# State of Tennessee v. Septian Jamarquis Valentine

> Court of Criminal Appeals of Tennessee · January 3, 2020

URL: https://www.frixlaw.com/law-library/cases/4469575

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** January 3, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge D. Kelly Thomas, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4469575

## How later opinions describe it (automated extraction)

- noting that a witness’s note to the trial court regarding a communication with a juror was admissible because it “related to potentially prejudicial external influences” and not “the jury’s deliberations or the juror’s thought processes”

## Opinion text

01/03/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 7, 2019

STATE OF TENNESSEE v. SEPTIAN JAMARQUIS VALENTINE

Appeal from the Circuit Court for Lake County
No. 17-CR-10395 R. Lee Moore, Jr., Judge

No. W2018-01400-CCA-R3-CD

The Defendant, Septian Jamarquis Valentine, was charged with two counts of rape. See
Tenn. Code Ann. § 39-13-503. Following a jury trial, the Defendant was found not guilty
on count one and guilty on count two and sentenced to fourteen years incarceration. On
appeal, the Defendant contends that error exists because (1) the trial court did not allow
Lisa Garrett to testify about the Defendant’s negative chlamydia test performed one year
after the incident; (2) the evidence was insufficient to convict the Defendant; and (3) a
juror, who was “not truthful” during voir dire, “bullied” others into convicting the
Defendant. Following our review, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and THOMAS T. WOODALL, JJ., joined.

Hal J. Boyd, Tiptonville, Tennessee, for the appellant, Septian Jamarquis Valentine.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle,
Assistant Attorney General; Danny H. Goodman, Jr., District Attorney General; and
Lance Webb, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND
The Defendant was charged with the rape of two individuals, M.D. and A.G.1
Following a trial, the Defendant was convicted of raping A.G. but was acquitted of raping
M.D.

On March 21, 2018, trial commenced with voir dire examination. Upon the
State’s asking if anyone was a friend of the Defendant’s family, potential juror Rhonda
Battee raised her hand. Ms. Battee assured the prosecutor that although she knew the
Defendant’s grandmother and mother and had worked with the Defendant’s aunt, she had
no reason to give the Defendant’s testimony greater or lesser weight. Soon after, Ms.
Battee informed the prosecutor that she knew Ashley Kimmons, a witness for the State.
Ms. Kimmons was Ms. Battee’s former sister-in-law. Ms. Battee said she had no reason
to believe she would give Ms. Kimmons’ testimony any greater or lesser weight because
of this former relationship.

The State called Shawntel Taylor to testify. In the early morning hours of April 2,
2017, Mr. Taylor saw the Defendant at Garage Bar, a local Tiptonville establishment. At
some point in the evening, he saw M.D. and A.G. outside of the bar. He spoke to both
women, noting that A.G. “was kind of drunk.” While outside of the bar, he heard the
Defendant yell at M.D. to stop the car she was driving and saw the Defendant get in the
car.

On cross examination, Mr. Taylor explained that he had previously had a
relationship with M.D. and that she was upset on the night of April 2 because he had
brought his new girlfriend to the bar. M.D. cried in front of Mr. Taylor that night.

M.D. testified on direct examination that she went to Garage Bar with A.G. on the
night of April 1, 2017. M.D. saw the Defendant at Garage Bar the same night. She
admitted to drinking alcohol, but she could not recall specifically how much she had to
drink. She mentioned that the Defendant “was flashing all his money in the air and [she]
just grabbed it” to be funny. She denied dancing with the Defendant and relayed that he
offered to buy her a drink “[e]very time he seen [sic] [her].” M.D. accepted the
Defendant’s last offer for a drink, but she handed it to another patron when she was
served. She did not consume the drink. She denied flirting with or encouraging the
Defendant.

M.D. did not recall A.G.’s indicating that she felt unwell at the bar. However,
after both women exited the bar, A.G. could not drive her car “because she was drunk,

1
It is the policy of this court to refer to victims of sexual offenses by their initials. Although the
Defendant was found not guilty of M.D.’s rape, we will also refer to her using her initials for consistency.

-2-
throwing up all in the car.” M.D. drove the car. M.D. testified that the Defendant
“jump[ed] in the car” and eventually reached over the driver’s seat “trying to touch
[M.D.’s] private” and she told him to stop.

When questioned about why she did not drop the Defendant off at his intended
destination, she responded that she was worried she would be pulled over by a policeman,
so she decided to take A.G. home first. A.G. threw up a second time in the car before
reaching her apartment.

Upon reaching A.G.’s apartment, M.D. handed keys to the Defendant, and he
“said he was going to go unlock the door.” A.G. could not walk on her own and was
helped inside by M.D. Once inside, A.G. was “passed out” on the living room floor, and
M.D. began calling friends for a ride home. The Defendant also entered the apartment.

The Defendant was standing in front of the coffee table and wanted M.D. to “help
him count his money.” She refused and continued to call friends. A.G. did not wake up
during this time. M.D. fell asleep at some point and was awakened by the Defendant on
top of her. Her leggings were pulled down to her knees and her legs were in the air. The
Defendant’s penis was in her vagina. She shoved the Defendant off of her and he pushed
himself back on top of her again. She kicked the Defendant and ran out of the apartment.
The Defendant followed her.

M.D. called her sister as she was running down Cherry Street. Her sister called
the police and drove to retrieve M.D. M.D. denied flirting with, kissing, or making
sexual advances toward the Defendant. She denied any previous relationship with the
Defendant. She said she was concerned about A.G., who was still asleep on the floor
when she ran from the apartment.

Upon officers’ arriving at M.D.’s sister’s residence, M.D. said she was worried
about A.G. Officer Glidewell instructed her to have a rape kit examination. She was
escorted to the local hospital by Officer Warren Douglas to have a rape kit examination
performed. She met with a sexual abuse nurse examiner, who examined her pelvis and
collected several swabs. She confirmed that she gave a statement to Officer Glidewell
and testified at the preliminary hearing.

On cross-examination, M.D. testified that she observed A.G. consume a large
amount of alcohol. She confirmed that she did not call 911 upon leaving the apartment.
Although M.D. acknowledged that she wrote a statement on April 2, 2017, she denied
that a statement shown to her by defense counsel was hers. M.D. identified her signature
at the end of the statement, however. She denied the written statement’s contents that she
and the Defendant “laid down on the couch” together. She indicated that the hand-
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written statement was actually her sister’s handwriting. M.D. recalled that at the
preliminary hearing, she accused the Defendant of giving her chlamydia because the
sexual abuse nurse examiner had informed her that she tested positive for the sexually
transmitted disease.

Kaylah Howard, M.D.’s sister, testified that on April 2, 2017, she received a call
from M.D. M.D. was “crying, very upset, and just asking [Ms. Howard] to come get
[M.D.].” Upon picking up M.D., Ms. Howard placed a call to the Lake County Sheriff’s
Department because M.D. told her that she had been raped by the Defendant. Ms.
Howard identified the hand-written statement previously shown to M.D. as being M.D.’s
handwriting with her signature.

A.G. testified that she had known the Defendant some eight or nine years but
could not recall seeing the Defendant on the night of April 1, 2017. She could not
remember getting sick that night. She believed that someone “did something” to one of
her drinks. She did not remember agreeing to sexual intercourse.

A.G. testified that on April 2, 2017, she was given a rape examination at the local
hospital, was prescribed a “Plan B” pill, and was treated for chlamydia. She denied
having a relationship with the Defendant, but she confirmed that the two had engaged in
“sexual relations” once before. At the preliminary hearing, A.G. had denied having any
sort of “sexual relationship” with the Defendant, but she claimed that she had
misunderstood the question.

Upon cross-examination, A.G. testified that her blood alcohol level “was way
beyond the legal limit” on the night of the incident. When questioned about giving
consent to the Defendant to have sex, A.G. replied, “I did not give consent for anything…
I was unconscious… There was no way I could [sic] say yes or no.”

The State’s next witness, Johnny Parson, testified that he worked at Garage Bar in
April 2017 and knew M.D. and A.G. After the bar closed in the early morning hours of
April 2, 2017, Mr. Parson visited Ms. Howard’s house where he learned via M.D. about
what had happened at A.G.’s apartment.

Upon learning this information, Mr. Parson and a friend went to A.G.’s apartment
to “check on [A.G.]” and found that “she was in the bed unconscious.” He picked A.G.
up, carried her to the car, and drove her to Ms. Howard’s house. A.G. could not walk or
stand on her own.

On cross-examination, Mr. Parson explained that upon arriving at Ms. Howard’s
house, two police officers were present. He soon left the residence to drive to A.G.’s
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apartment to “check on her,” despite the two officers being present. Upon arrival, A.G.’s
apartment was unlocked. A.G. had clothes on and “was covered in something from the
waist down.”

Officer Nicholas Stagg of the Tiptonville Police Department testified on behalf of
the State. In the early morning hours of April 2, 2017, Officer Stagg encountered the
Defendant walking across the yard of Cherry Street Apartments, where A.G. lived.
Officer Stagg detained the Defendant and transported him to jail.

Officer Cory Glidewell of the Tiptonville Police Department testified that on April
2, 2017, he asked Mr. Parson to check on A.G. after arriving at Ms. Howard’s residence
and speaking with M.D. There was no indication that anything had happened to A.G. at
this time. Mr. Parson soon returned to Ms. Howard’s home with A.G. Officer Glidewell
described her as “highly intoxicated.” Officer Glidewell continued, “She couldn’t stand
up without help… She was pretty well passing out with people holding her up.” A.G.’s
jeans “were covered in vomit.”

Officer Glidewell instructed M.D. and A.G. to receive a sexual abuse examination
at the local hospital. Officer Glidewell then proceeded to A.G.’s apartment to “check the
scene.” He “went through the garbage cans, bed sheets, couch cushions, under the
couch” and other places searching for a condom or condom wrapper. He did not find
one. He also searched A.G.’s car and found a “large puddle of vomit in the passenger
side floor board.”

After concluding his search, Officer Glidewell proceeded to the jail and spoke
with the Defendant. The Defendant was cooperative and admitted to having sex with
both M.D. and A.G. The Defendant said that he used a condom while having intercourse
with M.D., but that he did not use a condom with A.G.

Upon cross-examination, Officer Glidewell testified that A.G.’s blood alcohol
level was high, “but I don’t think it was .09.” He sent Mr. Parson to A.G.’s apartment
because he was “concerned about [her] well-being considering the state of intoxication”
after speaking with M.D. He did not see signs of a struggle upon investigation of A.G.’s
apartment. A.G. did not remember having sex or vomiting.

Shayna Dance testified on behalf of the Defendant. Ms. Dance had known the
Defendant since 2013 and had been in a relationship with the Defendant for a “couple of
years.” At the time of the incident, the two were “best friends.” She had also been good
friends with M.D. until around April 2017.

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Creston Tyler was the Defendant’s lifelong friend and was at Garage Bar on April
1, 2017. Mr. Tyler was also familiar with M.D. and saw the Defendant, M.D., and A.G.
at Garage Bar on the night of the incident. He testified that while at the bar, M.D.
approached him and the Defendant, and she “started asking [the Defendant if he was]
going to leave with [M.D. and A.G.] after [the] bar.”

Dominic Kimbrell testified that he was with the Defendant during the early
evening hours of April 1, 2017. The Defendant was gambling, and the two went to
Garage Bar later that night. Mr. Kimbrell confirmed that he saw M.D. and A.G. at the
bar that night and saw both women and the Defendant engaged in conversation. He left
the bar before the Defendant.

Calvin Taylor testified that he was at Garage Bar on the night of April 1, 2017.
Mr. Taylor had offered the Defendant a ride to Elm Street late that night. Mr. Taylor and
the Defendant were walking to Mr. Taylor’s car when M.D. and A.G. stopped to ask,
“[W]hat are y’all about to do[?]” The Defendant replied, “I’m trying to go with y’all.”
At this point, M.D. unlocked the back door, and the Defendant got into A.G.’s car.

The Defendant testified that on April 1, 2017, he was celebrating his birthday at
Garage Bar. He had won about $1,700 earlier that evening shooting dice. The Defendant
arrived at Garage Bar with Dominic and Clint Kimbrell, but he had planned to leave with
Calvin Taylor. While walking to Mr. Taylor’s truck, M.D. approached the Defendant and
asked if he would like to go with her and A.G. The Defendant recognized the car being
driven by M.D. and decided to go with them. M.D. drove around “probably [twenty or
thirty] minutes.” The Defendant testified that at every stop sign, he and M.D. would kiss.
Upon reaching Elm Street, the Defendant asked for one more kiss and said, “[Y]ou going
to tease me all night.” The Defendant asked to go home with M.D. and A.G. The three
individuals went to A.G.’s apartment. The Defendant denied that A.G. needed help into
the apartment. He had his arm around both women while walking into the apartment.

The Defendant and M.D. had sex on the couch. The Defendant wore a condom.
M.D. had to use the restroom at one point, but came back, and the two continued to have
sex. The Defendant denied that M.D. kicked him. M.D. then counted the Defendant’s
money upon his request and she left the apartment. The Defendant denied ever seeing
M.D. make phone calls in A.G.’s apartment. The Defendant also denied that M.D. fell
asleep on the couch.

While the Defendant and M.D. were having sex, A.G. was leaning against the
couch. A.G. was conscious and talking. All three individuals were drunk. After M.D.
left the apartment, A.G. invited the Defendant to her room. The Defendant informed

-6-
A.G. that he could not stay with her because Mr. Taylor was on his way to get the
Defendant. The Defendant and A.G. had sex and both were completely naked.

The Defendant testified that A.G. was naked in bed when he left. He did not put
her clothes back on her. A.G. said she would talk to the Defendant tomorrow. The
Defendant left the apartment “about 3:15 [a.m]” and was arrested by Officer Staggs
shortly thereafter.

On cross-examination, the Defendant denied seeing A.G. throw up in the car,
smelling vomit in the car, or seeing vomit on A.G. When questioned about wearing a
condom while having sex with M.D., the Defendant testified that he “flushed
everything,” including both the condom and the wrapper. The Defendant mentioned
having two unused condoms to Officer Glidewell after he had been arrested. The
Defendant confirmed that he did not mention riding around twenty to thirty minutes
before arriving at A.G.’s apartment. The Defendant also confirmed that he did not tell
Officer Glidewell that he had sex twice with M.D.

On redirect examination, the Defendant confirmed that he kissed M.D. at every
stop sign while driving around. He indicated that he had a romantic history with A.G.
and that all three individuals knew each other very well.

On the second day of trial, the Defendant called Lisa Garett of Lake County
Primary Care for an offer of proof, outside of the jury’s presence. Ms. Garrett confirmed
that the Defendant had given a specimen on March 19, 2018 and tested negative for
chlamydia. The trial court would not allow the Defendant to present this evidence
because it was not relevant and the test had been performed almost an entire year after the
incident.

On rebuttal, the State called Sergeant Dakota Leland. Sergeant Leland worked as
a dispatcher and correctional officer at the Lake County Sheriff’s Department. He
testified that a 9-1-1 call was received from Kaylah Howard at 2:22 a.m. on April 2,
2017, and he could hear screaming and crying in the background.

Upon cross-examination, Sergeant Leland confirmed that the Defendant’s arrest
report from the incident indicated a dispatch was called to report M.D.’s accusations at
2:51 a.m. and that a response was recorded at 3:03 a.m.

Officer Glidewell was recalled by the State and testified that he did a thorough
inspection of A.G.’s apartment and that there did not seem to be any signs of drinking or
drug use. The State submitted a recording of the Defendant’s interview with Officer
Glidewell.
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On cross-examination, Officer Glidewell testified that he was off-duty at the time
he was contacted to investigate the incident. He had more experience with this type of
investigation than the on-duty officers and was familiar with the rape kit used for this
type of crime.

The Defendant was found not guilty on count one, the rape of M.D., but was found
guilty on count two, the rape of A.G. The jury was polled and the verdict was unanimous.

MOTION FOR NEW TRIAL

On June 25, 2018, a hearing on the motion for a new trial was held. The
Defendant argued that juror Rhonda Battee was “a ring leader” and bullied three other
jurors into convicting the Defendant. The Defendant offered three affidavits obtained
from these jurors to support this argument.

The Defendant argued that Ms. Battee “didn’t answer the questions truthfully on
voir dire” about her relationship to the Defendant. The Defendant called Mary Fields, his
aunt, to testify that she was “related somehow” to Ms. Battee’s husband, Joe Battee, Jr.
Ms. Fields also testified that she knew Ron Fryerson, the Defendant’s cousin, and that he
had children with Ms. Battee’s daughter.

The Defendant then called Damio Yancy, the Defendant’s cousin, to testify. Mr.
Yancy testified that Joe Battee, Jr., and Ron Fryerson are also the Defendant’s cousins.
Mr. Yancy described Ms. Battee’s relationship with Ron Fryerson as “bad.”

Additionally, the Defendant argued that the trial court erred by not allowing Lisa
Garrett to testify in front of the jury about the Defendant’s negative chlamydia test. The
Defendant contended that because both victims testified that the Defendant gave them
chlamydia, the negative test “would’ve gone to [the victims’] credibility and would’ve
gone to [the Defendant’s] innocence of having sex with them that night.” The Defendant
continued that the negative test “was crucial to the case and possibly change [sic] the
verdict.”

The Defendant argued that A.G.’s blood alcohol level was not high enough to
sustain the conviction for rape, that A.G. was fully clothed “when the disc jockey and the
girl” found her in the apartment, and that A.G. “had no memory of any sexual activity
and there’s no medical evidence” to support the conviction.

The State responded that Ms. Battee was truthful during voir dire. Ms. Battee
testified at the hearing that her husband was “related to [the Defendant] some kind of
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way.” Ms. Battee continued that she had not lived with her husband in seventeen years,
did not keep in touch with any of his family members, and did not attend her husband’s
family events. Ms. Battee averred that she did not know she was related to the Defendant
by marriage and that she had answered truthfully during voir dire about knowing his
grandmother and aunt.

Upon cross-examination, Ms. Battee denied knowing that Ron Fryerson was the
Defendant’s cousin. Ms. Battee testified that she did not see Mr. Fryerson.

The court did not permit questioning pertaining to Ms. Battee’s “bullying” the
other jurors relying on Tennessee Rule of Evidence 606. The court stated that it polled
each juror after the verdict was read and that “each juror answered the question that it
was his or her decision to find [the Defendant] guilty.”

Relative to the Defendant’s argument that Ms. Battee lied during voir dire, the
court found that “there [was] not any definite relationship that was violated… There’s
nothing to indicate to the [c]ourt that she lied in the voir dire examination.” The court
further found that nothing indicated Ms. Battee’s presence on the jury prejudiced the
Defendant.

Relative to Ms. Garrett’s proposed testimony, the court found that the test was
given “a year after this particular incident occurred” and that the Defendant “elicited [the
chlamydia] testimony from the State witnesses” and then “used it to try to impeach their
testimony.” Additionally, the court noted that the Defendant admitted to having sex with
A.G. and found that Ms. Garrett’s proposed testimony was not relevant.

Finally, the court found that the evidence was sufficient to sustain the Defendant’s
conviction, specifically referencing the testimony that A.G. was intoxicated, had passed
out, and could not stand on her own later that night, and that also a rape kit was
performed. The court denied relief on the Defendant’s motion.

The Defendant timely filed a notice of appeal. The case is now before us for
review.

ANALYSIS
The Defendant argues that the trial court erred in excluding evidence that he tested
negatively for a sexually transmitted disease at the time of trial; that the evidence was
insufficient to sustain his conviction; and that three jurors were “bullied” into reaching a
verdict. We will address each issue in turn.

I. Exclusion of Evidence
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The Defendant contends that the trial court erred by excluding Ms. Garrett’s
testimony regarding the Defendant’s negative chlamydia test one year after the incident.
The Defendant relies on Tennessee Rule of Evidence 412, known as the Rape Shield
Law, arguing the impeachment evidence is proper. The State argues on appeal that the
trial court did not rely on Rule 412 but instead excluded the evidence based on lack of
relevance even if it were otherwise admissible under Rule 412.

In order to be admissible, evidence must first be relevant. Tenn. R. Evid. 402.
Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Tenn. R. Evid. 401. Even relevant evidence may
be excluded “if its probative value is substantially outweighed by the danger of unfair
prejudice.” Tenn. R. Evid. 403. “‘Prejudice becomes unfair when the primary purpose of
the evidence at issue is to elicit emotions of bias, sympathy, hatred, contempt, retribution,
or horror.’” State v. Young, 196 S.W.3d 85, 106 (Tenn. 2006) (quoting State v. Collins,
986 S.W.2d 13, 20 (Tenn. Crim. App. 1998)) (quotation marks omitted). Decisions
regarding the relevance of evidence are reviewed for abuse of discretion. State v.
Watson, 227 S.W.3d 622, 649 (Tenn. Crim. App. 2006); State v. Powers, 101 S.W.3d
383, 395 (Tenn. 2003).

The admissibility of impeachment evidence is a matter within the trial court’s
sound discretion, and we review such decisions under an abuse of discretion standard.
See State v. Gomez, 367 S.W.3d 237, 243 (Tenn. 2012). Therefore, “[a] decision to
admit evidence will be reversed ‘only when the court applied an incorrect legal standard,
or reached a decision which is against logic or reasoning’ and the admission of the
evidence ‘caused an injustice to the party complaining.’” Id. at 243 (quoting State v.
Gilliliand, 22 S.W.3d 266, 270 (Tenn. 2000)).

The trial court noted that Ms. Garrett’s testimony concerning the Defendant’s
negative chlamydia test was on the record as an offer of proof. The court did not allow
Ms. Garrett to testify because the test was given to Defendant “a year after this particular
incident occurred.” The court found that the negative test was not relevant, noting that
the Defendant had admitted to having sex with A.G. on the night of the incident. The
court found that the negative test would not have been relevant to the Defendant’s case or
defense. The court also noted that the Defendant elicited testimony regarding chlamydia
from the victim and then attempted to use the information to impeach that witness.

The trial court did not rely on Tennessee Rule of Evidence 412 governing
impeachment evidence to exclude Ms. Garrett’s testimony. The court instead relied on
Tennessee Rule of Evidence 401 and held that the testimony from Ms. Garrett was not
-10-
relevant to the Defendant’s case as the Defendant had already admitted he had sex with
A.G. The negative test would not make it any more or less probable that A.G. was
mentally defective, mentally incapacitated, or physically helpless, which was the primary
issue of the case. In addition, the trial court noted the passage of time between the
incident and the test. We cannot say that the court abused its discretion in excluding the
negative test.

II. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to convict him of rape.
The Defendant argues that the jury only heard one version of events from the night in
question from M.D. He continues that there was no evidence that anyone assisted A.G.
with putting her clothes back on after sex; therefore, she must have been conscious, and a
reasonable person would have believed she had the ability to consent to sex. The
Defendant further argues that it was only upon suggestion of others that A.G. was taken
for a rape examination. The State responds that the evidence is sufficient.

An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal 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). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.
1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding
witness credibility, conflicts in testimony, and the weight and value to be given to
evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997).

A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987)

The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this
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court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of
the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

Tennessee Code Annotated § 39-13-503 states in relevant part, that “[r]ape is [the]
unlawful sexual penetration of a victim by the defendant or of the defendant by a victim”
when accomplished without consent, or “[t]he defendant knows or has reason to know
that the victim is mentally defective, mentally incapacitated or physically helpless” and
acted intentionally, knowingly, or recklessly.

At trial, multiple witnesses testified to A.G.’s level of intoxication. Mr. Taylor
testified that A.G. was “kind of drunk” when he saw her at the bar. M.D. testified that
A.G. was “drunk, throwing up all in the car,” when the two left the bar with the
Defendant and that A.G. threw up a second time on the drive to the apartment.
Additionally, M.D. testified that she had to help A.G. into the apartment before A.G.
“passed out” in the apartment floor. Johnny Parson testified that when he arrived at
A.G.’s apartment, she was “in the bed unconscious.” He had to carry her to his car.
Upon arrival to Ms. Howard’s house, Officer Glidewell observed that A.G. could not
stand up on her own and her pants were “covered in vomit,” and he saw a pool of vomit
in the passenger seat floorboard of A.G.’s car. Additionally, the Defendant admitted
during his testimony that he had sex with A.G. in her bed on the night in question.

In the light most favorable to the State, circumstantial evidence of A.G.’s level of
intoxication and inability to give consent was proved at trial, and a rational trier of fact
could have found that the Defendant knew or had reason to know that A.G. was too
mentally incapacitated to consent to sexual penetration. The jury rejected the
Defendant’s testimony that he had consensual sex with A.G., and we will not re-weigh
the testimony. The evidence is sufficient to convict the Defendant of rape and he is not
entitled to relief on this basis.

III. Improper Jury Conduct

The Defendant contends that the trial court erred by not setting aside his
conviction, arguing that Ms. Battee “bullied” others into convicting the Defendant. The
State responds that all jurors were polled at the end of the trial, and the vote to convict
was unanimous.

In a claim that the jury has been tainted by extraneous prejudicial information,
disqualification, mistrial, or a new trial should only be granted when there is extra-
judicial communication which is prejudicial to the defendant and not harmless error.
State v. Smith, 418 S.W.3d 38, 49 (Tenn. 2013). “A party challenging the validity of a
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verdict must produce admissible evidence to make an initial showing that the jury was
exposed to extraneous prejudicial information or subjected to an improper outside
influence.” State v. Adams, 405 S.W.3d 641, 651 (Tenn. 2013); Smith, 418 S.W.3d at
48 (noting that a witness’s note to the trial court regarding a communication with a juror
was admissible because it “related to potentially prejudicial external influences” and not
“the jury’s deliberations or the juror’s thought processes”). The admissibility of this type
of evidence is governed by Tennessee Rule of Evidence 606(b), which states:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon any juror’s mind or emotions as
influencing that juror to assent to or dissent from the verdict or indictment or
concerning the juror’s mental processes, except that a juror may testify on the
question of whether extraneous prejudicial information was improperly brought to
the jury’s attention, whether any outside influence was improperly brought to bear
upon any juror, or whether the jurors agreed in advance to be bound by a quotient
or gambling verdict without further discussion.

Unlike extraneous prejudicial information, intra-jury pressure or intimidation are
“internal matters that do not involve extraneous information or outside influence.”
Caldararo ex rel. Caldararo v. Vanderbilt Univ., 794 S.W.2d 738, 742 (Tenn. Ct. App.
1990). Likewise, “a juror’s subjective thoughts, fears, and emotions” are internal
influences “that are not grounds to overturn a verdict.” Id.

The Defendant attempted to admit three affidavits from jurors as grounds to
overturn his conviction, stating the jurors all related that Ms. Battee’s inappropriate racial
remarks pressured them to vote guilty. The Defendant submits that this is extraneous
prejudicial information. However, Tennessee Rule of Evidence 606(b) explicitly forbids
this type of testimony. See Carruthers v. State, 145 S.W.3d 85 (Tenn. Crim. App. 2003).
The affidavits contain information about jury deliberations and jurors’ thought processes,
but they do not contain proof of extraneous prejudicial information that could have
warranted a new trial. We note that Ms. Battee denied any wrongdoing at the motion for
a new trial hearing. Internal jury influences are not grounds to overturn a verdict. The
Defendant is not entitled to relief on this basis.

CONCLUSION
Based upon the foregoing, the judgment of the trial court is affirmed.

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D. KELLY THOMAS, JR., JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4469575. Public record. Not legal advice.