STATE OF TENNESSEE v. ARTHUR RAY TURNER

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 12, 2014

STATE OF TENNESSEE v. ARTHUR RAY TURNER

Direct Appeal from the Criminal Court for Davidson County

No. 95-C-1691 Steve Dozier, Judge

No. M2013-00277-CCA-R3-CD - Filed May 28, 2014

In this procedurally complex case, a Davidson County jury convicted the Defendant, Arthur

Ray Turner, of especially aggravated kidnapping, aggravated robbery, four counts of

aggravated rape, and attempted aggravated rape. The trial court sentenced the Defendant to

a total effective sentence of seventy years in confinement. On appeal, the Defendant

contends that: (1) the trial court erred when it denied his motion to suppress his statements

to police; (2) the trial court erred when it denied his motion to dismiss based upon the State’s

destruction of evidence; (3) the trial court erred when it ruled on the admissibility of DNA

evidence; (4) the evidence is insufficient to sustain his conviction for two counts of

aggravated rape because the State did not prove that he was armed with a weapon or anything

the victim reasonably believed was a weapon; (5) the trial court erred when it allowed

separate convictions for aggravated rape in Counts 3 and 4 and attempted aggravated rape

in Count 5 because separate convictions violate his protections against double jeopardy; (6)

the trial court erred when it ordered his sentences to run consecutively and when it ordered

him to serve his sentence for especially aggravated kidnapping at 100 percent. After a

thorough review of the record and applicable authorities, we affirm the trial court’s

judgments in all respects save one. The trial court’s judgment in Count 1, especially

aggravated kidnapping, should be modified to reflect a release eligibility date of 30 percent.

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

and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and

J EFFREY S. B IVINS, JJ., joined.

Jeffrey A. DeVasher, Assistant Public Defender (on appeal), Jon Wing and Kevin Griffith,

Assistant Public Defenders (at trial), Nashville, Tennessee, for the Appellant, Arthur Ray

Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; Pamela Anderson,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

A. Procedural History

This case arises from the kidnapping and rape of the victim. The Defendant was

originally indicted in this case by the Davidson County grand jury in July 1995. This Court

previously stated about this case:

It appears from the record before us that in 1995 the [Defendant],

pursuant to a plea agreement, entered guilty pleas to especially aggravated

kidnapping, aggravated robbery and two counts of aggravated rape. He was

sentenced to twenty years for each of his aggravated rape convictions and ten

years for his especially aggravated kidnapping and aggravated robbery

convictions. Thereafter, the trial court ordered the [Defendant]’s sentences to

run concurrent, except for the rape sentences which were to run consecutive

for an effective sentence of forty years. In April 1996, the [Defendant] filed

a petition for post-conviction relief, alleging ineffective assistance of counsel

and improper imposition of consecutive sentences. The petition was dismissed

and this court affirmed the dismissal on appeal. See Arthur R. Turner v. State,

No. 01C01-9707-CR-00274, 1998 WL 652154 (Tenn. Crim. App., at

Nashville, Sept. 23, 1998) perm. app. denied (Tenn. March 22, 1999).

Subsequently, the [Defendant] unsuccessfully filed a series of petitions seeking

post-conviction relief. See, e.g., Author R. Turner v. State, No.

M2002-00541-CCA-R3-PC, 2003 WL 1877035 (Tenn. Crim. App., at

Nashville, April 15, 2003) perm. app. denied (Tenn. Sept. 2, 2003) (petition

for relief barred by statute of limitations). The [Defendant] also

unsuccessfully sought post-conviction relief in the federal district court via

petition for writ of habeas corpus. See, e.g., Author Ray Turner v. Stephen

Dotson, Warden, No. 06-5121, 2007 Fed. App. 0179N (6th Cir. Tenn. Mar. 6,

2007) (petition for relief barred by statute of limitations).

Author Ray Turner v. Stephen Dotson, No. W2008-00011-CCA-R3-HC, 2008 WL 4253644,

at *1 (Tenn. Crim. App., at Jackson, Sept. 16, 2008), no Tenn. R. App. P. 11 application

2

filed.1

On December 6, 2007, the Defendant filed a petition for writ of habeas corpus,

alleging that he received an illegal sentence because he was sentenced beyond the

presumptive minimum sentence on each of his convictions to which he pled guilty in

violation of his Sixth Amendment right to a jury trial as set forth in Blakely v. Washington,

542 U.S. 296 (2004) and its progeny. The habeas court summarily dismissed the Defendant’s

petition, and this Court affirmed the habeas court’s judgment. Turner v. Dotson, 2008 WL

4253644, at *3.

On December 9, 2008, the Defendant filed a petition for habeas corpus relief again

challenging the legality of his sentence. Arthur Ray Turner v. David Mills, No. E2009-

00194-CCA-R3-HC, 2010 WL 1949143, at *1 (Tenn. Crim. App., at Knoxville, May 13,

2010), no Tenn. R. App. P. 11 application filed. The Defendant argued that his sentences and

corresponding judgments, which reflected a thirty percent release eligibility for each

conviction, directly contradict the statutory mandate of Tennessee Code Annotated section

39-13-523 that any offender convicted of two counts of aggravated rape “shall be required

to serve the entire sentence imposed by the court.” T.C.A. § 39-13-523(a)(2), (b)

(Supp.1994). The habeas corpus court dismissed the petition, and we reversed its judgment.

Turner v. Mills, 2010 WL 1949143, at *4. We concluded that the Defendant’s sentences for

aggravated rape were illegal on the face of the judgments because they contravened a statute.

Id. Accordingly, we reversed the judgment of the habeas corpus court summarily dismissing

the petition for writ of habeas corpus and remanded the case to that court for the appointment

of counsel and an evidentiary hearing to determine whether the Defendant was entitled to

withdraw his guilty plea. Id. In so doing, the Court stated:

At [the evidentiary] hearing, the issue would be whether the illegal

sentence was a material element of a plea agreement with the State, and the

proof would be limited to the face of the record of the underlying proceedings.

If the record establishes that the illegal sentence was not a bargained-for

element of the plea agreement, then, as in Smith, the sentence is void, but the

conviction remains intact, and the only remedy is correction of the sentence.

If the record establishes that the illegal sentence was a material part of a

package deal, then the petitioner is entitled to withdraw his plea if he cannot

reach an agreement with the State. See McConnell v. State, 12 S.W.3d 795,

800 (Tenn. 2000) (holding that withdrawal of the guilty plea is unnecessary

when the parties agree to replace an illegal sentence with a legal one).

1

It appears that there is a discrepancy in the Defendant’s name; however, the record herein

indicates that his name is Arthur Ray Turner.

3

Id. at *3-4 (quoting Summers v. Fortner, 267 S.W.3d 1, 6-7 (Tenn. Crim. App. 2008)).

On remand and following the evidentiary hearing, the habeas corpus court entered a

December 10, 2010, order granting the Defendant habeas corpus relief:

After reviewing (1) the petition and its attachments, (2) the

respondent’s motion to dismiss, (3) the opinion of the Court of Criminal

Appeals remanding the case to this Court for the appointment of counsel, (4)

the [Defendant]’s amended petition, and (5) the record in this case, and after

conducting a hearing on October 25, 2010, in Kingston by agreement of the

parties, the Court is of the opinion that the petition for writ of habeas corpus

is well-taken and should be granted. The Court of Criminal Appeals

previously concluded that the [Defendant]’s two judgments of conviction for

aggravated rape are void because the petitioner was not ordered to serve his

sentences at 100 percent as a multiple rapist, as required by [Tennessee Code

Annotated section] 39-13-523. That court remanded the case for this Court to

determine “whether the original 30 percent release eligibility was a material

bargained-for element of the [Defendant]’s plea agreement.” This Court now

finds that the [Defendant]’s original 30 percent release eligibility was a

material bargained-for element of the [Defendant]’s plea agreement.

Accordingly, it is ordered, adjudicated, and decreed that the petition for

writ of habeas corpus is GRANTED, and the case is TRANSFERRED to the

Davidson County Criminal Court for further proceedings. Since “the record

establishes that the illegal sentence was a material part of a package deal, then

the petitioner is entitled to withdraw his plea if he cannot reach an agreement

with the State.” Summers v. Fortner, 267 S.W.3d 1, 7 (Tenn. Crim. App.

2008) (citing McConnell v. State, 12 S.W.3d 795, 800 (Tenn. 2000)).

The State appealed. This Court affirmed the habeas corpus court’s judgment allowing the

Defendant to withdraw his guilty plea. Arthur Ray Turner v. David Mills, E2011-

000740CCA-R3-HC, 2012 WL 1431220, at *1 (Tenn. Crim. App., at Knoxville, Apr. 25,

2012), no Tenn. R. App. P. 11 application filed. The case then proceeded to trial.

B. Facts

1. Motion to Suppress

On March 16, 2012, the Defendant filed a motion to suppress his statements to police.

At a hearing on the motion, the parties presented the following evidence: Charles Thomas,

a detective with the Rutherford County Sheriff’s Office, testified that he was dispatched to

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7822 Clearwater Court on March 16, 1995, and there he encountered the Defendant.

Detective Thomas said that, when he arrived at the house he knocked on the door, and a

woman named Tanya Johnson answered the door. The Defendant was asleep in the bedroom.

The detective asked the Defendant to step outside, where he read the Defendant his Miranda

warnings. After so doing, the detective offered the Defendant an opportunity to tell him his

side of the story. Detective Thomas documented the Defendant’s statement.

The Defendant told Detective Thomas that he needed a ride to Rutherford County, so

he kidnapped a lady, put her in the trunk, and brought her to Rutherford County. Another

detective, Commander Acton, asked the Defendant if he had raped the woman, and the

Defendant stated that he had. The Defendant told the detectives that he planned to release

the woman.

During cross-examination, Detective Thomas testified that he received the call about

a kidnapping and rape at around 10 a.m. on March 16, 1995. He understood that this was a

serious situation, and he initially responded to the location of the victim, which was a house

near where she said the Defendant had parked her car with her in the trunk. The victim told

him what had happened and pointed out her car, which was located at the Clearwater address.

The detective said that he knew that the Defendant potentially had a gun. Detective Thomas

said that four officers approached the house and treated the call as a possible “emergency

call.”

Detective Thomas said that he did not have his gun drawn when he knocked on Ms.

Johnson’s door. When Ms. Johnson answered the door, he asked her whose car was in the

driveway. She said it was her friend’s cousin. She pointed to a bedroom and walked toward

the bedroom to talk to someone there. Detective Thomas and Detective Mark Warf followed

her, and they found the Defendant asleep. They woke the Defendant and escorted him

outside. Detective Thomas then briefly looked for a gun. Detective Thomas said that he

believed another detective, Commander Amanda Preble Acton, was present when the

Defendant admitted to the kidnapping and rape.

Amanda Preble Acton, a commander with the Rutherford County Sheriff’s

Department, testified that she responded to the call in this case. She confirmed Detective

Thomas’s account of the events, adding that she was outside looking in the victim’s car for

potential evidence while Detective Thomas went inside the house. She saw the Defendant

being escorted from the home, and she was present when the Defendant made a statement

to police admitting that he had “taken a lady.” Commander Acton asked the Defendant if he

had raped the victim, and the Defendant responded, “[Y]es.” Commander Acton testified

that she never saw anyone use any signs of threat or coercion to induce the Defendant to

make these statements.

5

Commander Acton testified that the Defendant was brought to the interview room at

the police department for a video-recorded interview. Detective Warf was the primary

interviewer at that time, and he confirmed on the recording that the Defendant had been

given his Miranda warnings previously by another officer. The Commander joined them

about forty-five or fifty minutes into the interview. The State offered the video recording of

the interview, an additional enhanced audio recording of the interview, and also a transcript

of the interview. The State also offered a photocopy of a handwritten statement written by

the Defendant during the video-recorded interview.

During cross-examination, Commander Acton testified that, when they responded to

the Clearwater address, all the officers had their hands on their guns because they had been

told a gun was involved in the kidnapping. The commander did not hear Detective Thomas

give the Defendant his Miranda warnings, but Detective Thomas told her that he had done

so. Commander Acton said that, in addition to the Defendant, the woman who answered the

door at the Clearwater address was also brought to the police station, where she gave a

statement.

The Defendant testified that he was eighteen years old at the time he was arrested.

He had completed the tenth grade in school and had been expelled before he completed the

eleventh grade. The Defendant said he could read and perform arithmetic.

The Defendant testified that he had been arrested prior to his arrest in this case but

only for “[m]isdemeanors mostly, no felonies.” He said that, before his arrest in this case,

he had been read his Miranda rights on one or two previous occasions. The Defendant

described March 16, 1995, saying that in the morning, he was arrested at the residence of his

girlfriend, Tanya Renee Johnson, on Clearwater Court. At the time, he was walking in the

kitchen following Ms. Johnson who had awoken him to tell him that there were police

officers at the house. In the kitchen, the Defendant saw three or four police officers in plain

clothes. All the officers had their guns out and pointed at him, yelling for him to stop and

to get on the ground. The Defendant said he complied, and an officer asked him if he was

armed. The Defendant said that he was not, and an officer told him to get up and walked him

outside.

The Defendant said that, once outside, the officers were in a “semicircle” around him

with their guns pointed at him. The Defendant described the next events as follows:

The female detective was questioning me. She kept yelling at me with

her gun pointed at me, yes, she did. Did you rape her, did you rape her, did

you rape her. I kept shaking my head no. No. No. I ain’t raped nobody. No.

No. No. Yes, you did. Yes, you did. No. No. No. I ain’t rape nobody, no.

6

No. No. No. Just shake my head like that right there. I ain’t going to lie, I

was scared pissless, I ain’t going to lie to you.

Then turned around, they brought [Ms. Johnson] out, took her around

to the back of the house. One officer had a shotgun in his hands, he pushed

her to the ground. I looked over at [Ms. Johnson] because I could see where

they pushed her on the ground. I said oh, crap. I said, please don’t kill her.

Don’t hurt her. Like that right there. I knew I was. Yeah, I was done. I

thought I was going to die. I ain’t even going to lie to you.

The Defendant testified the “female” detective again asked him if he had raped the victim,

and the Defendant recalled he said “yes” and again asked them not to kill his girlfriend. He

said he told the officer, “I . . . did whatever you said I did, please don’t kill her.” The

Defendant conceded that the officers never touched him, but he said that they did not have

to because they had their guns pointed at his head. The Defendant said that the female

officer read him his rights after she “got him to admit to raping the woman.”

The Defendant said officers retrieved clothing from inside for him and then

transported him to the police station. He agreed that they read him his Miranda rights at the

time he gave a video-recorded statement. He said that, while he appeared calm in the video,

he was scared. The Defendant said he did not tell the officers interviewing him about what

had happened at Clearwater Court because he did not think that they would believe him.

The Defendant said that officers allowed him to make several telephone calls. He

called his grandmother and mother to tell them he had been arrested. He called Ms. Johnson,

and he called his other girlfriend at the time, Melinda, to explain to her what was happening.

The Defendant said the following then occurred:

Then when I hung up the phone, a white male detective came up in

there and I had my legs kicked out, kicked me out of the chair, kicked my feet

and I fell out of the chair and kicked me a couple of times and told me to get

my the [sic] black A up. Then he turned around and I jumped up, because I

was shackled to [the] chair. Man, don’t you put your doggone feet on me. He

called for help and they brought a nightstick, which he hit me one time in my

sternum area with and then he put me on the ground, put his knee on my back.

He uncuffed me from the chair and cuffed me behind my back. Then he

brought me downstairs with the nightstick still in his hands in front of the

camera with the camera crews, the reporters from the newspaper, whatsoever.

During cross-examination, the Defendant agreed that he was “assaulted” by the white

7

male detective after he gave a statement to Detective Gooch. The Defendant agreed that

Detective Gooch never threatened him or pulled a gun on him, and she left him alone to

make some telephone calls. Further, she reviewed his Miranda rights with him. The

Defendant agreed he voluntarily spoke with Detective Gooch but said he only did so because

he had previously been forced to admit to committing this crime, so he did not see the harm

in speaking with the detective.

The Defendant said that he was not under the influence of drugs or alcohol when the

officers arrived at Ms. Johnson’s house March 16. He said that he was on probation for a

misdemeanor at the time. The Defendant agreed that he did not have any visible marks on

him on the recording of his interview. The Defendant also agreed that he never mentioned

during the interview that his girlfriend had been threatened or that police officers had held

him at gunpoint. The Defendant agreed that he never filed a complaint against any police

officer for his or her actions.

The Defendant identified his own handwritten statement admitting to the kidnapping

and rape of the victim. He said that he was alone in the room when he wrote the statement.

Further, he said no one told him what to say.

Detective Kim Gooch2 testified by deposition that she received a call about the crimes

in this case. She responded to the police station, where she interviewed the victim and then

the Defendant. Detective Gooch said that she reviewed with the Defendant his Miranda

rights, and she had him sign a form indicating as much. The Defendant signed the form

indicating he was waiving those rights, and he expressed his willingness to speak with her.

The detective said that the Defendant did not appear to have any signs of injury or distress,

and he did not make any complaints to her about how he had been treated. She said she

allowed the Defendant to make phone calls while he was in the interview room.

Detective Gooch testified that the victim was examined at the hospital while the

detective waited outside the hospital room. Detective Gooch testified that she obtained

samples from the examination, and she followed standard procedure to let them dry properly.

She then turned the samples into the Tennessee Bureau of Investigation (“TBI”) crime

laboratory. The detective identified a report created by the TBI.

The detective said that, after interviewing both the victim and the Defendant, she

created a photographic lineup, which she showed to the victim. The victim identified a

2

Between the time of the Defendant’s arrest in 1995 and the 2012 hearing, Detective Kim Gooch

was married and changed her name to Kim Brooks. For the sake of clarity, and in accordance with the

record, we will refer to her herein as Detective Gooch.

8

photograph of the Defendant as the man who had kidnapped and raped her.

Detective Gooch testified that the victim told her that the Defendant had approached

her at the Hermitage Fitness Center with a weapon, forced her into the passenger seat of her

car, and then drove to another location. At that location while the two were in or near the

car, he raped her orally, anally, and vaginally, and then he put her in the trunk of her car. The

Defendant, she said, transported her to another location, a building in the Rivergate area, and

he took her out of the trunk and then raped her again. During the course of her investigation

the detective obtained a tape recording from a security camera at Hermitage Fitness Center.

She also obtained another tape from a security camera located behind a social security

building.

During cross-examination, Detective Gooch testified that after she interviewed the

Defendant, she issued a report closing the case. She said this action comported with her

department policy. Detective Gooch said that she did not accompany other officers to the

location where the Defendant was apprehended. She said she did not interview any of the

witnesses who were present when the Defendant was apprehended.

The trial court entered an order denying the Defendant’s motion to suppress his

statements. The trial court found:

The [D]efendant contends that his statements were made as the result

of coercion and threats and therefore should be suppressed.

....

In the instant motion, the Court has observed the testimony of the

witnesses and reviewed the [D]efendant’s statements. The Court does not find

the [D]efendant to be a credible witness and accredits the testimony of the

three officers. The [D]efendant’s allegations are not consistent with his

recorded statements, and he has not presented any credible proof to support the

contention that his statements were the result of coercion or threats of force.

On several occasions during his Rutherford County statement, the [D]efendant

expressed concern about his girlfriend not finding out about the charge he was

facing. At no time did the [D]efendant mention any conduct by law

enforcement against his girlfriend. The detectives were polite during the

statement and there were no overtones of force or coercion. The Court

accredits the testimony of the officers that they informed the [D]efendant of

his Miranda rights before he made any incriminating statements when he was

initially arrested, and that they did not threaten him. The Court finds that the

9

[D]efendant made an intelligent, knowing, and voluntary waiver of his

Miranda rights that was not given as a result of threats of force or coercion.

(footnotes omitted).

2. Motion to Dismiss

On April 23, 2012, the Defendant filed a motion to dismiss based upon the unavailable

rape kit evidence. In the motion the Defendant argued that, at the time of his arrest on March

16, 1995, police officers collected a variety of evidence, including clothing and a “rape kit”

from the victim. The Defendant acknowledged that he pled guilty to these charges on

November 16, 1995. The rape kit was held in the property room of the Metropolitan

Nashville Police Department for several years, and was destroyed February 15, 2000.3 The

Defendant asserted that the State had a duty to preserve this evidence and that, while it was

unclear whether this DNA evidence would be exculpatory, it was material to his defense. He

asserts that there was “an obvious potential” that the evidence would have been exculpatory.

The Defendant asked the trial court to dismiss the indictment.

In a supplemental motion, filed July 3, 2012, the Defendant argued that the State

should have been on notice that the Defendant was claiming his innocence based upon “his

frequent and voluminous filings” after he pled guilty. Counsel for the Defendant conceded

in the motion that there was no indication that the State had hid the existence of the rape kit

because it contained semen.

Wilford Klotzback, a sergeant assigned to the evidence storage section, testified that

his records indicated that the rape kit in this case came into the evidence storage section on

May 11, 1995. On January 10, 2000, Sergeant Phil Sage moved the rape kit from its

permanent storage location to a temporary location of DEST, which is a location code that

is used for items of evidence that have been identified for possible destruction. Sergeant

Klotzback explained the process for destruction of evidence, saying that evidence is first

moved to the DEST location until the District Attorney and the trial court approve of its

destruction. The District Attorney first reviews the cases after which they return to the police

department a list of cases that have been “cleared” for destruction. Sergeant Klotzback’s

office confirmed that this was the same procedure used at the time of the motion hearing, but

he was unaware whether this procedure was used in 2000, before he was assigned to the unit.

The sergeant identified an order of approval signed by Judge Wyatt on February 25, 2000,

3

The Defendant asserts that it is unclear from the destruction sheets whether the evidence was

destroyed February 15, 2000, or February 15, 2008. Based on the testimony at the motion hearing and

the trial court’s subsequent findings, we will use the date February 15, 2000.

10

which indicated that the rape kit could be destroyed. He drew up a court order and had it

signed by Judge Wyatt. His records indicated that the rape kit was marked destroyed on

February 15, 2000, but he had no document showing when the items were actually destroyed

During cross-examination, Sergeant Klotzback conceded that the records appeared to

indicate that the evidence was destroyed before the trial court signed the order approving its

destruction. The sergeant agreed that a rape kit is a small item that did not take up much

space in the property room.

Phillip Sage, a retired sergeant with the Metropolitan Police Department, testified that

he was the supervisor in the property room when the rape kit was destroyed. He said that it

was the policy of the property room to assign a complaint number to the evidence that

correlated with the case. The property room officers would check and verify that the case

had been adjudicated in court and that there were no appeals pending, which would cause

them to retain possession of the evidence.

Sergeant Sage testified that this case had gone through the court system and appeared

to be “completely over with.” The property room officers, therefore, added it to a list of

other cases to be destroyed. The list was submitted to the trial court for the authority to

destroy the property. Sergeant Sage testified that Judge Wyatt approved the destruction, and

the property was destroyed after his office received the judge’s order.

Sergeant Sage identified the discrepancy in the dates of the destruction of the evidence

and the judge’s order. He said he could “speculate” about what had happened, but he did not

know for sure. He maintained, however, that he never destroyed any property unless he had

an order from the court. He stated that he was the person who sought the court order, and

he would not have destroyed the property until that order was received.

During cross-examination, Sergeant Sage testified that the discrepancy in dates could

have been a typographical error.

On August 2, 2012, the trial court issued an order denying the Defendant’s motion to

dismiss based on findings discussed below.

3. DNA Evidence

On April 17, 2012, the Defendant filed a motion in limine, which he supplemented

on August 17, 2012, requesting that the trial court rule on whether he could present evidence

that DNA evidence was unavailable and whether the State could present evidence that he had

previously pled guilty. The Defendant contended that the State had recovered a biological

11

specimen during the victim’s medical examination and that this evidence was never tested.

He acknowledged the State’s argument that it did not test the specimen because he pled

guilty, but he countered that the State had eight months to test the sample between when it

was gathered and before he pled guilty.

At a hearing on the issue, the Defendant informed the trial court that the evidence he

was seeking was destroyed after the Defendant pled guilty, and the case appeared resolved.

He said he wanted to be able to inform the jury that the evidence was destroyed but not have

the jury know the reason for its destruction. The trial court expressed concern that allowing

the Defendant to make an issue of the biological evidence not being tested would be

misleading if the jury were not also informed that the reason it was not tested was because

the Defendant pled guilty.

The trial court found:

In terms of the Court’s ruling on this matter and I thought, there could

be hundreds of examples, an example maybe a shooting, a murder, and the

bullets collected from the murder victim and the gun could be matched or a

gun could be matched to that bullet and if the gun were put into the

defendant’s hand, then that would be circumstantial proof that he was the

shooter.

Well, if that [D]efendant fleeing the scene went across this bridge right

here and threw the gun over in the river, then I don’t think it’s appropriate to

question, bring up, why wasn’t the gun matched? Or you can’t prove your

case because the gun was never put in any client’s hands, or the gun with the

bullet was never matched to the gun. Well, the gun isn’t there because the

defendant threw it over in the river.

If you made that argument and then prevented the State from asking the

defendant what happened to the gun, I threw it in the river, then that would be

crazy. It would be extremely misleading and unfair, unfairly prejudicial to the

State. And I think, you know, the defense attorneys are advocating for their

client but also realized, and not necessarily acknowledged here at this motion

hearing here, but understand that that obviously would then put the Court in

a predicament in terms of ruling on: Can the State then explain why they didn’t

go further? And I have no clue. Maybe they’ve got ten reasons to explain that.

Maybe from some of the [D]efendant’s prior testimony that he ple[d] guilty

because he thought someone was going to kill him if he didn’t, I don’t know.

But it appears at this hearing that they are not wanting that option. They are

12

not wanting the Court to rule on, well, if we can ask that, then we are okay

with the State following up as to why because we’ve got some great

explanations about why he ple[d] guilty. In and of itself, the guilty plea –

obviously, the State just couldn’t introduce in and of itself in their case in chief

because that is unfairly prejudicial it’s not relevant to anything at this point,

but it could become extremely relevant if this issue were raised by the defense.

So one, I don’t think it’s relevant under 401. It may have been

probative if it had been tested, but it’s not tested because of the guilty plea.

And so – but if even if it passed 401 we get to 403 and I understand the

weighing process there and substantially the probative value would have to be

substantially outweigh[ed] by the unfair prejudice, but there is that confusion,

misleading area if this issue is brought up, and it would be unfairly prejudicial.

Usually that rule – you know, we deal with issues that are unfairly prejudicial

to the defendant, but it applies to the State as well, but more so of misleading

the jury. The jury is like oh, well, the State – we heard from five witnesses

that they didn’t do any further testing, and like I said that’s, you know, going

to be an out there anyway, it’s a given that it wasn’t.

But to be able to compound that further by – and I’m not in any way

preventing the defendant from arguing there is a lack of proof, . . . but to

specifically say or the elements haven’t been shown in terms of the allegation,

but to specifically allow the questioning concerning the lack of DNA testing

when we all know that – why there was not DNA testing would be extremely

misleading and confusing to the jury.

So that issue, in the Court’s opinion, just isn’t an issue because there

was no testing.

4. Trial

The case then proceeded to trial during which the parties presented the following

evidence: The victim, K.D.,4 testified that in March 1995 she was living in Davidson County,

was thirty-three, and was married. The victim described herself as “overweight” at the time

and had been diagnosed as diabetic. She was going to a gym, The Hermitage Fitness Center,

for water aerobics in an attempt to lose weight. The victim said she also suffered from

asthma and took medication to treat her asthma.

4

In keeping with the policy of this Court, we will refer to the victim by her initials to protect her

privacy.

13

The victim recalled that her aerobics class was scheduled to begin at 7:00 p.m. She

arrived at the gym alone, driving her mother-in-law’s white four-door vehicle. When she

arrived at the gym, the victim was wearing a swimsuit under a T-shirt and some sweat pants.

Her class did not start on time, and she got out of the class at around 7:30 or 7:40 pm. She

exited the gym carrying her gym bag and wearing only her T-shirt and pants. She did not

have on under clothing because she came to the gym in her bathing suit.

The victim described the events that occurred after she exited the gym:

I came out of the fitness center and I walked to my vehicle. I had my

keys in my hand. I . . . unlocked the car and got in. Before I could get the

door completely shut, it was pulled back open and I had a gun put in my face

and was told to scoot over.

....

I got so nervous I dropped the keys. And, of course, I had a g[u]n[] in

my face so I complied. And then he told me to hand him the keys and I looked

in my hand and I’m like, yeah, I don’t know where they’re at. And he is just

like, yes, you do, because you just unlocked the car. That’s the reason why I’m

taking this car is because you had the keys in your hand.

The victim said she found the keys on the floorboard of the car, and she slid over to

the passenger side of the car. The Defendant entered the vehicle, started the car, and drove

out onto the road. He told the victim he was going to let her go in a little bit, and he made

her put on her seat belt. The Defendant told the victim that he would kill her if she tried to

get away, and he mentioned that his gun had a “hair trigger.” The Defendant grabbed the

victim’s breast, which startled her. The Defendant said “oh, don’t worry, I’m not going to

rape you, or anything, I just like big breasts.” The Defendant noted that there was a handicap

placard hanging from the rearview window. He asked her what the placard was for, and the

victim told him that she had bad knees and could not walk very well.

The victim said the Defendant drove toward the Hermitage and parked near the main

gates, which were closed. The Defendant unzipped his pants and pulled them down. He

placed the gun to the victim’s head and pulled her head down toward his crotch area. He

then penetrated her mouth with his penis. The Defendant told the victim to get out of the car

and take her pants off. She said he bent her over the hood of the car and he attempted to

perform anal sex upon her. The victim said she clamped down the muscles of her rectum so

that the Defendant would be unable to penetrate her. The victim said that the Defendant spit

on her back and used his saliva for lubrication. He repeatedly attempted anal sex but was

14

unable to penetrate her successfully. The victim said she repeatedly told the Defendant that

it hurt and asked him to stop.

The victim said that the Defendant then forced her into the backseat of the car, where

she laid face down. The Defendant then vaginally penetrated her from behind. The victim

said that the car doors were open during these events, and the car light was illuminated

providing her with a good view of the Defendant during the attack. She was, therefore, able

to see the Defendant during the attack.

The victim said that the Defendant opened the trunk of the car and removed a

wheelchair that belonged to her mother-in-law. He then forced her into the trunk and

slammed the lid of the trunk shut. The Defendant then told her that he was going to let her

go after a while and to be quiet. The victim said that, from the trunk, she could hear the

Defendant listening to rap music at a loud volume. She also heard the Defendant making

telephone calls. The victim said that, at one point, the Defendant stopped the vehicle and

told her he was going to let her go in a few minutes. When the Defendant opened the trunk,

the trunk light illuminated, and the victim could again see his face.

The victim said the Defendant stopped a short time later and once again opened the

trunk. He told her to get out and to get undressed. The victim noted that they were behind

a brick building. The Defendant, who still had the gun, told the victim to give him oral sex.

He penetrated her mouth. She said she told him that she did not like that, and he put her on

the back seat of the car and vaginally raped her again. At one point, the Defendant’s penis

fell out of her. He made the victim put it back inside her, and he told her that if it fell out

again he was going to anally rape her.

The victim testified that, during one the rapes, she had an asthma attack. The

Defendant asked her if she had asthma, and, when she responded affirmatively, he acted

concerned. He, however, placed her back inside the trunk of the car after raping her. The

victim said she was in the trunk for “[a] long time.” The Defendant then cracked the lid of

the trunk and asked the victim how to open the gas door. He told the victim that if she

screamed, he would kill her. She told him how to open the gas door, and he pushed the trunk

closed again.

The victim said that, at some point thereafter, the Defendant backed into something.

He stopped the car and asked if the victim was okay. He apologized, telling her he had

backed into a pole. The victim said the Defendant drove around for some length of time.

She heard him tell someone on the telephone that he wanted to get some sleep. She then

heard what she thought was him getting out of the car because she heard the car door open

and shut and heard a dog barking like “it wanted to get off its chain and kill someone.” She

15

then heard what sounded like a metal screen door to a house open and shut, and the dog

stopped barking.

The victim said she started feeling around the trunk, and she found a toolkit that her

mother-in-law kept in the trunk. She said that she opened it and found a “nut driver.” She

used it to “pop[]” open the trunk. She cracked it slightly and saw that there were trees on one

side. It appeared that there was a house or a trailer that had lights and a picture window

facing the car. The victim said she was concerned about exiting the trunk for fear that the

dog she had earlier heard might attack her before she could reach the nearest house. Her

concern was heightened by the fact that she had difficulty walking because of her knees. For

these reasons, she closed the trunk.

The victim testified it was “quite some time” before the Defendant came out of the

house, but she did not think it was long enough for him to get a full night’s sleep. She heard

the Defendant get into the car and start it again. She heard the stereo “blaring,” and could

feel the car moving again. The Defendant, she said, drove for quite some time. The victim

said that she was aware that the sun had risen because she could see sunlight filtering into

the trunk from the taillights. The Defendant asked the victim if she had to go to the

bathroom, and the victim responded, “[Y]es, very badly.” He also handed her a bag from

McDonald’s that contained two Egg McMuffins. He then shut the trunk again. The victim

said that, because of her diabetes, she ate a few bites of the Egg McMuffin in an effort to

maintain her blood sugar level.

The victim recalled that the Defendant stopped the car behind a strip mall. He let the

victim out to use the bathroom, and she asked him if she could have her towel from her gym

bag. The Defendant acquiesced, warning her not to run or scream or he would kill her. The

victim relieved herself by a lamppost. The victim said she placed the towel she used in the

backseat. The victim said that a commercial truck drove by after she had urinated, and the

Defendant put his arm around her waist. The victim said that it was “broad” daylight at this

point.

At this point, the victim told the Defendant that her husband was away from home

driving a truck and that her niece was watching the victim’s children. She said that her niece

would be “frantic” by now. The Defendant told the victim to call her niece and come up with

a plausible explanation about why she had not returned from the gym. The victim said she

called her niece, Janthra, but she did not answer. She left a message on the answering

machine telling her that she had seen a friend, Joanna, and the two got intoxicated. The

victim said on the message that she had slept at her friend’s house. She told Janthra that she

should be home by the time the children returned from school, at which point the Defendant,

who was standing next to her, shook his head “no.” She asked Janthra to get the children

16

something to eat. The victim explained that this message was actually a cryptic message to

her husband. She said that she did not, in fact, have any children, that she called her niece

Joy and not Janthra, that her friend Joanna had died recently, and that she did not drink. She

assumed that when her husband got the message he would know that something was wrong

and call the police.

After the victim left the message, the Defendant again put her in the trunk. He drove,

and the trunk became stifling. She heard the car door slam and also a house door open and

close. The victim said she waited a short period of time and then “[p]opped” the trunk

again. She only cracked it to see out. She was able to see another house, so she knew it was

a fairly well-populated area. The victim got out of the trunk, and closed the trunk, making

sure it did not slam or make any noise. The victim said that, because she was unsure which

house the Defendant had entered, she walked between a couple of houses to another road.

She saw a couple working in their garden, and she called to them and asked the woman if she

could call the police. The woman agreed and invited the victim to come into their home.

The victim recounted that the police arrived quickly, and she gave them a description

of the Defendant. The victim said that police transported her from the couple’s house to the

police station where she spoke with officers and gave a statement. She helped police officers

find some of the locations where the attacks had occurred, and she went to the hospital for

a medical examination. The victim said she also identified the Defendant from a

photographic lineup created by the police.

The victim identified a picture of the gun that the Defendant pointed at her, and she

said that she believed that it was a real weapon at the time. The victim also identified

photographs of the McDonald’s bag in the trunk of the car, the towel she used when she

urinated that was located in the backseat of the car, and her purse in the driver’s seat. The

victim identified a photograph of a white stain on the front seat of the car, and she said that

the stain was a result of the sexual assaults.

During cross-examination, the victim testified that a police officer informed her that

the Defendant was in custody and that some of her belongings were recovered from the house

where he had been arrested. She said that she described the Defendant to police as between

five feet five inches and five feet eight inches tall. The victim agreed that she was mistaken

and that the first assault occurred in the front seat and not the back seat of the car. The

victim agreed that she saw the Defendant when he was being arrested by police at the

Clearwater Court house. She further agreed that this was before she was shown the pictures

for the photographic lineup. She said, however, that this did not influence her recollection

of the Defendant’s appearance.

17

During redirect examination, the victim said that because she had multiple

opportunities to view the Defendant during daylight hours, she was confident in her

identification of him.

Detective Charles Thomas with the Rutherford County Sheriff’s Office testified that

at 10:00 a.m. on March 16, 1995, he responded to a 911 call for help. He said that 911 had

received a call from a woman at 610 Sedridge Drive, who said that the victim had come to

her home asking for help, saying that she had been kidnapped and had gotten out of a car

located at 7822 Clearwater Court.

Detective Thomas testified that he first responded to 610 Sedridge Drive. Once

there,the victim told him that her car was located at 7822 Clearwater Court. The detective

proceeded to 7822 Clearwater Court, where he saw the car that the victim had described and

noted that the trunk of the car was ajar. Detective Thomas knocked on the door several

times, and a woman named Tonya Johnston came to the door. Ms. Johnston told the

detective that she lived at the residence with her mother. The detective asked her whose car

was parked in the driveway, and Ms. Johnston responded that it belonged to her cousin’s

friend.

Detective Thomas testified that Ms. Johnston opened the door and turned and walked

into the house, and he and another detective followed her. As she was walking, Ms. Johnston

was talking to an individual in the bedroom, who the detective later identified as the

Defendant. The Defendant was lying on a bed in the bedroom, and Detective Thomas asked

him to get up. The other detective took the Defendant outside, and Detective Thomas briefly

looked around for weapons in the house. The detective then asked Ms. Johnson what she

knew about this situation.

Detective Thomas said he went outside and administered to the Defendant his

Miranda warnings. The Defendant then told him that he needed a ride from Nashville, so

he kidnapped a lady, put her in the trunk of her car, and drove to this house. Another

detective, Detective Acton, was also present and asked the Defendant if he raped the woman.

The Defendant responded that he did rape her. He said he was eventually going to let the

woman go. Detective Thomas testified that both the victim and the Defendant were

separately transported to the police station.

During cross-examination, Detective Thomas testified that he knew the serious nature

of this case at the time he responded. He said that he responded with several officers, but he

did not recall whether their weapons were drawn at the time they knocked on the door and

entered the home. The detective said that it would have been police procedure to have their

weapons drawn, but he did not think he had his drawn. Thus, he did not follow police

18

procedure.

Detective Thomas agreed that, when he found the Defendant in the bedroom, the

Defendant did not try to escape or resist the officer. The detective agreed that he did not

have the Defendant sign a Miranda waiver form. He said he did not recall the Defendant’s

specific words when the Defendant admitted to raping the victim, but he maintained that the

Defendant had admitted to raping the victim.

Charles Ray Blackwood, Jr., testified that he was a crime scene investigator for the

Metropolitan Nashville Police Department at the time that the crimes in this case allegedly

occurred. He said that he processed the victim’s vehicle. Investigator Blackwood

photographed the vehicle, he took fingerprints from the vehicle, and he collected other

evidence found inside the vehicle. The investigator identified photographs associated with

his work on the victim’s car. Investigator Blackwood inventoried the items that he gathered

from the vehicle as evidence, including:

[V]acuumings; hair from the end of the barrel of the gun; one Crossman BB,

a Peter Marksmen pistol from the driver’s floorboard; towel, front right rear

seat floorboard; right front seat cover, that section that was stained; lower

section of the seat, seat cover from the driver’s lower section of the front seat,

part you sit in the driver’s seat, . . . two tape lifts.

He also gathered evidence from inside the trunk of the car. One of those items was a “nut

driver.” He had learned that the victim said she used a nut driver to get out of the trunk.

Investigator Blackwood said that he tested the nut driver on the trunk and found that he could

release the trunk lock and open the trunk with the nut driver.

Officer Blackwood testified that he lifted several prints from both the inside and the

outside of the victim’s vehicle. The officer drew a sketch memorializing each location where

he lifted a print. Officer Blackwood took prints from the gun located in the vehicle. He also

lifted a print of the serial number of the gun.

During cross-examination, Officer Blackwood testified that he created thirteen

fingerprint cards from prints that he lifted from the vehicle, some of them from the inside of

the trunk.

Amanda Preble Acton,5 a commander with the Rutherford County Sheriff Department,

5

Commander Acton was married during the time between the Defendant’s arrest and his trial.

Her married name was Morton. For consistency, we will refer to her by “Acton,” her name at the time of

19

testified that at the time of the Defendant’s arrest she held the rank of detective and she was

assigned to investigate general criminal activity. Commander Acton testified that she

responded to the call in this case and first went to the home where the victim was located.

There at the time were also Sergeant Thomas, Detective Gross, and Detective Warf. The

officers were told that the victim’s car was located nearby on Clearwater Court.

Commander Acton testified that, when she arrived at the Clearwater Court address,

she saw the vehicle in “park” with the trunk unlatched. Looking inside the vehicle, the

commander saw what appeared to be an automatic handgun. Commander Acton said other

officers went to the door to inquire about the Defendant’s whereabouts, and they returned

with the Defendant. The commander was present when the Defendant was read his Miranda

rights and when thereafter the Defendant made statements to police. At one point,

Commander Acton asked the Defendant specifically if he had raped the victim, and the

Defendant said, “[Y]eah” and informed her that the attack had all happened in the Nashville

area.

Commander Acton testified that officers transported the Defendant to the police

department for formal interviews. The Defendant was again given his Miranda warnings,

and he signed a waiver of those rights. The commander was present for portions of the

Defendant’s video recorded interview, and she assisted in obtaining his recorded statement

and a handwritten statement and transporting them. Commander Acton read the Defendant’s

handwritten statement as follows:

I pick up the lady at the . . . fitting center; calm her down. Drove off to

the Hermitage; had sex. Put her in the trunk. Drove to pick up some money.

She was in the trunk for about five hours, I think. Went to my girlfriend. Got

picked up. She made me nervous so I put her in the trunk.

The State then offered, and the trial court admitted, the video recorded statement and an

accompanying transcript.

Kimberly Gooch, who was a detective with the Metropolitan Nashville Police

Department at the time of the Defendant’s arrest, testified that she was assigned to the adult

sexual crimes unit at that time. She said that the Rutherford County Sheriff’s Department

gave her a copy of the Defendant’s recorded interview and handwritten statement. Detective

Gooch interviewed the victim, who she described as cooperative. She then interviewed the

Defendant. Detective Gooch learned in the interview that the Defendant had completed the

eleventh grade in school and that he was employed at Taco Bell.

these events.

20

Detective Gooch said that, during the interview, the Defendant admitted that he was

walking down the road when he saw the victim and approached her car. He said that he

walked up to her with a BB gun that belonged to his uncle. The BB gun, he said, looked like

a real .45 gun. The Defendant said he forced the victim into the passenger side of the

vehicle. He drove her to the Hermitage, where he forced her to perform oral sex. He also

had vaginal sex with her at this location. The Defendant told the detective that the victim

was making him nervous, so he opened the trunk, took out a wheelchair, and put the victim

into the trunk of the car. The Defendant went on to state that he pulled behind the Social

Security building and again had the victim perform oral sex upon him, and then he again

vaginally raped her. The Defendant said that he attempted anal sex at some point during the

evening. The State played an audio recording of the interview, which confirmed the

detective’s account of the interview.

Detective Gooch testified that, as part of her investigation, she transported the victim

to the hospital for a “medical/legal” exam. During such examinations, doctors ask victims

of sexual assault about the events that occurred, gather evidence, and look for signs of

trauma. Detective Gooch gathered the evidence obtained by the nurse during the

examination. Detective Gooch said that, a few days later, she showed the victim a

photographic lineup containing the Defendant’s photograph. The victim identified the

Defendant’s photograph as the man who had kidnapped and raped her.

During cross-examination, the detective testified that she went to the Hermitage to

document it and take photographs. She did not find the wheelchair that the Defendant said

he had removed from the car. She agreed that she did not speak with anyone who worked

at the Hermitage, the Social Security office, or the fitness center.

During redirect examination, Detective Gooch said that, during her interview with the

Defendant, she did not see any injuries on him and he did not appear to be in distress. The

detective said that she allowed the Defendant to use the telephone because he was being

cooperative and had accepted responsibility for what he had done.

Marilee Weingartner, a family nurse practitioner, testified that she performed “medical

legal examinations” on rape victims. She performed the examination of the victim in this

case and wrote a report documenting the examination. Ms. Weingartner read the portion of

her report that contained the victim’s statement of what had happened, and it substantially

comported with the victim’s trial testimony. Ms. Weingartner described the victim’s

demeanor in her report, stating that the victim appeared glad to be alive, angry, and tired.

The crotch of the victim’s pants was ripped and her hair was unbrushed.

Ms. Weingartner testified about the victim’s physical examination. She said that there

21

was semen on the area outside of her vulva and also specs of brown debris. The nurse found

blue lint in the victim’s pubic hair. Ms. Weingartner gathered a sample of vaginal fluid, and

she saw sperm. She gave Detective Gooch the evidence that she had gathered during the

examination.

Margaret Bash, an agent with the TBI crime laboratory, testified that she received the

evidence contained in the medical legal kit in this case. She discovered spermatozoa and

semen in the victim’s vaginal fluid that indicated that the intercourse had occurred within

twenty-four to thirty-six hours before the sample was taken. She did not find semen or

spermatozoa from the sample taken from the victim’s mouth, but she said this was not

surprising considering that everyone produces saliva “pretty much” continuously.

Jacqueline Cockrill, a civilian working in police identification with the Metropolitan

Nashville Police Department, testified that she examined the fingerprints submitted in this

case. She found prints matching the Defendant’s prints on: the steering wheel crank knob;

the edge of the driver’s door; the left rear door outside; the trunk; the trunk lid; and the BB

gun.

During cross-examination, Ms. Cockrill agreed that there were multiple prints from

the inside of the trunk that did not match the victim’s or the Defendant’s prints.

Additionally, there were several other prints from other locations in the vehicle submitted

that did not match either the victim or the Defendant.

Based upon this evidence, the jury convicted the Defendant of especially aggravated

kidnapping, aggravated robbery, four counts of aggravated rape, and attempted aggravated

rape.

5. Sentencing

At the sentencing hearing, the State offered the presentence report and certified copies

of the Defendant’s convictions. Those convictions showed that the Defendant had previously

been convicted of theft and failure to stop at the scene of an accident. The Defendant was

serving a sentence of probation at the time he committed the offenses herein.

The victim testified about how the Defendant’s actions had impacted her life. She

said that she suffered from post-traumatic stress disorder. She said that, before these attacks,

she and her husband had a “very loving marriage.” After the rape, he “never touched [her]

again,” and the two “wound up divorced.” The victim said that she had since moved away

from Tennessee.

22

The victim testified that she had also become claustrophobic and, for years, she could

not listen to music at all. She said she still could not listen to “rap” music. She said that she

suffered from extreme stress from these rapes, and she attributed her six heart attacks to the

stress. The victim expressed to the trial court her belief that the Defendant was a danger and

was without a conscience.

On behalf of the Defendant, Glenda Davis, the Defendant’s mother testified that the

Defendant had just turned eighteen when he was arrested in this case. Ms. Davis said that

the Defendant’s grandparents raised him, with her assistance. She described the Defendant

as a “good kid.” She asked the judge for leniency, saying that everyone deserves a second

chance in life.

During cross-examination, Ms. Davis agreed that this incident occurred on March 15,

and that the Defendant’s birthday was April 13. He was, therefore, almost nineteen when it

occurred. She said she did not recall him being on probation for theft at the time of this

incident. Ms. Davis said that the Defendant had never expressed remorse to her for these

crimes, but she said the two had never discussed this situation.

Based upon this evidence, the trial court sentenced the Defendant to twenty years for

Counts 1, 2, 3, 6 & 7. The trial court sentenced the Defendant to ten years for Counts 2 and

5. The trial court found that the Defendant qualified as a “dangerous offender,” and it

ordered partial consecutive sentencing, for a total effective sentence of seventy years. It is

from these judgments that the Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that: (1) the trial court erred when it denied his

motion to suppress his statements to police; (2) the trial court erred when it denied his motion

to dismiss based upon the State’s destruction of evidence; (3) the trial court erred when it

ruled on a DNA issue; (4) the evidence is insufficient to sustain his conviction for two counts

of aggravated rape because the State did not prove that he was armed with a weapon or

anything the victim reasonable believed was a weapon; (5) the trial court erred when it

allowed separate convictions for aggravated rape in Counts 3 and 4 and attempted aggravated

rape in Count 5 because separate convictions violate his protections against double jeopardy;

(6) the trial court erred when it ordered his sentences to run consecutively and when it

ordered him to serve his sentence for especially aggravated kidnapping at 100 percent.

1. Motion to Suppress

The Defendant contends that the trial court erred when it denied his motion to

23

suppress his statements to police: (1) an oral statement made to Commander Acton the day

of his arrest; (2) a handwritten statement written by the Defendant at the Rutherford County

Sheriff’s Department shortly after his arrest; (3) a videotaped statement made at the

Rutherford County Sheriff’s Department shortly after his arrest; and (4) a videotaped

statement made by the Defendant to Metropolitan Nashville Police Department Detective

Gooch after he was transported to Nashville from Rutherford County. The Defendant asserts

that his four statements were involuntary and the product of coercion and threats by police

at the time of his arrest. The State counters that the record “amply reflects” that the

Defendant knowingly and intelligently waived his Miranda rights and that, thus, the trial

court properly denied his motion to suppress.

Our standard of review for a trial court’s findings of fact and conclusions of law on

a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld

unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing

party in the trial court is afforded the ‘strongest legitimate view of the evidence and all

reasonable and legitimate inferences that may be drawn from that evidence.’” State v.

Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864

(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the

law to the facts, without according any presumption of correctness to those conclusions. See

State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299

(Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the

witnesses, determine the weight and value to be afforded the evidence, and resolve any

conflicts in the evidence. Odom, 928 S.W.2d at 23.

The Fifth Amendment to the United States Constitution provides that “[n]o person .

. . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.

amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth

Amendment’s protection against compulsory self-incrimination is applicable to the states

through the Fourteenth Amendment); see State v. Jose GARCIA a/k/a Hilberto Alejandro

Rentira Lerma, 2012 WL 850698, No. M2010-01661-CCA-R3-CD, at *18 (Tenn. Crim.

App., at Nashville, Mar. 13, 2012), perm. app. denied (Tenn. Aug. 16, 2012). Article I,

Section 9 of the Tennessee Constitution provides that “in all criminal prosecutions, the

accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, §

9. “The significant difference between these two provisions is that the test of voluntariness

for confessions under Article I, § 9 is broader and more protective of individual rights than

the test of voluntariness under the Fifth Amendment.” State v. Crump, 834 S.W.2d 265, 268

(Tenn. 1992).

Generally, one must affirmatively invoke these constitutional protections. An

24

exception arises, however, when a government agent makes a custodial interrogation.

Statements made during the course of a custodial police interrogation are inadmissible at trial

unless the state establishes that the defendant was advised of his right to remain silent and

his right to counsel and that the defendant then waived those rights. Miranda v. Arizona, 384

U.S. 436, 471-75 (1966); see also Dickerson v. United States, 530 U.S. 428, 444 (2000);

Stansbury v. California, 511 U.S. 318, 322 (1994). A defendant’s rights to counsel and

against self-incrimination may be waived as long as the waiver is made voluntarily,

knowingly, and intelligently. Miranda, 384 U.S. at 478; State v. Middlebrooks, 840 S.W.2d

317, 326 (Tenn. 1992). “Confessions that are involuntary, i.e., the product of coercion,

whether it be physical or psychological, are not admissible.” State v. Phillips, 30 S.W.3d

372, 376 (Tenn. Crim. App. 2000) (citing Rogers v. Richmond, 365 U.S. 534, 540 (1961)).

In order to make the determination of whether a confession was voluntary, the particular

circumstances of each case must be examined. Id. at 377 (citing Monts v. State, 218 Tenn.

31, 400 S.W.2d 722, 733 (1966)). In considering the totality of the circumstances a court

should consider:

[T]he age of the accused; his lack of education or his intelligence level;

the extent of his previous experience with the police; the repeated and

prolonged nature of the questioning; the length of the detention of the accused

before he gave the statement in question; the lack of any advice to the accused

of his constitutional rights; whether there was an unnecessary delay in bringing

him before a magistrate before he gave the confession; whether the accused

was injured intoxicated or drugged, or in ill health when he gave the statement;

whether the accused was deprived of food, sleep or medical attention; whether

the accused was physically abused; and whether the suspect was threatened

with abuse.

State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (citing State v. Readus, 764 S.W.2d

770, 774 (Tenn. Crim. App. 1988)). No single factor, however, is necessarily determinative.

State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (citing Fairchild v. Lockhart, 744

F.Supp. 1429, 1453 (E.D. Ark. 1989)). Further, “[a] trial court’s determination that a

confession was given knowingly and voluntarily is binding on the appellate courts unless the

defendant can show that the evidence preponderates against the trial court’s ruling.” State

v. Keen, 926 S.W.2d 727, 741 (Tenn. 1994).

“Coercive police activity is a necessary prerequisite in order to find a confession

involuntary.” Id. (citing State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). “The crucial

question is whether the behavior of the state’s officials was ‘such as to overbear

[defendant]’s will to resist and bring about confessions not freely self-determined.’” Id.

(quoting Rogers, 365 U.S. at 544); see State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980).

25

The question must be answered with “complete disregard” of whether the defendant was

truthful in the statement. Phillips, 30 S.W.3d at 377 (citing Rogers, 365 U.S. at 544).

We conclude that the evidence does not preponderate against the trial court’s finding

that the Defendant’s confessions were made after he knowingly and voluntarily waived the

Miranda rights given to him. The evidence presented showed that police officers

apprehended the Defendant while he was sleeping at the home of his girlfriend. They

brought him outside, and both Detective Thomas and Commander Acton testified that

Detective Thomas issued the Defendant his Miranda warnings. The officers then questioned

him about the car parked in the driveway and about his interactions with the victim. The

Defendant told them that he had kidnapped the victim because he needed a ride and that he

put her in the trunk. When directly asked if he raped the victim, the Defendant said yes.

During the suppression hearing, the Defendant offered his testimony that four police

officers entered the home where he was sleeping with their guns drawn. They told him to

put his hands on the ground and get his “ass” on the ground. He said he was not armed and

that the officers walked him outside, standing in a semicircle around him with their guns

pointed at him. A female detective then pointed a gun at him and repeatedly yelled, “Did you

rape her?” He said he repeatedly said, “No.” The Defendant said that, at that point, the

police brought his girlfriend outside, and an officer carrying a shotgun pushed her to the

ground. The Defendant said he pleaded with the police not to hurt or kill his girlfriend. He

then admitted to the rape, saying, “I did whatever you said I did, please don’t kill her.” The

Defendant said it was only after this that the officers read him his Miranda rights.

The Defendant said he was then brought to Rutherford County Sheriff’s Department

where he was given his Miranda warnings at the beginning of a video recorded statement.

The Defendant signed a waiver of those rights. The Defendant again admitted to his conduct,

and he provided a detailed account of the crimes. The Defendant also gave a handwritten

statement, consistent with his previous two statements. The Defendant was transferred to the

Metropolitan Nashville Police Department, where he was again given his Miranda warnings.

The Defendant signed a waiver of those rights and provided a fourth statement, consistent

with the previous three accounts. The Defendant explains that he maintained his guilt

because he did not think that the police would believe him because he was black and the

victim and his girlfriend were both white.

The trial court stated it did not “find the [D]efendant to be a credible witness” and it

“accredit[ed] the testimony of the three officers.” The trial court further found that the

Defendant’s allegations were not consistent with his recorded statements and that he had not

presented credible proof to support the contention that his statements were the result of

coercion or threats. The trial court noted that the Defendant, during his Rutherford County

26

statement, expressed concern about his girlfriend not finding out about the charge he was

facing but did not mention the alleged conduct by law enforcement officers. The trial court

accredited the testimony of the officers that they informed the Defendant of his Miranda

rights before he made any incriminating statements when he was initially arrested and that

they did not threaten him. The trial court found that the Defendant made an intelligent,

knowing, and voluntary waiver of his Miranda rights, and that the waiver was not the result

of any coercion or threats of force.

The trial court heard the testimony of the witnesses, and it did not err when it

accredited the testimony of the law enforcement officers and when it found the Defendant

not to be credible. There is ample evidence in the record that the Defendant was given his

Miranda warnings before he gave his first statement to police. The Defendant was,

thereafter, given those warnings on two other occasions, and he provided police with four

consistent statements admitting that he kidnapped and raped the victim. The trial court did

not err when it denied his motion to suppress. The Defendant is not entitled to relief on this

issue.

2. Motion to Dismiss

The Defendant asserts that the trial court erred when it denied his motion to dismiss

his charges based upon the State’s destruction of evidence. He asserts that he proved that,

in 2000, the State destroyed the “rape kit” evidence taken from the victim during her medical

exam. The State’s destruction of this potentially exculpatory evidence, he asserts, violated

his right to a fair trial. The State counters that the trial court properly denied the motion to

dismiss after finding that the State was not negligent when it destroyed the evidence and that

the Defendant could receive a fundamentally fair trial without the unavailable evidence.

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution provides for every defendant the right to a fair trial. “As a general rule, . . . a

trial lacks fundamental fairness where there are errors which call into question the reliability

of the outcome.” State v. Ferguson, 2 S.W.3d 912, 914 n.3 (Tenn. 1999) (citing Betts v.

Brady, 316 U.S. 455 (1942); Watkins v. State, 393 S.W.2d 141, 144 (Tenn. 1965); Lofton v.

State, 898 S.W.2d 246, 248 (Tenn. Crim. App. 1994)). To facilitate the right to a fair trial,

a defendant has a constitutionally protected privilege to request and obtain from the

prosecution evidence that is either material to guilt or relevant to punishment. Brady v.

Maryland, 373 U.S. 83, 87 (1963). Even in the absence of a specific request, the prosecution

has a constitutional duty to turn over exculpatory evidence that would raise a reasonable

doubt about a defendant’s guilt. United States v. Agurs, 427 U.S. 97, 110- 11 (1976). In the

landmark case of Brady v. Maryland, the United States Supreme Court held that the

prosecution has a constitutional duty to voluntarily furnish the accused with any exculpatory

27

evidence that pertains to (a) the guilt or innocence of the accused and/or (b) the punishment

which may be imposed if the accused is convicted of a criminal offense. Brady, 373 U.S. at

83.

The State has a general duty to preserve all evidence subject to discovery and

inspection as part of Tennessee Rule of Criminal Procedure 16. State v. Ferguson governs

claims regarding the State’s duty to preserve potentially exculpatory evidence. 2 S.W.3d

912, 917 (Tenn. 1999); see also State v. Merriman, 410 S.W.3d 779, 785 (Tenn. 2013).

Ferguson requires a trial court to determine “[w]hether a trial, conducted without the [lost

or] destroyed evidence, would be fundamentally fair.” Ferguson, 2 S.W.3d at 914. When

this claim is raised by a defendant, Ferguson first requires the trial court to determine

whether the State had a duty to preserve the evidence. In the Tennessee Supreme Court’s

recent case, Merriman, it stated:

In Ferguson, we acknowledged the State’s general duty to preserve all

evidence subject to discovery and inspection under Rule 16 of the Tennessee

Rules of Criminal Procedure and other applicable law, including Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Ferguson,

2 S.W.3d at 917. We recognized, however, the difficulty in defining the

boundaries of the State’s duty to preserve evidence when its true nature,

whether exculpatory, inculpatory, or neutral, can never be determined.

Ferguson, 2 S.W.3d at 915, 917.

Although difficult to define, the State’s duty to preserve evidence is

limited to constitutionally material evidence described as “evidence that might

be expected to play a significant role in the suspect’s defense.” Ferguson, 2

S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct.

2528, 81 L. Ed. 2d 413 (1984)). To meet this materiality standard, we held

that 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. 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. Ferguson, 2 S.W.3d at 917.

Merriman, 410 S.W.3d 785 (footnote omitted).

The Merriman Court explained that if the proof demonstrates the existence of a duty

to preserve the evidence and demonstrates that the State failed in that duty, “the analysis

moves to considerations of several factors which guide the decision regarding the

consequences of the breach.” Id. Those factors include: “(1) The degree of negligence

28

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. at 785 (citing

Ferguson, 2 S.W.3d at 917). “If, after considering all the factors, the trial judge concludes

that a trial without the missing evidence would not be fundamentally fair, then the trial court

may dismiss the charges.” Id. 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. Id.

When the trial court in this case denied the Defendant’s motion to dismiss, it found:

The [D]efendant asserts the Court should dismiss the indictment because the

biological evidence collected from the alleged victim in the form of a “rape

kit” was destroyed as a part of police procedure. The [D]efendant also

supplemented the motion to assert the state’s destruction of evidence violated

his right to have exculpatory evidence produced.

The first step for the court is to determine whether there was a duty to

preserve the evidence. . . . In this case, the Court finds the State’s duty to

preserve the evidence collected in the investigation in this case was not

binding for perpetuity. There is no assertion that this evidence was not

available to the [D]efendant prior to the entry of his guilty plea. At the time

of the destruction of the evidence, the [D]efendant had already admitted his

guilt by entering a guilty plea to the charges and his post-conviction petition

had been affirmed on appeal and permission to appeal to the Tennessee State

Supreme Court was denied. The [D]efendant entered his guilty plea in 1995

and the evidence was destroyed following a court order in 2000. The

[D]efendant was not working in preparation of his defense at that time. Unlike

cases in which the trial courts have dismissed the case based upon the State’s

failure to comply with discovery requirements pursuant to Rule 16, in this

case, the State’s alleged breach of duty in preserving evidence did not arise

until five years after the [D]efendant had entered a guilty plea in this case. See

State v. Angela M. Merriman, No. M2011-01682-CCA-R3-CD (Tenn. Crim.

App. Feb. 17, 2012).

Notwithstanding the finding, the Court further finds that even if there

had been a duty to preserve, under the balancing test provided [in] State v.

29

Ferguson, 2 S.W.3d 912 (Tenn. 1999), the Court finds that the [D]efendant

will not be denied a fundamentally fair trial without the evidence. Ferguson

provides that the Court should consider the following factors in making that

determination: (1) the degree of negligence involved, (2) the significance of

the destroyed evidence, considered in the 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.

at 917.

In this case, the Court finds there was no negligence on the part of the

State. The Court finds that though there is no exact limit on how long

evidence should be preserved, that keeping evidence for five years after the

entry of a guilty plea and following the affirmation of the judgments by the

State’s highest court, was sufficient in this case.

For the second factor, obviously the destroyed evidence is significant,

however, there is no proof that it would have been exculpatory or conclusive

evidence.

The State submitted for the Court’s consideration the deposition

testimony of the investigating detective taken April 5, 2012 and had the Court

consider prior testimony that had been given at a bond hearing which included

the [D]efendant’s statements to the police following his arrest in which he

makes admission about the crimes. Furthermore, the victim in the case has

provided deposition testimony regarding the alleged crimes should she be

unavailable for trial and is able to identify the [D]efendant. The State asserts

that in addition to that evidence, the [D]efendant was found with the victim’s

car keys, her vehicle was in front of the house in which he was found, and a

fingerprint of his was located inside the vehicle. The Court finds that there is

sufficient other evidence linking this [D]efendant to these allegations available

for trial beyond the destroyed rape kit.

We agree with the trial court that this case presents a factually unique set of

circumstances. The Defendant pled guilty in 1995, he filed a petition for post-conviction

relief which the post-conviction court denied, this Court affirmed, and the Tennessee

Supreme Court affirmed in 1999. Shortly thereafter, in 2000, the rape kit was destroyed as

part of a routine cleaning of files. Subsequently, the Defendant filed several more post-

conviction petitions and a petition for habeas corpus relief, which was ultimately successful.

Under these circumstances, we agree with the trial court that the State did not have a duty to

preserve this evidence.

30

Were we to conclude otherwise, we would then have to engage in an analysis of the

aforementioned factors to determine the consequence of the State’s breach of its duty.

Nevertheless, looking to those factors, we first conclude that the State was not negligent in

destroying the evidence. The Defendant pled guilty, his case was affirmed on post-

conviction, and State sought a court order approving of the evidence’s destruction, which a

trial court signed before the State destroyed the evidence. The second factor, addressing the

significance of the destroyed evidence, weighs in favor of the Defendant. This evidence

would clearly be significant. The third factor, the sufficiency of the other evidence

supporting the conviction, strongly weighs in favor of the State. The Defendant was found

in a house where the victim’s car was parked, and his fingerprints were on the car, the trunk,

and the weapon. The victim identified the Defendant in a photographic lineup as the rapist,

and the Defendant confessed to the crime on multiple occasions to multiple officers after

being given his Miranda warnings. There was, therefore, sufficient other evidence

supporting his conviction. Accordingly, we conclude that the trial court did not err when it

denied the Defendant’s motion to dismiss this case, and he is not entitled to relief on this

issue.

3. DNA Issue

The Defendant contends that the trial court erred when it ruled that, if the Defendant

presented evidence that the DNA evidence had not been tested, then the State would be

allowed to present evidence that the Defendant had previously pled guilty in this case. The

State counters that the trial court properly exercised its discretion when it ruled that the

arguments concerning the lack of DNA testing were not relevant, were misleading, and were

unfairly prejudicial to the State if evidence of the Defendant’s guilty plea was inadmissible

to explain why the State never tested the DNA.

The trial court excluded this information as not relevant pursuant to Tennessee Rule

of Evidence 401 and as misleading pursuant to Tennessee Rule of Evidence 403.

Exclusions of evidence may violate the Due Process Clause of the Fourteenth

Amendment of the United States Constitution even if the exclusions comply with rules of

evidence. State v. Flood, 219 S.W.3d 307, 316-17 (Tenn. 2007). Principles of due process

require that a defendant in a criminal trial have the right to present a defense and to offer

testimony. See Chambers v. Mississippi, 410 U.S. 284 (1973); State v. Brown, 29 S.W.3d

427, 431 (Tenn. 2000). In Washington v. Texas, 388 U.S. 14 (1967), the United States

Supreme Court stated:

The right to offer the testimony of witnesses, and to compel their attendance,

if necessary, is in plain terms the right to present a defense, the right to present

31

the defendant’s version of the facts as well as the prosecution’s to the jury so

it may decide where the truth lies. Just as an accused has the right to confront

the prosecution’s witnesses for the purpose of challenging their testimony, he

has the right to present his own witnesses to establish a defense. This right is

a fundamental element of due process of law.

388 U.S. at 19.

The right to offer testimony, however, is not absolute: “In 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. Rules of procedure and evidence are designed

to assure fairness and reliability in the criminal trial process. Id. 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 317 (citations omitted). Because “state and federal

rulemakers have broad latitude under the Constitution to establish rules excluding evidence

from criminal trials,” Scheffer, 523 U.S. at 308, “[a]n evidentiary ruling ordinarily does not

rise to the level of a constitutional violation.” State v. Rice, 184 S.W.3d 646, 673

(Tenn.2006).

Initial questions of admissibility of evidence are governed by Tennessee Rules of

Evidence 401 and 403. These rules require that the trial court must first determine whether

the proffered evidence is relevant. Pursuant to Rule 401, evidence is deemed relevant if it

has “‘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.’” See State v. Forbes, 918 S.W.2d 431, 449 (quoting Tenn. R. Evid. 401). In other

words, “evidence is relevant if it helps the trier of fact resolve an issue of fact.” Neil P.

Cohen, et al., Tennessee Law of Evidence § 4.01[4], at 4-8 (4th ed. 2000). After the trial

court finds that the proffered evidence is relevant, it then weighs the probative value of that

evidence against the risk that the evidence will unfairly prejudice the trial. State v. James,

81 S.W.3d 751, 757 (Tenn. 2002). If the court finds that the probative value is substantially

outweighed by its prejudicial effect, the evidence may be excluded. Tenn. R. Evid. 403.

“‘[E]xcluding relevant evidence under [Tennessee Rule of Evidence 403] is an extraordinary

remedy that should be used sparingly and persons seeking to exclude otherwise admissible

and relevant evidence have a significant burden of persuasion.” James, 81 S.W.3d at 757-58

(quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999) (citations

omitted)).

We first turn to decide whether the evidence that there was no DNA testing of the

“rape kit” is relevant. The trial court held that this evidence was not relevant, given the

32

reason for the lack of DNA testing. The Defendant confessed to the crimes upon arrest

shortly after he committed the crimes. Despite the wealth of evidence against the Defendant,

law enforcement officers still brought the victim to the hospital for a medical examination,

that included a “rape kit.” When the Defendant pled guilty, however, the State had no reason

to further use State resources to test the DNA evidence in the kit. Ultimately, that kit was

destroyed. We conclude that the trial court did not abuse its discretion when it determined

that evidence that the State failed to test the DNA evidence was not relevant. Even were we

to conclude otherwise, we agree with the trial court that the evidence, presented alone, would

be misleading.

Even if the evidence meets the test of relevance, however, Tennessee Rule of

Evidence 403 may still justify exclusion of such evidence. Under Rule 403, relevant

evidence “may be excluded if its 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.” We agree with

the trial court that “to specifically allow the questioning concerning the lack of DNA testing

when we all know . . . why there was not DNA testing would be extremely misleading and

confusing to the jury.” Accordingly, the trial court properly excluded this evidence. The

Defendant is not entitled to relief on this issue.

4. Sufficiency of Evidence

The Defendant contends that the evidence is insufficient to sustain his conviction for

two counts of aggravated rape in Counts 6 and 7 because the State did not prove that he was

armed with a weapon or anything the victim reasonable believed was a weapon. The

Defendant contends that, while the victim testified that she saw the weapon during the first

series of rapes, she said that she “never saw a weapon during the incidents that formed the

basis for the [aggravated rape] convictions in [C]ounts 6 and 7,” i.e., the second set of rapes.

The State counters that, viewed in the light most favorable to the State, a reasonable juror

could conclude that the Defendant was armed with a weapon or an item used to lead the

victim to reasonably believe it was a weapon during the commission of the offenses in

Counts 6 and 7.

When an accused challenges the sufficiency of the evidence, this Court’s standard of

review is whether, after considering the evidence in the light most favorable to the State,

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.

13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d

247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence. State

33

v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct

evidence, a criminal offense may be established exclusively by circumstantial evidence.

Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given

to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the

extent to which the circumstances are consistent with guilt and inconsistent with innocence,

are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)

(citations omitted). “The standard of review [for sufficiency of the evidence] is the same

whether the conviction is based upon direct or circumstantial evidence.” State v. Dorantes,

331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

In determining the sufficiency of the evidence, this Court should not re-weigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Nor may this Court substitute its inferences for those drawn by the trier of fact from the

evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d

856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight

and value of the evidence, as well as all factual issues raised by the evidence are resolved by

the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at

859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the theory of the State.” State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.

1973). The Tennessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523

(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view

of the evidence contained in the record, as well as all reasonable inferences which may be

drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d

274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the

presumption of innocence and raises a presumption of guilt, the convicted criminal defendant

bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

34

Aggravated rape “is the unlawful sexual penetration of a victim by the defendant or

the defendant by a victim accompanied by . . . [f]orce or coercion . . . and the defendant is

armed with a weapon or any article used or fashioned in a manner to lead the victim

reasonably to believe it to be a weapon . . . .” T.C.A. § 39-13-502. Sexual penetration is

defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,

however slight, of any part of a person’s body or of any object into the genital or anal

opening of the victim’s, the defendant’s, or any other person’s body, but emission of semen

is not required[.]” T.C.A. § 39-13-501(7). Coercion “means a threat, however

communicated, to[ ] . . . commit any offense[,]” and force “means compulsion by the use of

physical power or violence.” T.C.A. § 39-11-106(a)(3)(A), (a)(12).

The aggravated rape charges in Counts 6 and 7 were based upon the events that

occurred when the Defendant parked behind a brick building and, for the second time, forced

the victim to perform fellatio on him and then vaginally raped her. The evidence, viewed in

the light most favorable to the State, proved that the Defendant, armed with a BB gun that

by all accounts looked like a .45 pistol, approached the victim in her gym parking lot. He

forced her to get into the car, held the gun in his lap, and he informed the victim the gun had

a “hair trigger.” The Defendant took the victim to the Hermitage, held the gun to her head,

and demanded that she perform upon him oral sex. The Defendant then vaginally raped her.

The Defendant forced the victim into the trunk and then drove around for an extended period

of time, stopping behind a brick building. When the Defendant stopped, the victim testified

that she ensured she was facing the opening of the trunk so that it would be more difficult

for the Defendant to shoot her. Instead of shooting her, he got her out of the trunk and again

forced her to engage in oral and vaginal sex. During the duration of her captivity, the

Defendant threatened to shoot and or kill the victim on multiple occasions. When the

Defendant was arrested, the gun was on the front passenger floor board of the victim’s

vehicle.

We conclude that this evidence is sufficient to prove that the Defendant unlawfully

sexually penetrated a victim using force or coercion and while he was armed with a weapon.

The Defendant is not entitled to relief on this issue.

5. Double Jeopardy

The Defendant next asserts that the trial court erred when it allowed separate

convictions for aggravated rape in Counts 3 and 4 and attempted aggravated rape in Count

5 because separate convictions for these offenses violate his protections against double

jeopardy. The Defendant was convicted of two counts of aggravated rape and one count of

attempted aggravated rape for his actions toward the victim while the two were parked at the

Hermitage. The jury convicted the Defendant in Count 3 for aggravated rape by forcing the

35

victim to perform fellatio upon him. The jury convicted the Defendant in Count 4 for

vaginally raping the victim. In Count 5, the jury convicted the Defendant for attempting to

penetrate the victim’s anus with his penis. The Defendant alleges that these were all part of

the same criminal episode, making his multiple convictions in violation of double jeopardy

protections. The State counters that the convictions were based upon separate and distinct

sexual acts and that they did not arise from the same act or transaction. Therefore, the State

contends, double jeopardy is not implicated.

Both the United States and Tennessee Constitutions protect against twice being put

in jeopardy for the same offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. The

double jeopardy clause contains three protections: “It protects against a second prosecution

for the same offense after acquittal. It protects against a second prosecution for the same

offense after conviction. And it protects against multiple punishments for the same offense.”

North Carolina v. Pearce, 395 U.S. 711, 717 (1969); State v. Denton, 938 S.W.2d 373, 378

(Tenn. 1996).

In State v. Watkins, 362 S.W.3d 530, 556 (Tenn. 2012), our Supreme Court laid out

the analysis we are to undertake:

The first step of the Blockburger test is the threshold question of

whether the convictions arise from the same act or transaction. This threshold

question should be answered by reference to the charging instrument and the

relevant statutory provisions. Here it is appropriate to consider whether the

charges arise from discrete acts or involve multiple victims. Thus, what was

formerly the third Denton factor now appropriately has a role to play in the

threshold inquiry. If the convictions do not arise from the same act or

transaction, there cannot be a violation of the double jeopardy protection

against multiple punishment. Thus, a threshold determination that multiple

convictions do not arise from the same act or transaction ends the inquiry and

obviates the need for courts to further analyze double jeopardy claims . . . .

If the threshold is surpassed, meaning the convictions arise from the

same act or transaction, the second step of the Blockburger test requires courts

to examine the statutory elements of the offenses. If the elements of the

offenses are the same, or one offense is a lesser included of the other, then we

will presume that multiple convictions are not intended by the General

Assembly and that multiple convictions violate double jeopardy. However, if

each offense includes an element that the other does not, the statutes do not

define the “same offense” for double jeopardy purposes, and we will presume

that the Legislature intended to permit multiple punishments.

36

Id. at 556-57.

“Multiplicity concerns the division of conduct into discrete offenses, creating several

offenses out of a single offense.” State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996). In

determining whether two or more unlawful sexual acts may be the subject of separate

conviction, our Supreme Court has suggested consideration of the following factors:

1. Temporal proximity-the greater the interval between the acts, the more

likely the acts are separate;

2. Spatial proximity-movement or repositioning tends to suggest separate acts;

3. Occurrence of an intervening event - an interruption tends to suggest

separate acts;

4. Sequence of the acts-serial penetration of different orifices as distinguished

from repeated penetrations of the same orifice tend to suggest separate

offenses; and

5. The defendant’s intent as evidence by conduct and statements.

State v. Barney, 986 S.W.2d 545, 548-49 (Tenn. 1999).

In the case under submission, each count was for a series of penetrations of different

orifices. To support Count 3, the proof showed the Defendant, after driving to the Hermitage

and parking the car, unzipped his pants and pulled them down. He placed the gun to the

victim’s head and pulled her head toward his penis and then penetrated her mouth with his

penis. The proof supporting Count 4 showed that, after the fellatio occurred, the Defendant

told the victim to get out of the car and take her pants off. He bent the victim over the hood

of the car, and he attempted to perform anal sex upon her. The victim said she clamped

down the muscles of her rectum so that the Defendant would be unable to penetrate her. He

spit on her back and used it for lubrication and repeatedly attempted anal sex but was unable

to penetrate her successfully. The proof supporting Count 5 showed that, after the attempted

anal sex, the Defendant forced the victim into the backseat of the car, where she laid face

down. The Defendant then vaginally penetrated her while he was behind her.

These three acts were separate and distinct acts. The acts were separated by time and

location, each occurring in a separate part of the car. The Defendant penetrated the victim

in three different orifices. Accordingly, we conclude that these acts did not arise from the

same transaction. Our inquiry need not go further as double jeopardy is not implicated. The

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Defendant is not entitled to relief on this issue.

6. Sentencing

The Defendant contends that the trial court erred when it sentenced him in two

respects. First, he asserts the trial court erred when it ordered partial consecutive sentencing

because the length of his effective sentence was not necessary to protect the public. Second,

he asserts that the trial court erred when it ordered him to serve his sentence for especially

aggravated kidnapping at 100 percent. The Defendant asserts that he committed his offense

on March 15, 1995, and that such a release eligibility percentage is not authorized for

offenses committed before July 1, 1995. The State concedes the error, and it asks this Court

to modify the Defendant’s sentence for especially aggravated kidnapping to reflect a release

eligibility of 30 percent. The State asks this Court to affirm the trial court’s sentencing

decision for the Defendant’s remaining convictions.

a. Consecutive Sentencing

The trial court in this case sentenced the Defendant to serve twenty years for: Count

1, especially aggravated kidnapping, and twenty years for each of the aggravated rape

convictions in Counts 3, 4, 6, and 7. The trial court imposed a sentence of ten years in Count

2, aggravated robbery, and Count 5, attempted aggravated rape. The trial court found that

the Defendant was a “dangerous offender” and imposed partial consecutive sentences. It

ordered that the Defendant’s sentences for Counts 1, 3, 4 and 5 be served consecutively. The

trial court ordered Counts 2, 6 and 7 to run concurrently with the sentences in Counts 1, 3,

and 4, for a total effective sentence of 70 years.

The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe

the process for determining the appropriate length of a defendant’s sentence. Under the Act,

a trial court may impose a sentence within the applicable range as long as the imposed

sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)

(2010); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).

In State v. Bise, the Tennessee Supreme Court announced that “sentences imposed by

the trial court within the appropriate statutory range are to be reviewed under an abuse of

discretion standard with a ‘presumption of reasonableness.” 380 S.W.3d 682, 708 (Tenn.

2012). A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning

was improper when viewed in light of the factual circumstances and relevant legal principles

involved in a particular case.” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting

State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record

must be void of any substantial evidence that would support the trial court’s decision. Id.;

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State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398

(Tenn. Crim. App. 1980). The reviewing court should uphold the sentence “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.” Bise, 380 S.W.3d at 709-10.

In other words, so long as the trial court sentences within the appropriate range and properly

applies the purposes and principles of the Sentencing Act, its decision will be granted a

presumption of reasonableness. Id. at 707. Further, we review a trial court’s decision to

impose consecutive sentences for an abuse of discretion with a presumption of

reasonableness. State v. James Allen Pollard, –S.W.3d–, No. M2011-0032-SC-R11-CD

(Tenn. Dec. 20, 2013).

Consecutive sentencing is a matter addressed to the sound discretion of the trial court.

State v. James, 688 S.W.2d 463, 465 (Tenn.Crim.App.1984). A trial court may order

multiple sentences to run consecutively if it finds, by a preponderance of the evidence, that

at least one of the seven statutory factors exists. T.C.A. § 40-35-115(b)(1)-(7) (2010). In

addition to these criteria, consecutive sentencing is subject to the general sentencing principle

that the length of a sentence should be “justly deserved in relation to the seriousness of the

offense” and “no greater than that deserved for the offense committed.” T.C.A. § 40-35-

102(1), -103(2) (2010); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

In this case, the trial court found, “[t]he [D]efendant is a dangerous offender whose

behavior indicates little or no regard for human life, and no hesitation about committing a

crime in which the risk to human life is high.” T.C.A. § 40-35-115(4) (2010). Our Supreme

Court has noted that the “dangerous offender” category is the hardest and most subjective to

apply. State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999). Consequently, our Supreme Court

in State v. Wilkerson held that “particular facts” must show the following in order to base

consecutive sentencing on subsection 115(b)(4): (1) that an extended sentence is necessary

to protect the public against further criminal conduct by the defendant; and (2) that the

consecutive sentences reasonably relate to the severity of the offenses committed. 905

S.W.2d 933, 938-39 (Tenn. 1995); see State v. Robinson, 146 S.W.3d 469, 524 (Tenn. 2004).

Further, Wilkerson instructs that the “dangerous offender” category should only be imposed

if four factors are satisfied: (1) the defendant’s behavior indicated little or no regard for

human life; (2) he did not hesitate to act when the risk to human life was high; (3) extended

confinement is necessary to protect society; and (4) the total length of the sentence must

reasonably relate to the conviction offenses. State v. Imfeld, 70 S.W.3d 698, 708

(Tenn.2002); Wilkerson, 905 S.W.2d at 939.

When the trial court in this case found that the Defendant qualified as a “dangerous

offender” it stated:

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Why is that: Well, I’ve already mentioned some of that, but obviously these

were, under our law, and we can deal with this later as well. But in the Court’s

opinion, separate and distinct sexual acts at different times during the course

of the night and early morning hours, different physical locations, in terms of

street locations, different locations within the car, outside the car and/or

different various parts of [the victim’s] body, as I’ve already indicated, were

invaded, I guess, by [the Defendant].

I mean, to [m]e, without getting to blunt here, I mean things that were

done to [the victim], most of society wouldn’t do to an animal. I mean, most

people wouldn’t take their dog and shove it in the trunk for hours at a time, or

obviously don’t want to get too far afield here, but other things that were done

to [the victim] would not be done to anything else, much less another human

being.

So the Court does find that consecutive sentencing is required in this

particular case, under the Wilkerson factors, State versus Wilkerson, in terms

of an aggregate term of sentence reflecting the severity of the offenses, in

order that [the Defendant] not be out an [sic] inflicting this type of serious

criminal conduct on anyone else.

Yes, as I’ve already indicated, he was youthful, but there are some

crimes, and these occurred, as I’ve already indicated, over a long period of

time. [The victim] in her trunk, with being a diabetic, her words were stifling,

in terms of being able to breathe, threatened multiple times with a weapon to

her head. I mean, you could go on and on, just recount all of [the victim’s]

testimony, basically.

And . . . What is [the Defendant], what is his judgment in terms of what

should occur, goes to his girlfriend’s house and does whatever, and falls

asleep, and is apprehended by the police. Well, what happened to [the

victim]? Well, I don’t know, I don’t care. Well, luckily she was able to get

herself out of the trunk and notify law enforcement. So obviously in the

Court’s opinion consecutive sentencing is appropriate.

We conclude that the trial court did not err when it ordered partial consecutive

sentencing. The trial court considered and articulated how the Defendant’s actions satisfied

each of the Wilkerson factors. The court’s findings were not an abuse of its discretion. The

Defendant is not entitled to relief on this issue.

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b. Especially Aggravated Kidnapping Sentence

The Defendant next asserts the trial court erred when it ordered him to serve his

sentence for Count 1 especially aggravated kidnapping at 100 percent. The Defendant

committed his offense on March 15, 1995. Tennessee Code Annotated section 40-35-

501(i)(1), states that a defendant that commits especially aggravated kidnapping on or after

July 1, 1995, shall not have any release eligibility and shall serve 100 percent of the sentence

imposed by the court. Because the Defendant’s crime occurred before the July 1, 1995, date,

the trial court was not authorized by statute to impose a release percentage of 100 percent.

Accordingly, the Defendant’s sentence for especially aggravated kidnapping should

be modified to reflect a release eligibility of 30 percent. We note that the Defendant’s

sentences in Counts 3, 4, 6, and 7 are still to be served at 100 percent, and the Defendant’s

total effective sentence is still seventy years.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the trial

court’s judgments in all respects save one. The trial court’s judgment in Count 1, especially

aggravated kidnapping, should be modified to reflect a release eligibility date of 30 percent,

and we remand to the trial court for the entry of a modified judgment in Count 1.

________________________________

ROBERT W. WEDEMEYER, JUDGE

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