 S.W.2d 423, 430 (Tenn. 1995).

Our supreme court has adopted a two-pronged test to determine “particularized

need”: “(1) the defendant must show that he or she ‘will be deprived of a fair trial without

the expert assistance’; and (2) the defendant must show that ‘there is a reasonable likelihood

that [the assistance] will materially assist [him or her] in the preparation of [the] case.’” State

v. Scott, 33 S.W.3d 746, 753 (Tenn. 2000) (quoting Barnett, 909 S.W.2d at 430) (alterations

is Scott). Most importantly, the need for expert services must “be determined on a

case-by-case basis, and in determining whether a particularized need has been established,

a trial court should consider all facts and circumstances known to it at the time the motion

for expert assistance is made.” Barnett, 909 S.W.2d at 431. The trial court’s denial of expert

services will not be overturned absent a showing that the trial court abused its discretion. See

Barnett, 909 S.W.2d at 431.

The defendant contends that he filed an ex parte motion for funds to hire a

“gynecological expert,” which expert, he claimed, would “assist him in refuting any assertion

by the state that the physical evidence and observations of the nurse proved penetration” and

“explore the defendant’s theory that the evidence actually disproved penetration.” As the

State correctly points out, however, neither the defendant’s motion nor the trial court’s order

disposing of the motion appears in the record on appeal.

The appellant bears the burden of preparing an adequate record on appeal, see

State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have

prepared a transcript of such part of the evidence or proceedings as is necessary to convey

a fair, accurate and complete account of what transpired with respect to those issues that are

the bases of appeal.” Tenn. R. App. P. 24(b). If the appellant fails to file an adequate record,

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this court must presume the trial court’s ruling was correct. See State v. Richardson, 875

S.W.2d 671, 674 (Tenn. Crim. App. 1993). Because the defendant failed to include the

motion or the order in the record on appeal, we must presume that the ruling of the trial court

relative to his request was correct.

III. Chain of Custody

The defendant asserts that the trial court erred by refusing to exclude from

evidence the underwear collected from the victim during her forensic examination. Prior to

trial, the defendant moved the court to exclude the underwear on grounds that the State had

failed to reference the panties in its initial discovery materials. He appears to claim on appeal

that this failure resulted in a failure of the State to establish an appropriate chain of custody

for the underwear prior to its admission at trial. The State avers that the trial court did not

err by refusing to exclude the evidence.

“Whether the requisite chain of custody has been established to justify

admission . . . is ‘a matter committed to the discretion of the trial judge and [t]his

determination will not be overturned in the absence of a clearly mistaken exercise thereof.’”

Davis v. Shelby County Sheriff's Dep’t, 278 S.W.3d 256, 267 (Tenn. 2009) (quoting Shell v.

Law, 935 S.W.2d 402, 409 (Tenn. Ct. App. 1996)). Accordingly, this court will not reverse

the trial court’s ruling on the chain of custody “unless the trial court ‘applied an incorrect

legal standard, or reached a decision which is against logic or reasoning that caused an

injustice to the party complaining.’” State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008)

(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

Although “it is ‘well-established that as a condition precedent to the

introduction of tangible evidence, a witness must be able to identify the evidence or establish

an unbroken chain of custody,’” Cannon, 254 S.W.3d at 296 (quoting State v. Scott, 33

S.W.3d 746, 760 (Tenn. 2000)), the general rule “does not require that the identity of tangible

evidence be proven beyond all possibility of doubt,” Cannon, 254 S.W.3d at 296. The State

need not “call all of the witnesses who handled the item.” Id. (citing State v. Johnson, 673

S.W.2d 877, 881 (Tenn. Crim. App. 1984)). So long as the State can “reasonably establish

the identity and integrity of the evidence, the trial court should admit the item into evidence.”

Id.

Here, J.M. testified that she did not change the victim’s clothing after the

victim made her claim of abuse. Instead, the victim remained in the same underwear and

clothing until she removed it later that evening before her forensic examination. Ms. Piper

testified that she collected the victim’s underwear and placed it inside a bag inside the rape

kit. Sergeant Lipford collected the rape kit and placed it in the property room at the SCSO.

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Agent Marquez testified that the underwear arrived at the TBI for testing in the same sealed

bag in which they had been placed by Ms. Piper. No evidence suggested that either the bag

or the underwear had been tampered with in any way. Similarly, no evidence suggested that

the underwear tested by Agent Marquez was not the same underwear that the victim put on

following the sexual assault. That the initial batch of discovery materials from the State

failed to reference the underwear is wholly irrelevant to the question of whether the State

established a sufficient chain of custody. Thus, because the evidence presented sufficiently

established the chain of custody of the underwear, the trial court did not err by admitting the

evidence or the testimony regarding the tests performed on it.

IV. Motion in Limine

The defendant next contends that the trial court erred by denying his motion

to exclude evidence of DNA testing conducted on the vaginal swab taken from the victim.

The defendant claims that because the testing was “inconclusive” the results should have

been excluded under the terms of Tennessee Rule of Evidence 403. The State avers that the

trial court ruled correctly.

Prior to trial, the defendant moved to exclude the results of DNA testing

performed on the vaginal swab taken from the victim, claiming that because the results were

“inconclusive,” the probative value of the results was substantially outweighed by the danger

of unfair prejudice that might arise from their admission. The trial court denied the motion,

concluding that no danger of unfair prejudice arose from the actual scientific test results.

The court noted that the defendant would be permitted to cross-examine the TBI forensic

scientist regarding her methods and the results achieved from DNA testing.

Questions concerning the admissibility of evidence under Tennessee Rule of

Evidence 403 rest within the sound discretion of the trial court, and this court will not

interfere with the exercise of this discretion in the absence of a clear abuse appearing on the

face of the record. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Van

Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992).

An abuse of discretion occurs when the trial court applies an incorrect legal standard or

reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party

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

S.W.3d 319, 337 (Tenn. 2006)); see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

Relevant evidence is evidence “having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which is

not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed relevant,

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it may be still be excluded “if the probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.

403. The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest

decision on an improper basis, commonly, though not necessarily, an emotional one.” State

v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978).

We need not tarry long over the defendant’s claim because the record belies

his assertion that results of DNA testing performed on the vaginal swab were truly

“inconclusive.” The report generated by Agent Marquez stated that the mixed DNA profile

on the vaginal swab was “consistent with” the victim and the defendant “at 6 of 9 loci and

the gender marker amelogenin. Loci FGA, D5S818, and D7S820 are inconclusive due to

insufficient or degraded DNA.” This statement does not reflect that the results were entirely

inconclusive. Indeed, Agent Marquez went on to report that the “probability of obtaining this

mixed profile from unrelated individuals” from the “African-American population is

approximately 1 in 4,900;” from the “Caucasian population is approximately 1 in 5,429;”

from the “Southeastern Hispanic population is approximately 1 in 7,962;” and the

“Southwestern Hispanic population is approximately 1 in 5,336.” The defendant thoroughly

cross-examined Agent Marquez regarding the results. The trial court did not err by refusing

to exclude this evidence.

V. Tennessee Rule of Evidence 412

The defendant complains that the trial court erred by prohibiting him from

asking J.M. about the victim’s previous report that one of her brothers had sexually assaulted

her. The State contends that the trial court did not err because J.M.’s testimony on this

subject would have been inadmissible hearsay. We agree with the State.

Prior to trial, the defendant moved for permission to present at trial records

from the Department of Children’s Services detailing the victim’s earlier claim of sexual

abuse by one of her brothers, claiming that the records were admissible under Tennessee

Rule of Evidence 412 to establish that the young victim’s knowledge of sexual matters came

from an incident other than the one involving the defendant. The trial court denied the

motion, deeming the records inadmissible hearsay, but ruled that the defendant would be

permitted to ask the victim about the earlier instance of sexual abuse under the terms of Rule

412.

During cross-examination of J.M. at trial, the defendant sought to ask J.M.

whether the victim ever reported that someone other than the defendant had penetrated her.

The defendant claimed that the victim’s statement regarding the previous incident made it

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unclear whether her brother had penetrated her vagina with his penis and that he wanted to

ask both the victim and J.M. to clear up the “inconclusive” prior statement. The defendant

said that the purpose of that line of questioning was to establish that the notch in the victim’s

hymen could have come from the earlier incident. He also claimed that evidence of the

earlier incident was necessary because “this other trauma could of caused her to have

psychological problems to make her think that [the defendant had raped her] or not being

able to differentiate between dreaming about the other act or this act.” The trial court ruled

that the defendant could ask the victim “if she had been sexually abused, or whatever the

word is, by [her brother] to show the knowledge of sexual matters” and that the defendant

could ask the victim “if she’s been sexually penetrated before because of the notch in the

hymen.” The court held that the defendant would not be permitted to ask those questions of

J.M., however, because J.M. had no personal knowledge of the incident because she “wasn’t

there” when the abuse occurred.

Tennessee Rule of Evidence 412, Tennessee’s rape shield law, “reflect[s] the

general view that evidence of prior sexual behavior is irrelevant or, if relevant, has little

probative value compared to its prejudicial effect, unless the evidence is within one of the

enumerated exceptions.” State v. Brown, 29 S.W.3d 427, 430 (Tenn. 2000). “Rule 412 is

a rule of relevance” designed “to exclude all evidence regarding the complainant’s prior

sexual behavior unless the procedural protocol is followed and the evidence conforms to the

specifications of the Rule.” Id. at 430. Rule 412 provides, in pertinent part, as follows:

Notwithstanding any other provision of law, in a criminal trial,

preliminary hearing, deposition, or other proceeding in which a

person is accused of an offense under Tenn. Code Ann. § . . .

39-13-522 [rape of a child] . . . the following rules apply:

....

(c) Specific instances of conduct.

Evidence of specific instances of a victim’s sexual behavior is

inadmissible unless admitted in accordance with the procedures

in subdivision (d) of this rule, and the evidence is:

(1) Required by the Tennessee or United States

Constitution, or

(2) Offered by the defendant on the issue of credibility of

the victim, provided the prosecutor or victim has presented

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evidence as to the victim’s sexual behavior, and only to the

extent needed to rebut the specific evidence presented by the

prosecutor or victim, or

(3) If the sexual behavior was with the accused, on the

issue of consent, or

(4) If the sexual behavior was with persons other than the

accused,

(i) to rebut or explain scientific or medical evidence, or

(ii) to prove or explain the source of semen, injury,

disease, or knowledge of sexual matters, or

(iii) to prove consent if the evidence is of a pattern of

sexual behavior so distinctive and so closely resembling the

accused's version of the alleged encounter with the victim that

it tends to prove that the victim consented to the act charged or

behaved in such a manner as to lead the defendant reasonably to

believe that the victim consented.

Tenn. R. Evid. 412(c).

Here, the defendant sought to ask the victim’s mother about sexual abuse

perpetrated against the victim by one of the victim’s brothers when the victim was four years

old. The defendant asserted that the purpose of seeking admission of evidence of the prior

act was to explain the victim’s knowledge of sexual matters and to potentially explain the

source of the notch in the victim’s hymen. Although these are permissible purposes under

Rule 412, the trial court correctly determined that J.M. was not the appropriate witness

through which to seek admission of that evidence. J.M. had no first hand knowledge of the

earlier sexual abuse and knew only what the victim had told her. Thus, any testimony she

offered on the matter would have been inadmissible hearsay. See Tenn. R. Evid. 801. The

court also correctly ruled that the defendant would be permitted to ask the victim about the

earlier abuse under the terms of Rule 412.

The defendant also argues that the trial court’s ruling that he would not be

permitted to question J.M. about the victim’s earlier abuse deprived him of the right to

present a defense. Although “[p]rinciples of due process require that a defendant in a

criminal trial have the right to present a defense and to offer testimony” favorable to his

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cause, State v. Flood, 219 S.W.3d 307, 316 (Tenn. 2007) (citing Chambers v. Mississippi,

410 U.S. 284, 294 (1973); Brown, 29 S.W.3d at 431), that right is not without limits, see

Flood, 219 S.W.3d at 316 (citing Chambers, 410 U.S. at 302). Indeed, the Supreme Court

has observed that “[i]n the exercise of this right, the accused, as is required of the State, must

comply with established rules of procedure and evidence.” Chambers, 410 U.S. at 302. “So

long as the rules of procedure and evidence are not applied arbitrarily or disproportionately

to defeat the purposes they are designed to serve, these rules do not violate a defendant’s

right to present a defense.” Flood, 219 S.W.3d at 316 (citing United States v. Scheffer, 523

U.S. 303, 308 (1998); Holmes v. South Carolina, 547 U.S. 319 (2006); Chambers, 410 U.S.

at 302). As indicated, the trial court did not prevent the defendant from presenting the

evidence he desired but simply limited the presentation of that evidence in accord with the

rules of evidence. The defendant is not entitled to relief on this issue.

VI. Jury Instruction

The defendant contends that the trial court erred by denying his request for a

jury instruction regarding the State’s duty to collect and preserve evidence. He claims that

proof that the State could have collected evidence such as the black t-shirt allegedly used to

clean up after the rape of the victim or swabs from the defendant’s penis warranted the giving

of such an instruction. The State avers that the evidence did not justify the giving of the

defendant’s requested instruction.

As the trial court correctly noted, the pattern jury instruction regarding the

State’s duty to preserve evidence had its genesis in State v. Ferguson. In that case, our

supreme court “explained that the loss or destruction of potentially exculpatory evidence may

violate a defendant’s right to a fair trial.” State v. Merriman, 410 S.W.3d 779, 784 (Tenn.

2013) (citing State v. Ferguson, 2 S.W.3d 912, 915-16 (1999)). The court observed that “the

due process required under the Tennessee Constitution was broader than the due process

required under the United States Constitution,” Merriman, 410 S.W.3d at 784 (quoting

Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding “that unless a criminal defendant

can show bad faith on the part of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law”)), and rejected the “bad faith” analysis

espoused by the United States Supreme Court in favor of “a balancing approach in which bad

faith is but one of the factors to be considered in determining whether the lost or destroyed

evidence will deprive a defendant of a fundamentally fair trial,” Merriman, 410 S.W.3d at

785. The supreme court “observed that fundamental fairness, as an element of due process,

requires a review of the entire record to evaluate the effect of the State’s failure to preserve

evidence.” Id. at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).

To facilitate this “balancing approach,” our supreme court ruled that the trial

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court must first “determine whether the State had a duty to preserve the evidence,”

Merriman, 410 S.W.3d at 785, and observed that the State’s duty to preserve was “limited

to constitutionally material evidence,” id. The court held that to be “constitutionally

material,” the evidence “must potentially possess exculpatory value and be of such a nature

that the defendant would be unable to obtain comparable evidence by other reasonably

available means.” Id. (citing Ferguson, 2 S.W.3d at 915, 918). “If the trial court determines

that the State had a duty to preserve the evidence, the court must determine if the State failed

in its duty.” Merriman, 410 S.W.3d at 785 (citing Ferguson, 2 S.W.3d at 917). If the trial

court concludes that the State lost or destroyed evidence that it had a duty to preserve, the

trial court must then consider three factors to determine the appropriate remedy for the

State’s failure:

“(1) [t]he degree of negligence involved;

(2) [t]he significance of the destroyed evidence, considered in

light of the probative value and reliability of secondary or

substitute evidence that remains available; and

(3) [t]he sufficiency of the other evidence used at trial to support

the conviction.”

Merriman, 410 S.W.3d at 785 (quoting Ferguson, 2 S.W.3d at 917). “If the trial court

concludes that a trial would be fundamentally unfair without the missing evidence, the trial

court may then impose an appropriate remedy to protect the defendant’s right to a fair trial,

including, but not limited to, dismissing the charges or providing a jury instruction.”

Merriman, 410 S.W.3d at 785-86.

Importantly, the defendant makes no allegation that the State lost or destroyed

any piece of evidence. Instead, he claims that the State should have collected more evidence

because that evidence might have been exculpatory. That is not the standard required for the

giving of an instruction under Ferguson. Consequently, the trial court did not err by denying

the defendant’s requested instruction.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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