State of Tennessee v. Devontavious Bryant

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 29, 2016 Session

STATE OF TENNESSEE v. DEVONTAVIOUS BRYANT

Appeal from the Criminal Court for Hamilton County

No. 286590 Don W. Poole, Judge

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No. E2015-01187-CCA-R3-CD – Filed September 21, 2016

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The Defendant, Devontavious Bryant, along with co-defendant Deacon Williams, was

indicted with one count of aggravated rape, one count of aggravated robbery, and one

count of aggravated assault. Prior to trial, the State amended the aggravated robbery

charge to robbery and dismissed the aggravated assault charge. The Defendant was tried

separately from Mr. Williams and convicted of aggravated rape and robbery. On appeal,

the Defendant argues that: (1) the evidence collected from a warrantless search of his

bedroom should have been suppressed; (2) the video recording of the victim‟s statement

given minutes after the offense should have been suppressed under Tennessee Rule of

Evidence 403; and (3) there was insufficient evidence to support his conviction for

aggravated rape because his DNA was not found at the scene. Discerning no error, we

affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.

Joshua P. Weiss, Chattanooga, Tennessee, for the appellant, Devontavious Bryant.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;

Neal Pinkston, District Attorney General; and Cameron Williams, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

Motion to Suppress Video of the Victim’s Statement

Prior to trial, the State filed a motion in limine requesting that the trial court rule

on the admissibility of video recorded statements made by the victim1 in a police car

immediately after the alleged offense. The State averred that the video statement was

admissible under the excited utterance exception to the hearsay rule.

Chattanooga Police Department (“CPD”) Officer Daryl Slaughter testified that,

around 6:15 a.m. on October 12, 2012, he was dispatched to investigate an alleged rape.

He recalled that the victim had waved down a motorist near the scene of the incident and

that the motorist had taken her to PSC Metals and called 911. Officer Slaughter met the

victim and the motorist at PSC Metals, and the victim spoke with Officer Slaughter.

Officer Slaughter recalled that victim “was terrified, crying, couldn‟t make out a

complete sentence, just really tore up. You could tell she had been through something

pretty traumatic.” The victim told Officer Slaughter that she had been raped by two

males near Finley Stadium and that it had “just happened.” Officer Slaughter stated that

his patrol vehicle was equipped with a video camera and that he had activated it during

his conversation with the victim.

The State played a forty-seven minute video of Officer Slaughter‟s conversation

with the victim. The video showed the victim speaking with Officer Slaughter in front of

his vehicle. She was sobbing and had difficulty speaking as she described the rape. She

stated that she was running near the stadium when she saw a bicycle roll by her. Then

someone grabbed her from behind and demanded her cell phone. She informed the

person that she did not have a cell phone, and he said, “[G]ive me everything you

have[,]” so she gave him her MP3 player. After that, the victim “thought they left.”

Then, the victim recalled that “the other one grabbed [her] and [she] passed out.” She

also stated that one the assailants threw her to the ground and demanded that she “either

had to suck his c—k or take off [her] pants.” The victim reported that she “just laid

there” and that the two assailants took off her pants and her shoes and then raped her.

She stated that the man in a dark hoodie raped her first then a man in the yellow hoodie

raped her. The victim recalled that the man in the yellow hoodie had a knife.

After the victim described the rape, Officer Slaughter allowed her to sit in the back

of his patrol car while he spoke to the motorist. The video showed the victim sobbing

and having difficulty breathing while seated in the back seat of the patrol car. The victim

1

Pursuant to this Court‟s policy, victims of sexual offenses are not identified by their names.

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then agreed to take Officer Slaughter back to the scene of the rape, and she continued to

sob as she directed the officer to the scene. When they arrived at the scene, the victim

showed Officer Slaughter where the attack took place, all while crying. Later, the victim

said that there were other people in the area who might have seen the assailants. The

victim then sat in the back of Officer Slaughter‟s car while he spoke with other officers,

and she continued to cry and breathe heavily. Then, at Officer Slaughter‟s request, the

victim walked through the crime scene with officers and described where the assault and

rape took place. She said she first saw the assailants as she ran by the In and Out Café;

they were standing by their bicycles near the newspaper stand. She described the

assailants as two “young African-American men,” one of which was wearing a yellow

shirt and had an Afro, “but it was more like dreads.” She stated that, after they took her

MP3 player, she turned to leave, but one of the assailants grabbed her by the neck, and

she passed out. When she regained consciousness, she was on the ground and could not

breathe. She started to scream, but one of the assailants said, “[I]f you don‟t stop

screaming, I‟m going to break your face.” While describing the rape, the victim began to

cry.

Officer Slaughter then allowed the victim to call her husband. While speaking on

the phone, the victim again began to sob and have difficulty breathing. She eventually

calmed down, but she continued to cry. Officer Slaughter then transported the victim to

the Rape Crisis Clinic, and while they were driving, the victim showed Officer Slaughter

where she first saw the assailants.

The Defendant argued that, if the court allowed the video to be introduced, then

“the video itself would be inappropriate” and that “a transcript of the video would be []

most appropriate in this situation.” The trial court ruled that the video was an out-of-

court statement but that it fell within the excited utterance exception to the hearsay rule

and therefore was admissible.

The next day, the Defendant filed a motion in limine arguing that the video should

be excluded under Tennessee Rule of Evidence 403. The Defendant contended that the

video “portray[ed] [the victim] crying and hyperventilating” and that “it serve[d] no other

purpose but to inflame the jury.” The Defendant asserted that the probative value of the

video was substantially outweighed by the danger of unfair prejudice, and he suggested

that a transcript of the video be introduced in order to “avoid the prejudicial nature of the

video.” At a hearing on the motion, the State argued that the video was “highly

probative” and that the victim‟s emotional state on the video did not substantially

outweigh the video‟s probative value.

The trial court stated that the transcript of the video would only be given to the

jury “to help them understand what may or may not be on the video.” The trial court held

that the video was the evidence and noted that it would instruct the jury “that if the[ir]

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listening or determination of what they heard on that video is different than what‟s

transcribed, then they should follow what they listen [to] or hear.” The trial court

concluded that the video was admissible under Tennessee Rule of Evidence 403.

Motion to Suppress Evidence from the Defendant’s Bedroom

The Defendant filed a motion to suppress evidence found in his bedroom, alleging

that the search violated his Fourth Amendment rights against unreasonable search and

seizure.

CPD Sergeant Daniel Francis testified that, in October 2012, he was notified that a

rape had taken place near the football stadium in Chattanooga. Sergeant Francis spoke

with the victim and learned that she was jogging and was attacked by two black males,

one with a “lighter-colored jacket” and one with a “darker-colored jacket.” The assailant

wearing the lighter-colored jacket also had “a very large [A]fro,” which might have been

a wig. Sergeant Francis sent the victim‟s description of her assailants to the entire police

department, and the next day, other officers informed Sergeant Francis that they had seen

two people matching that description in the City Café just prior to when the attack took

place. Sergeant Francis obtained security video from the City Café showing two people

matching the description given by the victim sitting at a table. That video was released to

the news media.

About a week later, the mother of Vontrell Haddox called police to inform them

that she had seen her son wearing the yellow jacket that was in the video released to the

news media. Sergeant Francis then went to speak with Mr. Haddox. Initially, Mr.

Haddox claimed that “somebody just randomly traded him the jacket on the street[.]”

However, Mr. Haddox later admitted that he had “traded a gray jacket to [the Defendant]

for the yellow jacket[.]”

On October 24, 2012, Sergeant Francis and Officer Gary Williams2 went to the

Defendant‟s home and knocked on the door. Initially, a female opened the back door and

told Sergeant Francis that the Defendant did not live there. However, a neighbor

informed them that the Defendant was inside the residence and that the person who came

to the back door was lying. Sergeant Francis remained at the back door while Officer

Williams knocked on the front door “for about ten more minutes” before the Defendant

opened the front door. Officer Williams confirmed the Defendant‟s identity and asked if

police could talk to him. The Defendant said, “No,” and he “tried to slam the door on

[Officer Williams.]” However, the Defendant was unable to close the door because

2

In his testimony from the suppression hearing, Sergeant Francis said he was accompanied by

“Officer Aaron Williams” to the Defendant‟s residence. However, from the rest of the record, it is clear

that the officer‟s first name is Gary.

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Officer Williams had placed his foot in the door. Officer Williams then “immediately”

placed the Defendant under arrest. Sergeant Francis could hear yelling, so he came to the

front door. The Defendant‟s mother, Lisa Bryant, came downstairs and asked what was

going on. Sergeant Francis informed her that the Defendant was under arrest for rape,

and Ms. Bryant responded, “Well, last time that happened, they brought him back the

same day.” Sergeant Francis then transported the Defendant to the police station to be

interviewed. Sergeant Francis confirmed that he did not have an arrest warrant or a

search warrant when he went to the Defendant‟s residence. Sergeant Francis denied

going into the Defendant‟s bedroom when he was arrested, but he did not know whether

Officer Williams went into the Defendant‟s bedroom at that time.

The next day, Sergeant Francis returned, with one other officer, to the Defendant‟s

home to talk to Ms. Bryant “to see if [he] could get a consent to search signed[.]”

Sergeant Francis confirmed that he did not have a search warrant. Ms. Bryant was home

with one of her other sons. Ms. Bryant informed Sergeant Francis that she lived in the

residence and that the Defendant did not always stay with her and often stayed with

friends. On nights when he did stay with Ms. Bryant, the Defendant slept in a bedroom

with his brother. Sergeant Francis gave Ms. Bryant a consent to search form, and he

explained the form in detail. Sergeant Francis denied threatening, coercing, or making

any promises to Ms. Bryant. Ms. Bryant signed the form. Ms. Bryant led the officers to

the Defendant‟s bedroom. Sergeant Francis recalled that the bedroom door was

unlocked, and he stated that he believed Ms. Bryant had the authority to consent to a

search of the bedroom because her name was on the lease. Sergeant Francis found two

condom wrappers in the bedroom the Defendant shared with his brother. Those condom

wrappers matched one of the brands of condom wrappers found at the scene. He also

found a used condom in the trash can.

Lisa Bryant testified that she was the Defendant‟s mother. On the day he was

arrested, Ms. Bryant was awakened by a scream. When Ms. Bryant came downstairs, she

saw that the Defendant was being arrested. Ms. Bryant also observed an officer come out

of the Defendant‟s bedroom upstairs. Ms. Bryant stated that she had not consented to a

search at that time. The next day, officers returned to Ms. Bryant‟s home and showed her

a consent to search form. Ms. Bryant admitted that she signed the document, but she said

that she thought she was signing a consent form to allow the officers to come into her

house and “look around,” not to search the house. She claimed that the officers did not

read the consent form to her or tell her that she did not have to sign it. However, Ms.

Bryant also stated that she was not coerced and that she did not feel like she had to sign

the form. Also, Ms. Bryant stated that she went into the Defendant‟s bedroom “all the

time.” She noted that the Defendant stayed with her “[p]robably every other night.” Ms.

Bryant admitted that she did not tell officers there was a portion of the residence that they

could not search. Ms. Bryant confirmed that she could read and write.

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The trial court found that the Defendant‟s warrantless arrest inside his residence

did not fall within one of the exceptions to the warrant requirement. However, regarding

the search, the trial court found that Ms. Bryant had given voluntary consent for the

police to search her residence. Specifically, the court noted that Ms. Bryant testified that

she was aware that the officers would come in and “look around” and that she signed a

consent form allowing them to do so. Furthermore, the trial court noted that Ms. Bryant

did not object to officers searching any room in her home. Additionally, the trial court

found that Ms. Bryant‟s consent “was sufficiently attenuated from the previous day‟s

unconstitutional entry.” Therefore, the Defendant‟s motion to suppress the evidence

found in his bedroom was denied.

Trial

The victim testified that, on October 12, 2012, she dropped off her belongings at a

gym between 5:30 and 6:00 a.m. and went for a run in downtown Chattanooga. She was

carrying an MP3 player and “a little baggie with gum in it.” Her running route took her

toward the First Tennessee Pavilion. As she was running, she saw two black men on

bicycles near the In and Out Café on Chestnut Street. One was wearing a gray hoodie

and the other was wearing a yellow hoodie and had a “really big [A]fro[.]” The victim

continued to run toward First Tennessee Pavilion and Finley Stadium. When she reached

Reggie White Boulevard, she saw a bicycle roll past her without a rider, and then

someone grabbed her around the neck. The person demanded her phone and money, but

she told them she was not carrying either. The person then asked what she was listening

to, and the victim responded an MP3 player. The person said, “[G]ive me that,” and the

victim handed the MP3 player to the assailant. When she handed over the MP3 player,

she saw that the assailant had black skin and was wearing a gray top. At that point, the

victim saw the person with an Afro hairstyle and wearing the yellow hoodie approach.

The victim identified the Defendant as the person with the Afro and wearing the yellow

hoodie.

After she handed over her MP3 player, the victim turned to go back to the gym.

However, the Defendant grabbed the victim around the throat and picked her up off the

ground, causing her to pass out. When the victim regained consciousness, she was on an

embankment. The person in the gray hoodie asked her “what [she] was going to do, what

[she] would do for [her] life.” The Defendant told her that he had a knife and that he

“was going to break [her] face if [she] would scream.” The person in the gray hoodie

gave the victim the choice of either performing fellatio or taking off her pants. The

victim tried to get away, but the person in the gray hoodie took off her pants. He raped

her first, followed by the Defendant. The victim testified that neither individual‟s penis

was fully erect, but she stated that both of them penetrated her. After they finished, they

left. The victim “sat there for a second[,]” put her clothes back on, and then ran toward

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the First Tennessee Pavilion to find help. The victim stopped the first car she saw. The

driver drove her to PSC Metals, called 911, and stayed with her until the police arrived.

The victim stated that she identified the Defendant in a photo lineup

approximately one week after the offense. She said she did not know the Defendant and

had not seen him on the news. The victim identified a photo of a plastic bag from the

crime scene as the bag she was carrying with gum. The victim said the phone found at

the crime scene did not belong to her.

On cross-examination, the victim said she did not get a good look at the face of the

person in the gray hoodie because his hood was covering his face. However, she was

able to see the Defendant‟s face because his hair prevented him from pulling his hood

over his face. The victim said she did not see any condoms, but she recalled the

Defendant ripping something that was approximately the size and shape of a condom

wrapper. The victim said she never saw a knife.

Jeffrey Brown testified that he was on his way to work on the morning of October

12, 2012, when the victim “flagged [him] down” and told him that she had been raped.

Mr. Brown took the victim to a well-lit area in the PSC Metals parking lot, called 911,

and waited with her until the police arrived. Mr. Brown recalled that the victim was

crying, shaking, and breathing hard. The victim informed Mr. Brown that the rape had

just occurred. The 911 call was played for the jury, and in that recording, the victim

described her assailants as two young, black males, stating that one was wearing a yellow

hoodie and had dread locks and the second assailant was wearing a dark-colored hoodie.

Mr. Brown also reported that the victim told him that the assailants said that they had a

knife. On cross-examination, Mr. Brown stated that it did not appear that the victim had

been physically beaten.

CPD Officer Daryl Slaughter testified that he responded to PSC Metals. There, he

spoke with the Mr. Brown and the victim. Officer Slaughter stated that the victim was

crying, had difficulty breathing, and “appeared to have been traumatized.” The victim

told him that she was running and that she had been raped. Officer Slaughter stated that

his conversation with the victim was recorded by the video recorder in his patrol car.

That video was played for the jury. The jury was also provided a transcript of the video,

but the court instructed the jury that the video itself, not the transcript, was evidence. On

cross-examination, Officer Slaughter agreed that the victim declined calling an

ambulance to take her to the hospital. Officer Slaughter also stated that his primary task

was to take a statement from the victim and transport her to the Rape Crisis Center; he

was not in charge of preserving the crime scene.

Amy Griffin testified that she was the nursing director at the Partnership Rape

Crisis Center and that she conducted a forensic examination of the victim. Ms. Griffin

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recalled that the victim appeared to be very upset. As the victim described the events that

occurred, Ms. Griffin typed her statement. In her statement, the victim said she was

running when she saw two black males standing with their bicycles. The victim

continued her run and saw a bicycle roll past her without a rider. At that point, someone

grabbed her around her neck from behind and demanded her phone and money. The

victim said she did not have either. The assailant then demanded her MP3 player, and the

victim gave it to him. The assailant dropped the MP3 player on the ground, and a second

male wearing a yellow hoodie picked it up, and both males turned as if to leave. As

typed by Ms. Griffin in the “narrative history” portion of the Sexual Assault Examination

Form, which was entered as an exhibit, the victim described what happened next as

follows:

So I turned back around and headed back toward the gym. I thought I had

just been mugged. That‟s when the one in the yellow hoodie came up and

put his arm around my neck and choked me out. Next thing I know when I

woke up, he told me “You‟ve got two choices. You can either take off your

pants or suck my d—k.” I wouldn‟t do it. I just sat there on the ground like

this. ([V]ictim describes holding one knee close to her chest.) I froze. And

then I said “No” and started screaming. I was down an embankment and I

turned and tried to get away. And that‟s when the one in the dark hoodie

pulled me and pulled my pants down and told me to stop screaming. One

of them said, “I have a knife[.”] Then he started trying to have sex with me

from behind, but he couldn‟t. And then he flipped me over. I started

screaming. I saw headlights and screamed. And the one with the yellow

hoodie held his fist up above my head and said[,] “[I]f you don‟t shut up

I‟m going to break your face[.”] And then the other one got up and said[,]

“[I]t‟s your turn[]” to the one in the yellow. And he tried but couldn‟t.

Thank God. They said, “[O]k, we‟ve done it[,]” and they got up on their

bikes and left.

The victim also stated that she saw the person in a yellow hoodie open a wrapper with his

teeth, and she assumed he was opening a condom. Ms. Griffin asked the victim to clarify

if the assailants had penetrated her, and the victim responded, “A little; one of them may

have done more, I don‟t know, I can‟t.” At that point, the victim became upset, and Ms.

Griffin stopped pressing her for more information.

A physical examination of the victim revealed that she had abrasions on her arms.

She also had “debris, it was fragments of blackish/brown, could have been dirt” on the

inside of her thighs, her labia, and “just under the vaginal opening.” The victim also had

two, small lacerations near her vaginal opening. Ms. Griffin stated that the lacerations

were consistent with blunt force trauma and could have been caused by forced

penetration. The internal examination showed that the victim‟s cervix was reddened and

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that there was debris in the vaginal canal near the cervix that appeared to be similar to the

debris found on the victim‟s thighs. Ms. Griffin stated that the victim‟s clothing had dirt

and grass stains on them. The victim was not wearing underwear when she arrived at the

Rape Crisis Clinic. Ms. Griffin also collected swabs for DNA samples.

CPD Officer Kenneth Burnette, Jr., testified that he responded to the crime scene

on the morning of October 12, 2012, and collected a beer bottle, a cell phone, underwear,

a plastic bag that contained gum, and an open Durex condom wrapper. Officer Burnette

also stated that another officer collected an open Lifestyles condom wrapper. Officer

Burnette noted that a plastic bag had been laid over some of the evidence in order to

protect it from the rain. He stated that he would not have laid the plastic over the

evidence because plastic was “not good for the preservation of DNA evidence.” He

explained that plastic allowed moisture to adhere to the evidence, possibly causing the

DNA to break down.

CPD Officer Caleb Brooks testified that he collected an open, green Lifestyles

condom wrapper from an embankment near Finley Stadium. A few days later, Officer

Brooks collected DNA samples from Solomon Pierce, III, Deacon Williams, and the

Defendant. On cross-examination, Officer Brooks said the Defendant was cooperative

when giving a DNA sample.

Mark Hamilton testified that he worked for the CPD and often retrieved video

evidence. In this case, he was asked to retrieve security footage from City Café for the

morning of October 12, 2012. That video showed two black males, one wearing a dark

blue hoodie and the second with an Afro and wearing a yellow hoodie, enter City Café

around 4:40 a.m. to eat some food. The person in the yellow jacket appeared to be taking

photos with a smartphone. They left City Café around 5:00 a.m.

Frank Poland testified that he was the director of technology and security at the

Chattanooga Convention Center, which is located close to Finley Stadium. When Mr.

Poland learned that a rape was alleged to have occurred near that area, he reviewed the

Convention Center‟s security video. Mr. Poland saved the footage from two cameras and

turned them over to the police. Both videos were played for the jury. The first camera

showed a young woman jogging on Carter Street. Approximately twenty seconds later,

the same camera showed two black males on bicycles pass the same area where the lady

was jogging. One cyclist was wearing a dark jacket with its hood up and the second had

an Afro and was wearing a yellow jacket. The second camera showed the same woman

jogging toward Finley Stadium, followed “several seconds afterwards” by two black

males. The bicyclists appeared to be the same two bicyclists depicted in the first video.

Mr. Poland stated that the video was recorded around 5:53 to 5:54 a.m. on October 12,

2012.

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CPD Sergeant Daniel Francis testified that, around 7:00 a.m. on October 12, 2012,

he responded to a report of a rape near Finley Stadium. He spoke with the victim at the

Rape Crisis Center. The victim stated that one attacker was wearing a yellow jacket and

had big hair and that the other was wearing a dark jacket. Sergeant Francis also prepared

a photo lineup to show to the victim. The victim identified the Defendant‟s photo as one

of her assailants.

Sergeant Francis learned that individuals matching the victim‟s description of the

perpetrators had been seen at City Café, and Sergeant Francis directed Mr. Hamilton to

obtain the security footage from City Café. Sergeant Francis also reviewed the video

from the Convention Center, and he noted that the City Café video and the Convention

Center video appear to show the same people. Sergeant Francis noted that he obtained a

DNA sample from Solomon Pierce, III, to eliminate him as a suspect, but he did not

consider him to be a suspect for the rape.

About a week and a half after the offense, Sergeant Francis obtained a yellow

jacket from Vontrell Haddox. Sergeant Francis explained that Mr. Haddox had come

home wearing the jacket, and his mother identified the jacket as the one from the City

Café video, that had been released to the news media, and she called the police. Sergeant

Francis spoke with Mr. Haddox and asked where he had obtained the jacket. Mr. Haddox

told Sergeant Francis that the Defendant “traded him the jacket.” Mr. Haddox said he

showed the Defendant photos from the City Café video, and the Defendant admitted he

was in the photo. Later, the Defendant told Mr. Haddox that he wanted to give Mr.

Haddox the yellow jacket from the video in exchange for Mr. Haddox‟s gray jacket.

Sergeant Francis went to the Defendant‟s residence on October 24, 2012. The

Defendant was transported to the major crimes office, and his statement was taken. The

video-recorded statement was played for the jury. In that statement, the Defendant

admitted that he was the person in the yellow jacket in the video from City Café, but he

denied raping anyone. He said that, after he left City Café, he rode his bicycle directly to

Miracle Brown‟s house.3 He also claimed that he had to go past the Convention Center

in order to get to Miracle‟s house. Sergeant Bryant informed the Defendant that Deacon

Williams claimed that both he and the Defendant attacked the victim, but that the

Defendant was the only one who raped her. The Defendant responded that such account

was not true. When Sergeant Francis asked, “You don‟t think [the victim] saw your

face?” the Defendant responded, “Uh [ ], she might of [ ] well how could she?” Sergeant

Francis asked why there was an hour‟s difference between when the Defendant was at

City Café and when he rode by the Convention Center, but the Defendant could not

explain the time difference. The Defendant agreed to provide a sample of his DNA. The

3

Miracle Brown shares a common surname with Derica Brown, one of the witnesses in this case.

To avoid confusion, we will refer to Miracle by her first name in this opinion. We intend no disrespect.

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Defendant also said he gave the yellow jacket to Mr. Haddox “[c]ause [sic] he wanted to

wear it.”

On cross-examination, Sergeant Francis explained that he instructed patrol officers

to cover evidence found at the crime scene with a plastic bag in order to protect it from

the rain. Sergeant Francis also recalled that the City Café video showed a person wearing

a yellow jacket and what appeared to be a “rather large” Afro wig and a male wearing a

dark-colored jacket. Sergeant Francis also agreed that he could not see individuals‟ faces

on either the City Café or Convention Center videos. However, he assumed the two

videos depicted the same people because the person in the yellow jacket was the taller of

the two in each video. He also noted that the victim reported that the person in the

yellow jacket was the taller of the two assailants.

CPD Investigator William Salyers testified that, on October 25, 2012, he

accompanied Sergeant Francis on a follow-up visit to the Defendant‟s residence as part of

a rape investigation. Investigator Salyers collected two cell phones, two opened Durex

condom wrappers, and a used condom from one of the bedrooms.

Special Agent Keith Proctor of the Tennessee Bureau of Investigation testified that

he tested the buccal swab DNA samples from the victim, the Defendant, Mr. Williams,

and Mr. Pierce against evidence found at the scene, DNA samples collected as part of the

rape kit, and the red condom found in the Defendant‟s bedroom. No semen was found in

samples taken during the rape kit or on the pink panties found at the crime scene. Special

Agent Procter found sperm on the inside of the red condom, and the DNA profile

matched that of the Defendant. However, Special Agent Procter said he did not find the

victim‟s DNA on the outside of the red condom. Special Agent Procter tested the

condom wrappers that were found at the crime scene for DNA evidence, but the tests did

not reveal any human DNA. Special Agent Procter explained that semen may not be

present in a rape kit if there was no ejaculation, the incident did not occur, the semen had

degraded, or a condom was used.

Special Agent Proctor also tested a yellow Adidas jacket and a navy blue

Aeropostale jacket for DNA. Both jackets contained partial DNA profiles for “at least

two individuals, where at least one [was] male.” Deacon Williams was identified as the

“major contributor” for both jackets, and the victim, the Defendant, and Mr. Pierce were

all excluded as potential contributors for the second DNA profile for both jackets.

Special Agent Proctor explained that one would not always expect to find DNA on

clothing. He noted that the DNA in question was “touch DNA,” which was not as strong

as DNA found in bodily fluids such as blood, semen, or saliva. He stated that the

likelihood of obtaining a DNA profile from touch DNA is “much less” and that touch

DNA might not be present if there was a two-week delay between when a person wore an

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item of clothing and when it was tested. Additionally, he said washing an item of

clothing “would definitely affect the amount of DNA that‟s present.”

Derica Brown testified that she knew the Defendant by the name “Skeelo.” Ms.

Brown recalled that she lent the Defendant a cracked, LG smartphone with a pink case in

October 2012. At the time she lent him the phone, the Defendant was wearing a yellow

hoodie, an Afro wig, and blue jeans, and he was with Deacon Williams. The Defendant

told Ms. Brown that he and Mr. Williams intended to go to City Café. She saw the

Defendant the next day and asked for her phone back, but the Defendant said that he lost

the phone when it fell out of a hole in his pocket. Ms. Brown reported that her phone was

never returned to her. Ms. Brown identified the phone found at the crime scene as the

same phone that she lent the Defendant. On cross-examination, Ms. Brown said she was

“[n]ot really” close with either the Defendant or Mr. Williams but that they were friends.

She explained that she lent the Defendant her phone because he wanted to listen to music.

Ms. Brown also reported that the Defendant and Mr. Williams were together when they

returned from their trip to City Café.

The Defendant, who was eighteen years old at the time of the offense, testified

that, on October 12, 2012, he and his co-defendant, Mr. Williams, were at Miracle‟s

house. They had been drinking and were hungry, so they left and went to Mr. Williams‟

house to get the yellow jacket because it was cold and rainy. Mr. Williams was also

wearing a wig because it was “seventies day” at school, and the Defendant “asked to

wear it, just goofing around.” The Defendant and Mr. Williams left on bicycles and rode

to City Café where they “ate some fries, drunk [sic] some drinks, and [they] was [sic] just

chilling, just taking pictures, just laughing and talking.”

After eating, the Defendant and Mr. Williams left to go back to the “west side.”

En route, Mr. Williams told the Defendant that he wanted to listen to a song, so the

Defendant gave the phone to Mr. Williams. Shortly after that, the Defendant and Mr.

Williams parted ways, and the Defendant gave Mr. Williams the yellow jacket and wig

because they did not belong to the Defendant. The Defendant said he forgot to get the

phone back from Mr. Williams. From there, the Defendant went back to Miracle‟s house

and slept. The Defendant saw the yellow jacket the next day being worn by Mr. Haddox.

The Defendant denied telling Ms. Brown that the phone had fallen out of his

pocket. The Defendant said it would take approximately fifteen minutes to get from

Miracle‟s house to City Café via bicycle. The Defendant agreed that one of the condom

wrappers found at the crime scene was the same brand and color as the condom wrappers

found in his bedroom. However, the Defendant stated that everyone, including himself,

got their condoms from the West Side Clinic. The Defendant said he did not rape the

victim.

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On cross-examination, the Defendant said he did not know where the wig or the

MP3 player were. The Defendant said he was not the person captured on video following

the victim on a bicycle while wearing the yellow hoodie and wig. The Defendant said he

returned home “on a bike,” but he also said that he gave Mr. Williams his bicycle when

they parted ways.

The jury convicted the Defendant of aggravated rape and robbery. The trial court

sentenced the Defendant to an effective twenty years‟ incarceration. This timely appeal

followed.

II. Analysis

Evidence Found in Defendant’s Bedroom

On appeal, the Defendant argues that the evidence found in his bedroom should

have been suppressed because the Defendant‟s arrest was an unconstitutional seizure, Ms.

Bryant‟s consent was involuntary, and Ms. Bryant did not have the authority to consent to

a search of the Defendant‟s bedroom.

When reviewing a motion to suppress, this court is bound by the trial court‟s

findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d

18, 23 (Tenn. 1996). Questions of credibility, the weight and value of the evidence, and

resolutions of conflicts in the evidence are resolved by the trial court. Id. The prevailing

party is entitled to the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn therefrom. Id. We review the trial court‟s conclusions of

law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005) (citing State v. Daniel,

12 S.W. 2d 18, 23 (Tenn. 1996)).

Both the United States and Tennessee Constitutions protect citizens from

unreasonable searches and seizures. U.S. Const. amend. IV; Tenn. Const. Art. I, § 7. A

warrantless search or seizure is presumed unreasonable, and the “evidence discovered as

a result thereof is subject to suppression unless the State demonstrates that the search or

seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant

requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge v.

New Hampshire, 403 U.S. 443, 454-55 (1971)). Exceptions to the warrant requirement

include consent to search, search incident to a lawful arrest, evidence in plain view,

searches and seizures conducted in “hot pursuit” of a fleeing criminal, a “stop and frisk”

based on reasonable suspicion of criminal activity, and probable cause to search with

exigent circumstances. State v. Bartram, 925 S.W.2d 227, 230 & n.2 (Tenn. 1992).

Whether a person voluntarily consents to a search is a question of fact that is to be

determined from the totality of the circumstances. State v. Berrios, 235 S.W.3d 99, 109

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(Tenn. 2007). In order for consent to be voluntary, it must be “unequivocal, specific,

intelligently given, and uncontaminated by duress or coercion.” Id. (quoting State v.

Simpson, 968 S.W.2d 776, 784 (Tenn. 1998)) (internal quotation marks omitted). “The

pertinent question is this: whether the [individual‟s] act of consenting is the product of an

essentially free and unconstrained choice. If the [individual‟s] will was overborne and

his or her capacity for self-determination critically impaired, due process is offended.”

State v. Cox, 171 S.W.3d 174, 185 (Tenn. 2005) (citing Schneckloth v. Bustamonte, 412

U.S.218, 225-26 (1973). When determining the voluntariness of consent, factors to

consider include: (1) “[t]ime and place of the encounter;” (2) “[w]hether the encounter

was in a public or secluded place;” (3) “[t]he number of officers present;” (4) “[t]he

degree of hostility;” (5) “[w]hether weapons were displayed;” (6) “[w]hether consent was

requested;” and (7) “[w]hether the individual initiated contact with the police.” Id.

(citing 79 C.J.S. Searches and Seizures § 119(b) (1995 & Supp. 2004)).

Additionally, “a consent to search that is preceded by an illegal seizure is not „fruit

of the poisonous tree‟ if the consent is both: 1) voluntary, and 2) not an exploitation of

the prior illegality.” State v. Garcia, 123 S.W.3d 335, 346 (Tenn. 2003) (citing Wayne

LaFave, 3 Search and Seizure § 8.2 (d) at 656 (3d ed. 1996)). To determine whether the

prior illegality was sufficiently attenuated from consent to search, courts look to the

following factors: (1) “the temporal proximity of the illegal seizure and consent;” (2) “the

presence of intervening circumstances;” and (3) “the purpose and flagrancy of the official

misconduct.” Id. (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). Attenuation

issues are highly factual, and the burden of proving attenuation lies with the State. Id.

Voluntary consent can be given by a third party who has “common authority” over

the premises or effects to be searched. United States v. Matlock, 415 U.S. 164, 171

(1974); State v. Ellis, 89 S.W.3d 584, 593 (Tenn. Crim. App. 2000). The United States

Supreme Court has defined “common authority” as follows:

The authority which justifies the third-party consent does not rest upon the

law of property . . . but rests rather on mutual use of the property by

persons generally having joint access or control for most purposes, so that it

is reasonable to recognize that any of the co-inhabitants has a right to

permit the inspection in his own right and that the others have assumed the

risk that one of their number might permit the common area to be search.

Matlock, 415 U.S. at 171 n.7. The State may also show that consent was valid “by

demonstrating that the facts available to the searching police officers would have

warranted “a man of reasonable caution in the belief that the consenting party had

authority of the premises.” Ellis, 89 S.W.3d at 593 (quoting Illinois v. Rodquiguez, 497

U.S. 177 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968))) (internal quotation

marks omitted).

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In this case, the trial court found that the Defendant was illegally arrested in his

home without a warrant.4 However, the trial court also found that Ms. Bryant had

consented to a search of her home, that officers did not coerce her to provide that consent,

and that the search was “sufficiently attenuated from the previous day‟s unconstitutional

entry.” Sergeant Francis testified that he and one other officer returned to the

Defendant‟s residence the day after the Defendant was arrested and asked Ms. Bryant to

sign a form consenting to the search of her home. He also stated that he went over the

form in detail with Ms. Bryant. Ms. Bryant confirmed that she could read and write and

that she did not feel pressured to sign the form. Further, although she claims she did not

know the officers were going to search her residence, she did know that she consented for

them to come in and “look around,” and she did not object to them searching the

Defendant‟s bedroom. Further, a day passed between the time the Defendant was

arrested and when Ms. Bryant gave consent to search. As to intervening circumstances,

Sergeant Francis explained the consent form in detail before asking Ms. Bryant to sign it.

Finally, regarding the flagrancy of the official misconduct, the Defendant was arrested in

his home without a warrant, and Ms. Bryant‟s reaction was simply to say, “Well, last

time that happened, they brought him back the same day.” Based on the record before us,

we are unable to say that the trial court erred when it found that Ms. Bryant voluntarily

consented to the search and that her consent was sufficiently attenuated from the

Defendant‟s illegal seizure.

The Defendant also argues that Ms. Bryant did not possess common authority to

consent to a search of his bedroom. The record reveals that the Defendant slept in Ms.

Bryant‟s home approximately every other night and shared a room with his brother.

Further, Ms. Bryant stated that she went into the Defendant‟s bedroom “all the time.”

Sergeant Francis stated that Ms. Bryant led the officers to the Defendant‟s bedroom and

that he thought Ms. Bryant had the authority to consent to a search of the Defendant‟s

room because she was on the lease. Based on the record, there were sufficient “facts

available to the searching police officers [that] would have warranted a man of

reasonable caution in the belief that the consenting party had authority over the

premises.” See Ellis, 89 S.W.3d at 593 (internal quotation marks omitted); see also State

v. Woods, 806 S.W.2d 205, 209 (Tenn. Crim. App. 1990)(homeowner‟s consent effectual

because she had common authority over a family member‟s bedroom when homeowner

occasionally entered the bedroom). The trial court did not err when it allowed the

evidence found in the Defendant‟s bedroom to be admitted at trial. The Defendant is not

entitled to relief on this issue.

4

The State in its brief does not contest the trial court‟s finding that the Defendant‟s seizure was

illegal.

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Videotape of Victim’s Statement

Initially, we note that the Defendant does not challenge, and we are not

determining, whether the admissibility of the forty-seven minute video tape recording of

the victim recounting her attack constitutes an excited utterance.5 Rather, the Defendant

contends that the video recording from Officer Slaughter‟s patrol car showing the victim

immediately after the offense should have been excluded under Tennessee Rule of

Evidence 403. The Defendant notes that the jury was provided a transcript of the video

and argues that the video‟s depiction of the victim‟s emotional state was “overly

inflammatory” and that its prejudicial effect “was not outweighed by the video‟s

probative value.” The State argues that the video was relevant to establish the

circumstances of the offense and to provide a description of the assailants and that its

probative value was not substantially outweighed by the danger of unfair prejudice.

In order for evidence to be admissible, it must be relevant. Tenn. R. Evid. 402.

Evidence is 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 without the evidence.” Tenn. R. Evid. 401. However, even if evidence is relevant,

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

unfair prejudice, confusion of the issues, or misleading the jury . . . .” Tenn. R. Evid.

403. We review a trial court‟s ruling regarding the admissibility of evidence for an abuse

of discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008).

The trial court did not abuse its discretion when it ruled that the video recording of

the victim‟s statement was admissible under Rule 403. Although it is obvious that the

victim was extremely upset at the time the video was recorded, she was able to describe

the rape in detail to Officer Slaughter, and she was able to give a description of her

assailants. Cf. State v. Michael Lynn Stanton, No. E2003-02675-CCA-R3-CD, 2005 WL

876873, at *12 (Tenn. Crim. App. Apr. 15, 2005), perm. app. denied (Tenn. Oct. 24,

2005) (probative value of audiotape substantially outweighed by its prejudicial effect

when the victim can be heard “moaning, sobbing, and screaming in grief and hysteria”

but none of her statements were discernable, adding nothing to her testimony). That

description was later used to locate the City Café and Convention Center security

footage. Additionally, after the City Café footage was released to the media, officers

were able to locate the yellow jacket and identify the Defendant as a suspect. Moreover,

the victim‟s description of the suspects and of the rape in the video was consistent with

her testimony at trial. Although the victim was upset throughout the recording, the

recording was also relevant to showing the victim experienced a traumatic event and was

relevant to her credibility.

5

Interestingly, the Defendant agreed to its admission as an excited utterance and moved

for the admission of the entire tape into evidence.

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To the extent that the Defendant argues that the transcript should have been

submitted to the jury instead of the video, the video recording was the best evidence, and

the trial court did not err in admitting the video rather than the transcript. See Tenn. R.

Evid. 1002. The Defendant is not entitled to relief on this ground.

Sufficiency of the Evidence

Finally, the Defendant argues that there was insufficient evidence to support his

conviction for aggravated rape because “[t]he DNA evidence produced at trial did not

implicate or connect the Defendant to the rape.” The State argues that there was

sufficient evidence to support the Defendant‟s conviction for aggravated rape. We agree

with the State.

Our standard of review for a sufficiency of the evidence challenge is “whether,

after viewing the evidence in the light most favorable to the prosecution, 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) (emphasis in original); see also Tenn. R.

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This

court will not reweigh the evidence. Id. The standard of review “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)) (internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). The defendant bears the burden of proving why the evidence was

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221

S.W.3d 514, 521 (Tenn. 2007).

The identity of the perpetrator is “an essential element of any crime.” State v.

Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity may be established with circumstantial

evidence alone, and the “jury decides the weight to be given to circumstantial evidence,

and [t]he inferences to be drawn from such evidence . . . .” Id. (internal quotation marks

omitted). The question of identity is a question of fact left to the trier of fact to resolve.

State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).

As charged in this case, “[a]ggravated rape is unlawful sexual penetration of a

victim by the defendant or the defendant by the victim accompanied by any of the

following circumstances: . . . (3) [t]he defendant is aided or abetted by one (1) or more

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other persons; and (A) [f]orce or coercion was used to accomplish the act[.]” Id. “

„Sexual penetration‟ means 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 openings of the victim‟s, the defendant‟s, or any other person‟s body,

but emission of semen is not required[.]” Id. “ „Force‟ means compulsion by use of

physical power or violence and shall be broadly construed to accomplish the purposes of

[Title 39 of Tennessee Code Annotated.]” Id.

In this case, the victim was choked until she passed out. When she regained

consciousness, the person in the gray hoodie demanded that she perform fellatio or

remove her pants. A second man in a yellow hoodie and Afro wig told the victim that he

had a knife and that he would “break [her] face” if she screamed. When the victim tried

to flee, the person in the gray hoodie removed her pants, and then both men raped her.

The victim stated that neither assailant‟s penis was fully erect but that both men

penetrated her. The victim sustained injuries to her vagina that were consistent with

blunt force trauma often caused by forced penetration, and her cervix was reddened and

debris was found inside her vaginal canal. The victim identified the Defendant in the

photo lineup and at trial as the person with the Afro wearing the yellow hoodie.

Although the Defendant claimed that he gave the phone, wig, hoodie, and bike to

Mr. Williams soon after leaving City Café, the jury clearly discredited his testimony. In

his statement to police, the Defendant said that he gave the yellow hoodie to Mr. Haddox

because he wanted to wear it. Further, the Defendant admitted that he was at City Café

with Mr. Williams wearing a yellow hoodie and Afro wig and that he appeared in the

City Café security footage dressed in that attire. An hour later, the Chattanooga

Convention Center security footage shows two people of similar stature and wearing

similar clothes as those in the City Café footage following the victim on bikes.

Moreover, the phone Ms. Brown lent to the Defendant was found at the crime scene, and

Ms. Brown testified that the Defendant and Mr. Williams returned to her residence

together. Even absent DNA evidence linking the Defendant to the rape, the evidence was

sufficient for the jury to conclude that the Defendant and another person used force in

order to unlawfully sexually penetrate the victim. Therefore, the Defendant is not

entitled to relief on this ground.

III. Conclusion

For the aforementioned reasons, the judgments of the trial court are affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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