        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 28, 2012 Session

         STATE OF TENNESSEE v. CARLOS RADALE CORNWELL

                   Appeal from the Criminal Court for Knox County
                    No. 89044     Richard R. Baumgartner, Judge


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


Appellant, Carlos Radale Cornwell, appeals his conviction of second degree murder and
resulting sentence of thirty-five years. Appellant cites the following errors: (1) the State
failed to adequately preserve evidence; (2) the trial court erred in permitting the State’s
medical expert to testify beyond the scope of her expertise; (3) the trial court improperly
allowed two of the State’s witnesses to testify as experts; (4) the trial court erred in allowing
improper testimony of certain lay witnesses; (5) the State improperly argued a theory in its
closing argument that was not supported by the evidence; (6) the State failed to provide audio
tapes of witness interviews in a timely fashion; (7) the trial court erred by allowing an officer
to read aloud the affidavit of complaint supporting a domestic violence warrant taken by the
victim against appellant; and (8) the trial court erred in sentencing appellant as a Range II
offender and in determining the length of appellant’s sentence. Discerning no error, we
affirm appellant’s conviction and sentence.

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

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

Mark E. Stephens, District Public Defender; John Halstead and Robert Edwards, Assistant
Public Defenders, Knoxville, Tennessee, for the appellant, Carlos Radale Cornwell.

Robert E. Cooper, Jr. Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                               I. Facts

                                       A. Procedural History

       A Knox County Grand Jury indicted appellant for one count of first degree murder of
his wife, Leoned Cornwell. The trial court appointed the Knox County Public Defender to
represent appellant. After a jury trial, the jury convicted appellant of the lesser-included
offense of second degree murder.

        This case involves a motor vehicle fatality where appellant struck the victim, his wife,
with his automobile. Appellant did not challenge the fact that he struck the victim with his
automobile. The primary dispute involved whether appellant moved his vehicle forward to
strike the victim, or whether, as he contended, he accidentally struck the victim as she walked
behind his vehicle. As such, evidence tending to support either theory was important. Thus,
prior to trial, appellant filed a motion based on State v. Ferguson, asking that the trial court
dismiss the indictment against him.1 Ferguson provides the legal analysis to be employed
by the court when an accused alleges loss or destruction of evidence by the State.

        Appellant argued to the trial court that after officers impounded and examined his
vehicle, they improperly stored it in an unprotected outdoor area, leading to material
alteration of evidence. Appellant maintained that his expert would contend that it was not
feasible for the State to draw the conclusions it reached based on the documentation it
provided to appellant and that independent visual inspection by appellant’s expert was
necessary, yet impossible. Thus, appellant argued that he could not defend himself against
the indictment.     The State responded that it adequately preserved the evidence
photographically and made the photographs available to appellant. After hearing testimony
from Gillis Dewayne Terry from the Knoxville City Impound Lot and accident
reconstructionists James Alan Parham and L.B. Steele, III, the trial court denied appellant’s
motion.

        In a subsequent pre-trial hearing, the parties addressed issues pertaining to the expert
testimony of Dr. Darinka Mileusnic-Polchan, Joe Cox, and L.B. Steele. At that time, the
trial court heard appellant’s argument regarding the anticipated testimony of his neighbors
Anthony and Stephanie Anderson. On the morning of trial, appellant offered further
argument about the expert testimony and the Andersons’ testimony.



       1
           See generally State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999)

                                                  -2-
                                     B. Facts from Trial

       Stephanie Anderson testified that she was a neighbor of the Cornwells at Morningside
Hills Apartments. She lived next door to appellant and the victim with her husband and
daughter. The Andersons’ apartment shared a common wall with the Cornwells’ apartment.
On March 5, 2008, Ms. Anderson was awakened at approximately 4:30 a.m. by the
Cornwells’ arguing. Appellant was screaming at the victim, calling her profane names such
as, “B***h. You stupid b***h. You stupid MF.” Ms. Anderson believed that appellant
sounded angry. Later that day, Ms. Anderson heard something about a death that prompted
her to call Detective Steve Still. He interviewed Ms. Anderson at her home the following
day. Another investigator accompanied Detective Still and simultaneously interviewed Mr.
Anderson in a different room.

       Anthony Anderson, Stephanie Anderson’s husband, confirmed that he heard appellant
yelling at the victim, including a great deal of profanity and cursing. He also heard appellant
threaten the victim by saying, “Stupid, mother f****er, you know that I’ll kill you.”

      Cebra Griffin, Sr., testified that he worked with appellant at Smokey’s restaurant at
the University of Tennessee. Mr. Griffin was at work around 5:00 a.m. on March 5, 2008,
and saw appellant arrive at approximately 5:25 a.m. Appellant was looking for their
supervisor. Mr. Griffin believed that appellant left around 5:30 or 5:45 a.m. According to
Mr. Griffin, appellant did not appear to be upset when he left.

       Angelel Williams testified that she worked at Smokey’s with appellant and Mr.
Griffin. She was at work on March 5, 2008. Appellant was already there when she arrived
at 5:30 or 5:45 that morning. He was in a good mood and did not indicate that he and the
victim had argued. Ms. Williams received a call for appellant. She did not see him leave
Smokey’s.

       Sandra Moore testified that she also lived in Morningside Hills Apartments. Ms.
Moore’s apartment shared a common wall with the Cornwells’ apartment. On March 5,
2008, she awoke at 5:30 a.m. and did not hear any yelling or screaming as she was getting
dressed for work. Ms. Moore left her apartment around 6:00 a.m., when she passed appellant
and the victim. They were walking toward their car. She heard them bickering but did not
describe it as yelling.

         Titonia Sawyer testified that she made a transaction using the ATM at ORNL Federal
Credit Union at 6:22 a.m. on March 5, 2008. She approached the credit union from a back
street, the name of which she did not recall. From the direction Ms. Sawyer approached, she
was facing the teller lanes. Ms. Sawyer noticed a car just in front of the teller lanes. She

                                              -3-
drove around the credit union to the ATM. The car she previously noticed pulled around,
also. The driver of the vehicle approached in such a way as to leave a space between Ms.
Sawyer’s car and the other vehicle. Ms. Sawyer’s window was rolled down and the driver’s
side door was ajar, allowing better access to the ATM. Ms. Sawyer did not hear arguments
or music coming from the other car. From her vantage point, Ms. Sawyer could see that a
male was in the driver’s seat. She could not clearly see anything else until a woman exited
the front passenger side of the vehicle. After the passenger exited the vehicle, the passenger
looked down into the car. The female passenger did not appear agitated; Ms. Sawyer thought
the woman was simply looking for her purse. The next time Ms. Sawyer looked back, the
woman had both passenger side doors open. Ms. Sawyer became very nervous, thinking that
she was about to be ambushed. When Ms. Sawyer received her ATM receipt, she left the
credit union by the same route she arrived. The other vehicle was in the same location, but
she could no longer see the woman.

        Ms. Sawyer then went to work. While at her desk, Ms. Sawyer watched the local
news on her computer. A news story reported that a hit-and-run had occurred at the ORNL
Credit Union at approximately 6:23 or 6:24 a.m. Ms. Sawyer checked her ATM receipt, and
upon confirming that her transaction occurred at 6:22 a.m., she called the police. When she
spoke with the investigator, he informed her that the police were looking for her. Ms.
Sawyer viewed a photograph of where the vehicle was oriented after the incident. She stated
that the other vehicle was farther “down,” meaning toward the street, than where she last saw
it.

       Gail Cox testified that she, along with her husband, Devery Cox, and their two
children were in their vehicle traveling west on Magnolia Avenue on the morning in
question. They stopped at a traffic light and saw a man in the eastbound lane of the road
walking toward the credit union. The man was waving his arms over his head and was
screaming hysterically for someone to call 9-1-1. They traveled through a green traffic signal
when they noticed the man was then in the median and was signaling them to stop or slow
down. Mr. Cox pulled to the median, at which time the man shouted for them to call 9-1-1
because “someone had been hit.” Mr. Cox moved their vehicle from the roadway into the
parking lot of ORNL Credit Union and dialed 9-1-1. As soon as the Coxes entered the
parking lot, Mr. Cox saw the victim on the ground behind a maroon car. Mr. Cox saw shoes,
an umbrella, and a few other items. Shortly thereafter, Mrs. Cox moved their car to another
area of the parking lot to clear the way for emergency vehicles.

       Mr. Cox spoke with the 9-1-1 operator at first, but because Mr. Cox was frantic and
yelling, Mrs. Cox took the telephone and began to inform the operator about the incident.
The victim’s face was full of blood. One of her arms was contorted in such a way that it



                                             -4-
appeared it may not have been attached to the victim’s body. The victim was breathing but
not consistently. She would, at times, try to catch her breath. The victim’s eyes were open.

       Appellant was frantically running about, saying that he could not believe this was
happening and that he hoped the victim was okay. Appellant informed Mrs. Cox that he and
the victim were arguing when the victim exited the vehicle. Mrs. Cox gave a statement to
Detective Still later that morning. She stated that appellant told her that the victim started
walking immediately after exiting the vehicle, so he shifted the car into reverse and began
backing up without realizing that he ran over the victim. When appellant exited the vehicle,
he observed that the car was on top of the victim. Knowing that he had to move the car, he
got back into the vehicle in order to move it off of the victim’s body.

       Mrs. Cox testified that she advised appellant to collect the victim’s purse and debit
card, which were on the ground, and move the items out of the way for emergency personnel.
Mrs. Cox noted that one of the victim’s shoes was in close proximity to her body, while the
other shoe was farther down the driveway of ORNL Credit Union. She recalled that
someone put the victim’s shoes in the trunk of appellant’s car.

       Mr. Cox testified that he was more concerned about the victim than the appellant. The
victim’s eyes were open and she was gasping for breath. Mr. Cox was anxious for 9-1-1 to
arrive and save the victim’s life. Mr. Cox was worried that the victim might go into shock,
so he gathered jackets from appellant, Mrs. Cox, and their son to cover the victim. As Mr.
Cox was on his knees beside the victim, appellant was running around, hysterical, saying,
“Oh my God, oh my God,” “I need help,” “What have I done?” and “What am I going to
do?” Mr. Cox told appellant to calm down. At some point, Mr. Cox asked appellant to come
over to where the victim was lying and call her name to see if she would respond. The victim
died before emergency personnel arrived on the scene.

       Stacy Foster testified that she was employed as the vice-president supervising the
security and fraud department at ORNL Federal Credit Union. Ms. Foster confirmed that the
victim had an account with the credit union. She provided video footage from the
surveillance cameras fixed on the ATM at the credit union at the time of the victim’s death.
From the angle of the camera at the ATM, one could see approaching headlights. The
camera recorded a customer making an ATM transaction at 6:21 a.m. on March 5, 2008. Ms
Foster identified a second set of headlights in the video footage beginning at 6:22 a.m.
However, neither appellant’s vehicle nor the victim were visible in the footage.

       Steve Still, an investigator with the Knoxville Police Department’s violent crimes unit,
previously served as a fatal accident investigator. Detective Still completed training to
investigate traffic fatalities but was not an accident reconstructionist. He testified that


                                              -5-
accident reconstruction involves formulas and more technical issues, while fatal accident
investigators make determinations based on the evidence at the scene, witness interviews,
and toxicology reports.

        On his way to work on March 5, 2008, Detective Still responded to an incident on
Magnolia Avenue. The police department’s reconstructionists worked the fatalities but often
called investigators to assist in interviewing witnesses. Detective Still’s duty at the scene
was to interview the witnesses. At some point, the status of the incident changed from being
a traffic accident to “possibly something more.” When he arrived on the scene, Detective
Still spoke with officers to obtain a basic understanding of what had happened. As he
walked around the scene and the vehicle, someone pointed out that blood appeared to be
under the front of the car. The spot of blood was located on a guard or cross-piece some
distance farther back from the front of the car. Detective Still would have expected to see
damage to a vehicle that struck a pedestrian but observed no damage to the hood or the trunk
of appellant’s car. He did, however, observe drops of blood, pieces of clothing, and a
brownish mark that appeared to be skin near the sidewalk of the parking lot. Detective Still
asked Mr. Cox to meet him at the police department to give a statement and asked officers
to transport appellant to the department.

        After informing appellant of his Miranda rights, Detective Still interviewed appellant.
Detective Still videotaped and tape-recorded the interview. In appellant’s statement to
Detective Still, appellant said he thought he and the victim might be splitting up. Appellant
and the victim had an issue regarding car payments. Appellant went to work on the morning
of the incident but left so he and the victim could make the car payment. They went to the
ATM together, where they were behind another vehicle. According to appellant, the victim
cursed him, exited their vehicle, retrieved her umbrella from the back of the car, and began
walking toward Magnolia. Appellant backed up the vehicle to see where the victim was
going, then accidentally ran over her. When appellant realized he struck the victim with the
car, he pulled forward to get the car off her. Appellant stated that he did not mean to hit her
and that it was not intentional. Detective Still pointed out to appellant that before he moved
the vehicle, he should have checked underneath to see exactly where the victim was in
relation to the tires. If the victim was between the two axles of the car, her body may have
been in contact with the undercarriage but not necessarily being crushed by it. In that case,
moving the vehicle off her would have injured her further.

       Detective Still did not believe that appellant’s version of the incident matched the
evidence at the scene. Everything that Detective Still witnessed at the scene indicated that
the victim’s body was dragged in the opposite direction of what appellant told him. The
blood under the front of the vehicle, between the front axle and the very front of the car,
indicated that if appellant had indeed backed over the victim as he stated, he would have run


                                              -6-
over her with both axles of the vehicle. Based on the level of jarring that appellant would
have experienced in the car, running over the victim with both axles of the car would have
indicated very aggressive driving. Appellant could offer no explanation for the blood on the
bottom front of the car. Detective Still was troubled by the absence of directional marks
supporting appellant’s version of the incident. Detective Still contacted the Knoxville Police
Department reconstructionists, Ron Trentham and L. B. Steele.

        Detective Still charged appellant with first degree murder. He continued investigating
the case and developing information with the accident reconstructionists. In conducting his
investigation, Detective Still gathered information from the following sources: Anthony and
Stephanie Anderson; the medical examiner, Dr. Darinka Mileusnic-Polchan; Titonia Sawyer;
credit union personnel; a co-worker of appellant; and photographs and evidence from the
credit union scene. Detective Still agreed with the experts’ opinion, based on the evidence
and condition of the vehicle, that the victim’s center of gravity was below the hood or trunk
line of the car. His conclusion indicated that the victim was already on the ground when
appellant ran over her.

       Officer Beth Goodman was an evidence technician with the forensic unit of the
Knoxville Police Department. Her duties involved gathering evidence, documenting crime
scenes, and taking photographs. Officer Goodman collected the victim’s clothing and
personal items from the forensic center where the victim’s body was autopsied. The articles
of clothing included a black “hoodie,” a pair of pants, underwear, a white t-shirt, a denim
jacket, socks, and a sports bra. Officer Goodman also collected the victim’s jewelry and
keys.

        Officer Dan Crenshaw, a senior evidence technician at the Knoxville Police
Department, responded to the scene at ORNL Credit Union. Officer Crenshaw believed that
he was responding to an accident with an injury. When he arrived, he observed a vehicle
with a body partially protruding from the rear of the car. The first thing Officer Crenshaw
did was take photographs. He placed cones, markers, and numbered placards beside the
evidence. He also photographed the inside of the vehicle. Officer Crenshaw saw blood
spatter on the ground and blood on the undercarriage of the car around the radiator. He did
not notice any damage to the hood, trunk or bumpers of the vehicle. Officer Crenshaw took
several other photographs before Officer Joe Cox arrived at the scene to relieve him.

        Lachrisa Clemmons was the victim’s daughter. On the day of the incident, Ms.
Clemmons expected her mother to take her to the orthodontist around noon. Ms. Clemmons
tried repeatedly to reach the victim by telephone. She called the victim’s employer, Food
City, to find out if the victim had gone to work. She learned from an employee that her
mother was not at Food City that day. When Ms. Clemmons was finished at work, she went


                                             -7-
home, changed clothes, and took the trolley to the orthodontist. She persisted in trying to
reach her mother. At 5:00 p.m., Ms. Clemmons arrived back at her home. A few minutes
later, Detective Still knocked on her door and informed her that her mother had been killed
earlier that day. According to Ms. Clemmons, the victim left appellant in January 2008 and
stayed at the Hamilton Inn for about a week. Some time during that week, appellant stayed
with the victim in the hotel while visitors from North Carolina stayed at their apartment. The
victim later returned to live with appellant. Ms. Clemmons had previously seen her mother
with a black eye in November 2006.

        Officer Joe Cox of the Knoxville Police Department was working crime scene detail
in 2008. His duties included taking photographs, collecting samples, collecting evidence,
and analyzing evidence or sending the evidence away to be analyzed. When he arrived at the
scene at ORNL Credit Union, he saw a maroon Infiniti in the parking lot and a deceased
woman on the ground. He photographed the scene and collected blood samples. In addition
to collecting blood spatter evidence, Officer Cox collected a cigarette lighter and a clump of
hair from the scene. He later collected appellant’s white t-shirt and pants. Officer Cox
collected a pair of tennis shoes from the scene. The insole of one of the shoes had been
dislodged, and the shoelace had been torn off. At the scene, Officer Cox noticed that the
trunk of the vehicle was open. He ordered removal of the vehicle by a wrecker that pulled
the vehicle onto the bed of the wrecker. The wrecker transported the vehicle to the police
department’s safety shop where it would be covered and placed on a lift so that investigators
could examine the bottom of the car.

       When officers examined the bottom of the vehicle, Officer Cox saw evidence that
something had cleaned off parts of the underside of the car. He also observed stains that
appeared to be blood on the underside of the car, as well as some other material. He swabbed
the blood stains and forwarded them to the Tennessee Bureau of Investigation. The blood
and “brush off” were located on the front passenger side of the automobile. Officer Cox
swabbed blood stains from the front guard of the car, the rocker panel underneath the
passenger-side door, the tubing guard, and the sway bar guard. He also obtained a blood
swab from a back tire.

        After extensive voir dire by appellant’s counsel, during which Officer Cox offered
information about his training, education, and experience, the trial court allowed Officer Cox
to testify as an expert in blood spatter analysis. Officer Cox testified that he collected a
blood sample from the gutter along Magnolia Avenue and from the sidewalk between
Magnolia Avenue and the credit union. Officer Cox explained that when blood goes straight
down at a ninety degree angle, the blood leaves a round impact mark with small marks called
spines protruding from it. The blood spatter from the gutter was round with a degree of
elongation. The spines pointed in a particular direction, which Officer Cox found useful in

                                             -8-
determining the general direction of motion. The blood spatters were not high velocity; high
velocity spatter would result in very small droplets, or misting. The blood on the sidewalk
had large spines all pointing in the same direction. Officer Cox opined that, based on the
direction of the spines on the blood splatter, the general direction of motion of the victim’s
body was toward the resting location of the victim’s body, or toward the credit union from
the street.

        Officer Ron Trentham was in the motor unit of the Knoxville Police Department but
also served as a traffic accident reconstructionist. After voir dire, the trial court allowed
Officer Trentham to testify as an expert in accident reconstruction. In investigating an
accident where the front of a vehicle struck a pedestrian, Officer Trentham would expect to
see damage to the front bumper of the car and to the leading part of the hood. He would also
expect to see damage on the hood or on the windshield. If a car backed up and struck a
pedestrian, he would expect to see contact on the bumper or trunk deck area. Officer
Trentham considered dirt on a vehicle to be very important in determining whether a vehicle
made contact with another object or person. If he observed damage on a vehicle, it could be
previous damage; however, if something touched a dirty vehicle, the impact of the object that
touched it will disturb the dirt and make a smear. If a vehicle struck a pedestrian below his
or her center of gravity, the body would either be pushed forward or it would go up onto the
hood or the windshield. There should be some evidence, such as disturbed dirt, a dent, or
contact damage. If a car struck a pedestrian above his or center of gravity, the car would
push the pedestrian over and move on top of the body.

        When Officer Trentham responded to the scene at the credit union, he believed he was
investigating a case involving a pedestrian being struck by a vehicle. Upon arrival, Officer
Trentham initially thought that a pedestrian was walking down the sidewalk and was struck
by a car entering the parking lot. At that time, he had not yet seen the front of appellant’s
vehicle. Officer Trentham walked around and surveyed the scene. He noted several drag
marks from the edge of the roadway leading toward the final resting spot of the victim and
the automobile. He also observed the presence of red drag marks that were consistent with
blood. He saw blood drops at the edge of the roadway and blood smear from the sidewalk
onto the asphalt area of the parking lot. Officer Trentham found blue drag marks that were
consistent with the victim’s denim jacket. All of the marks he found started at the edge of
the road and led up to the final point of rest of the victim’s body and appellant’s car. Officer
Trentham located a tan or brown scrape mark that was consistent with the victim’s skin and
the injury pattern the medical examiner found on the victim’s lower body. He observed two
small black marks that were consistent with the victim’s shoes. Again, all of the lines Officer
Trentham observed led from the street toward the credit union to the point where the victim’s
body came to rest. He was able to determine the direction of movement because the marks
were darker at the initial points of impact and faded as they moved forward.

                                              -9-
        Officer Trentham’s examination of appellant’s vehicle indicated that the dirt around
the trunk key had been disturbed. He did not observe any disturbance of dirt around the
occupants’ sides of the vehicle. He determined that something had disturbed the dirt around
the front license plate holder and the lower part of the front bumper. These marks indicated
to Officer Trentham that the victim’s body was struck from the front as the vehicle moved
in a forward direction. He looked under the car with a flashlight and noticed blood on the
frame next to the right front wheel. He also saw blue lines that were consistent with the
victim’s denim jacket. Grease marks and dirt on the victim’s jacket were consistent with her
clothing coming into contact with the right front wheel area of appellant’s car.

       As Officer Trentham completed his initial investigation at the crime scene, he
observed a cigarette lighter and a clump of hair at the point where he believed that the victim
was initially struck at the curb line. He testified that the driver of the wrecker that towed
appellant’s car to the Knoxville city impound lot did not enter the vehicle or turn the steering
wheel. Officer Trentham further insured that no one disturbed any dirt on the body of the
vehicle. He followed the car to the impound lot. He had the car taken into the police garage
and placed on a rack so that investigators could observe any further evidence. As part of the
reconstruction, Officer Trentham measured the vehicle. At the garage, he observed blood
running the length of the vehicle on the passenger side leading to the rear passenger side tire.
Just before the rear tire, he noticed a pattern of lines consistent with the victim’s jacket on
the frame of the car next to the rear tire. While at the garage, Officer Trentham transferred
the victim’s shoes and the clump of hair to Officer Cox.

       Officer Trentham found that the marks on the victim’s left shoe were significant in
that they were consistent with the victim being dragged across the concrete and asphalt.
Officers found the shoestring just beside the driver’s door of the vehicle as it came to rest.
Officer Trentham gave his expert opinion regarding the point of impact between appellant’s
car and the victim. Based on the evidence and location of the blood, skin, and blue fibers,
he gleaned that, from the point where the victim was struck, she was then pushed by the
vehicle. The victim’s skin was transferred to the pavement as a result of her jogging pants
coming down, exposing her hip area to the concrete, and leaving marks. Officer Trentham’s
opinion was that the victim was lying on the ground bleeding at the curb line and that the
point of impact with appellant’s automobile was at the curb line.

       L.B. Steele was assigned to the motor traffic unit of the Knoxville Police Department
and was Officer Trentham’s partner. After voir dire, the trial court qualified Officer Steele
as an expert in accident reconstruction. On the morning of March 5, 2008, Officer Trentham
called Officer Steele and asked him to gather their measuring equipment then proceed to the
crime scene. When he first arrived, Officer Steele believed he was responding to an accident
involving a vehicle striking a pedestrian. In reviewing the evidence, he and Office Trentham

                                              -10-
tried to determine how a pedestrian fatality could have occurred because the evidence
indicated that the victim had been lying on the ground, or at the very least, was lower to the
ground than she was to a standing position. Officer Steele took crime scene measurements
with their equipment and loaded the information into the data storage system. He later
transferred the data to a computer at the police department and made two discs containing
the information. The distance from the first blood drop near the edge of the roadway to the
left front tire at its resting position was 34.91 feet.

        Special Agent Lisa Wessner was a special agent forensic scientist with the Tennessee
Bureau of Investigation (“TBI”) crime laboratory, assigned to the forensic serology and DNA
analysis unit. In the course of this case, she received a DNA sample from the victim, buccal
swabs from appellant, and swabs from appellant’s vehicle taken from a sway bar guard, metal
sheet, right rear tire, front guard and tubing guard. The sample from the sway bar guard
failed to indicate the presence of blood; the remainder of the swabs from the vehicle
contained blood. DNA obtained from the metal sheet, the front guard, and the tubing guard
matched the victim’s DNA profile. Agent Wessner could not obtain a DNA profile from the
rear tire because the DNA was insufficient or degraded. The probability of the DNA
belonging to an individual unrelated to the victim exceeded the current world population.

        Officer Scott Noe with the Knoxville Police Department responded to a domestic call
made by the victim on November 16, 2006. When he arrived, Officer Noe observed that the
victim had a black eye. He transported the victim to the commissioner’s office so she could
sign a warrant against appellant. In the warrant, the victim alleged that she and appellant
argued over bus fare, at which time appellant punched her in the eye. Appellant pled guilty
to the charge.

       The trial court allowed Dr. Darinka Mileusnic-Polchan to testify as an expert witness
in forensics. Dr. Mileusnic-Polchan responded to the crime scene at the credit union, where
she observed the victim in a supine, or face-up, position under the rear bumper of appellant’s
car. After reviewing the scene and taking photographs, Dr. Mileusnic-Polchan performed
the autopsy of the victim the same day. She took additional detailed photographs of the
victim’s clothing. Dr. Mileusnic-Polchan opined that in cases such as this, the existence of
conflicting information makes it necessary for her to document the case very carefully,
because even the smallest finding on the body can prove important in determining what
actually happened. Based on her findings, Dr. Mileusnic-Polchan formed the opinion that
the victim’s manner of death was a homicide.

       In most cases involving a pedestrian accident, Dr. Mileusnic-Polchan would expect
to see injuries to the lower extremities, specifically the calves, knees, and sometimes the
thighs, of the victim. She did not find those injuries on the victim. She examined the


                                             -11-
victim’s body and documented every injury. Dr. Mileusnic-Polchan documented sixty
separate injuries. The victim suffered several head and neck injuries, including linear marks
on the chin consistent with tire marks. An abrasion by the right eyebrow displayed
directionality, indicating that the body was moving against the surface. Dr. Mileusnic-
Polchan found blood stains and hair attached to the shoulder of victim’s jacket, most likely
caused by forced bending of the head over the shoulder.

       Dr. Mileusnic-Polchan noted that the victim’s right clavicle was broken, and the neck
and spine junction was fractured. The fracture was caused by extraordinary force that
separated the head from the neck. The tire marks on the victim’s neck indicated that the
vehicle’s rear tire ran over it. This injury was one of the primary causes of the victim’s death.
The victim also had linear abrasions under and on her right breast. Dr. Mileusnic-Polchan
described the injury to the victim’s breast area as indicating movement of the victim in a
particular direction, and attributed the injury to contact with the front bumper of appellant’s
vehicle. She analyzed a bruise pattern and a burn on the victim’s body and matched the
injuries to a hot part from underneath the car, perhaps part of the exhaust or catalytic
converter.

        The victim’s abdomen sustained a great deal of injury, including “abrasions and
stretch abrasions.” Dr. Mileusnic-Polchan identified a tire track along the victim’s
abdominal abrasions. She stated that the tire marks could only have been made by the front
tires because the rear tires were bald and could not have left those particular indentations.
Dr. Mileusnic-Polchan pointed out a large burn that was over four inches long by two inches
across. The skin from that burn was retrieved from underneath the vehicle. She commented
on an extensive deep bruise on the right thigh that could only be consistent with the tire
crossing the victim’s thigh. The victim’s pelvis was completely crushed, including the
sacrum.

       Dr. Mileusnic-Polchan noted that the victim’s back was relatively clear of injury,
which indicated that she was facing the vehicle with clothing covering her back. The victim
did, however, receive a road rash injury to her back and buttocks. In the sacral area, some
of the victim’s skin was missing. Dr. Mileusnic-Polchan explained that the pattern of the
injury established the direction of movement of the victim’s body.

       As part of her investigation, Dr. Mileusnic-Polchan examined appellant’s vehicle at
the impound lot. She compared the victim’s injuries with the damage to and evidence on
appellant’s vehicle. Dr. Mileusnic-Polchan found that the evidence and victim’s injuries
supported the conclusion that the victim was struck by the front of the vehicle.




                                              -12-
        Dr. Gregory James Davis testified on behalf of appellant as an expert in the field of
forensic pathology. He reviewed all of the evidence collected in the case, together with
reports from the medical examiner and TBI. In scrutinizing Dr. Mileusnic-Polchan’s
testimony, Dr. Davis explained that the term “consistent with” merely implies that physical
evidence could support a particular scenario; the term itself does not mean that the scenario
or story is true. Dr. Davis explained that while the evidence is consistent with the
classification of the victim’s death as a homicide, it is also consistent with other
classifications.

       Based on his review of the evidence, Dr. Davis could not offer an opinion as to
whether appellant intended to inflict harm on the victim, nor could he confirm that the
victim’s injuries were unidirectional. The injuries were consistent with being unidirectional
but were not indicative or diagnostic of them being unidirectional. Dr. Davis disputed Dr.
Mileusnic-Polchan’s finding that the injury on the victim’s face was consistent with being
run over by the tire of the car. If her face had been run over by a car, he would have
expected to find more fractures to the jaw and skull. Dr. Davis believed that the victim’s
death should have been classified as “undetermined” or “not determined.” His view of the
physical evidence was that the evidence was consistent with appellant’s backing over the
victim. The injuries sustained by the victim, specifically the wrist fracture and the abrasions
on both hands, were consistent with her walking away from the vehicle, falling, and being
struck by appellant’s vehicle.

        James Alan Parham, a civil engineer with Parham Engineering Consultants, testified
on behalf of appellant. Mr. Parham’s primary focus was on highway design and
transportation safety. The trial court allowed him to testify as an expert in accident
reconstruction. In preparing for this case, Mr. Parham reviewed all of the evidence, reports,
and photographs. He also visited the scene of the incident on more than one occasion and
examined appellant’s automobile. Mr. Parham generally agreed with many of Officers
Trentham’s and Steele’s findings. However, Mr. Parham opined that the absence of black
scrape marks and scuffs going toward Magnolia Avenue does not rule out the possibility that
the victim’s body was dragged in that direction. Because of the downhill slope of the parking
lot, a body would not offer much resistance to being pushed. Also, the asphalt would offer
less friction force on a body than would the sidewalk.

       Although Mr. Parham agreed that the victim was not standing at the time of impact,
he disagreed with the officers’ findings that the victim was pushed by appellant’s automobile
and dragged until her body was dislodged under the right rear tire. He stated that the police
department did not sufficiently document the vehicle in order for him to determine the
presence of dirt rub on the trunk, hood, or bumpers of appellant’s vehicle. Mr. Parham did
not find the photograph of the front license plate to be conclusive of dirt rub or interaction

                                             -13-
with a person. He did not find dirt rub documented anywhere on the topside of the vehicle
but found dirt rub underneath the vehicle itself. Mr. Parham identified dirt rub on the
undercarriage of appellant’s automobile. He did not believe that the officers’ opinions that
the victim was struck in one direction could be proven by the evidence.

       Mr. Parham testified that his examination of appellant’s car was limited because the
car had been stored outdoors exposed to weather. He disagreed with Officer Steele about the
importance of storing the vehicle under cover, stating that in a low-impact case the data is
very fragile. Mr. Parham believed that one rain incident could compromise the evidentiary
value of the car.

        Mr. Parham placed great value on the location of the victim’s broken shoelace. In his
opinion, the shoelace was broken due to a forceful break, such as a tire pinning the shoelace
to the ground as the body is being dragged. The location of the shoelace indicated to him that
the victim’s body had to be at the point where the shoelace was recovered when it was struck.
The shoelace would not have held such value to him if it were located closer to Magnolia
Avenue or if the body was located beyond the shoelace. Based on the evidence and
appellant’s theory of the incident, Mr. Parham offered the opinion that the physical evidence
was consistent with appellant’s explanation of the incident.

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

                                  C. Facts from Sentencing

        The victim’s daughter, Lachrisa Clemmons, and the victim’s son, Leon Boulanger,
offered victim impact evidence. Each of them testified regarding verbal and physical abuse
that the victim suffered at the hands of appellant. Virginia Thompson, the victim’s mother,
testified that the victim had been a happy child and that as an adult, she was uplifting to other
people. The victim was an optimistic and religious woman who prayed regularly for her
husband and others. At some point, appellant became withdrawn at family functions. Ms.
Thompson also witnessed a decline in the victim’s general disposition. She confronted
appellant once and advised him to pray about his problems instead of hitting the victim, but
he laughed at her.

       Gail Carter met the Cornwells when she worked next door to where they both were
previously employed. Appellant and the victim were not married at the time. The victim was
slow to open up to Ms. Carter about personal issues. The victim’s co-workers, however,
called Ms. Carter on several occasions and reported that appellant struck the victim in their
presence. On one occasion, appellant dragged the victim through the parking lot by her hair.

                                              -14-
Several weeks later, Ms. Carter observed that the victim’s toes were broken. She denied that
appellant inflicted the injuries. On a separate occasion, appellant was beating the victim
when she ran to Ms. Carter’s office. Ms. Carter locked the door. Although the victim did
not want Ms. Carter to call the police, she did so. The victim suffered two black eyes but did
not want to press charges against appellant.

        Ms. Carter worked in the office of a marriage counselor. When the victim told Ms.
Carter that she wanted to marry appellant, Ms. Carter advised her to consider the decision
carefully but that she would ultimately support her decision. Ms. Carter attended the
wedding. Sometime after appellant and the victim were married, the victim wanted to visit
her mother in North Carolina. The victim’s car was not working, so Ms. Carter allowed the
victim to borrow her car with the understanding that appellant was not to drive the car
because he did not have a valid license. After the victim returned, appellant would not return
Ms. Carter’s car. He told her he wanted to buy it. Ms. Carter said she would sell it, but
appellant said he would have to make payments. When Ms. Carter declined, she asked him
for the keys and appellant refused. She obtained a spare set of keys from her desk and drove
her car home.

       Appellant testified at the sentencing hearing. He met the victim in North Carolina.
Appellant had been dealing drugs, and both he and the victim used drugs. He decided that
North Carolina was not a healthy place for him to live, and appellant talked to the victim
about leaving her family and moving to Knoxville. Upon relocating to Knoxville, appellant
and the victim stayed with friends. They both found jobs at the Marriott and moved into an
apartment. They stayed mostly drug-free, except for one mistake he made. In 2006,
appellant and the victim had an argument and he hit her. She filed charges and had him
arrested. The victim went to be with her family in North Carolina but later returned and
posted appellant’s bond. Appellant stated that he promised the victim that he would never
hurt her again. After that, he went to anger management classes and they attended a Bible
study together. Appellant maintained that he kept his promise to the victim and never struck
her again.

      Appellant had a history of violence against women. He assaulted Africa Williams in
1990 and 1991. In 1992 and 1993, he assaulted Tina McBride. Although he began anger
management classes after pleading guilty to the charge involving the victim, he never
completed the classes.

      After hearing testimony and receiving evidence, the court sentenced appellant as a
Range II offender to thirty-five years in prison. Following the trial court’s denial of his
motion for new trial, appellant timely filed this notice of appeal.



                                             -15-
                                         II. Analysis

                               A. Alleged Ferguson Violation

        Prior to trial, appellant filed a motion to dismiss the indictment pursuant to our
supreme court’s Ferguson decision. See generally Ferguson, 2 S.W.3d at 915-17. Appellant
contended that while under the State’s control, his vehicle lost exculpatory evidentiary value
because the State allowed the vehicle to remain outdoors, unprotected, and exposed to the
elements. The importance of the evidence, according to appellant, was that valuable dirt rub
evidence would have been visible at the point of contact on the automobile where it struck
the victim. While the State’s experts testified that they observed dirt rub on the front license
plate of the car and took photographs of the dirt rub, appellant argues that the photographs
did not clearly reflect their observation. Moreover, appellant emphasized the alleged
prejudice inherent in his experts being denied the opportunity to examine both the front and
the rear areas of the automobile to determine if dirt rub was present in either area.

        In Ferguson, our supreme court considered the appropriate “consequences that flow
from the State’s loss or destruction of evidence which the accused contends would be
exculpatory.” Ferguson, 2 S.W.3d at 914. Our supreme court exercised its authority to
“expand the minimum level of protection mandated by the federal constitution,” Burford v.
State, 845 S.W.2d 204, 207 (Tenn. 1992), by rejecting the United States Supreme Court’s
“bad faith” standard in favor of a test that is less onerous on a criminal defendant. Ferguson,
2 S.W.3d at 916. See generally Arizona v. Youngblood, 488 U.S. 51 (1988). The court,
instead,“‘promulgate[d] . . . an analysis in which the critical inquiry is: Whether a trial,
conducted without the [lost or] destroyed evidence, would be fundamentally fair?’” State v.
Coulter, 67 S.W.3d 3, 54 (Tenn. Crim. App. 2001) (quoting Ferguson, 2 S.W.3d at 914). In
Coulter, this court reiterated the State’s general duty to preserve all evidence to allow a
criminal defendant the opportunity for discovery and inspection, but noted that for the
purpose of determining “fundamental fairness,” our supreme court “seemingly cited with
approval” the following standard enunciated in California v. Trombetta, 467 U.S. 479, 488-
89 (1984):

       Whatever duty the Constitution imposes on the States to preserve evidence,
       that duty must be limited to evidence that might be expected to play a
       significant role in the suspect’s defense. To meet this standard of constitutional
       materiality, evidence must both possess an exculpatory value that was apparent
       before the evidence was destroyed, and be of such a nature that the defendant
       would be unable to obtain comparable evidence by other reasonably available
       means.



                                              -16-
Coulter, 67 S.W.3d at 54 (quoting Ferguson, 2 S.W.3d at 917).2 Only if the proof
demonstrates that the State had a duty to preserve the evidence and that the State failed in
that duty, the analysis then shifts to a consideration of the following factors in deciding the
consequences of the State’s breach:

        (1)     The degree of negligence involved;

        (2)     The significance of the destroyed evidence, considered in light of the
                probative value and reliability of secondary or substitute evidence that
                remains available; and

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

Id. (quoting Ferguson, 2 S.W.3d at 917). If, after due consideration of the three factors, the
trial court concludes that a trial without the missing or destroyed evidence would not be
fundamentally fair, the court may order dismissal of the charges. Ferguson, 2 S.W.2d at 917.
“Dismissal is, however, but one of the trial judge’s options.” Id. The trial court may craft a
special jury instruction or grant other appropriate remedies. Id.

        On appeal, appellant argues that the trial court should have dismissed the indictment
against him or granted “other appropriate relief,” including prohibiting the State’s witnesses
from testifying about the presence or absence of dirt rub evidence. Notably, at trial, appellant
asked only for the remedy of dismissal of the indictment. Appellant did not request a special
jury instruction and did not ask the court to limit the testimony of the State’s witnesses. Nor
did he claim the trial court’s failure to do so was error at the hearing on the motion for a new
trial. Appellant is bound by the ground he asserted when making his Ferguson argument in
the trial court. See State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994).
He cannot assert a novel theory or request different relief on appeal. Id. at 635. Inasmuch
as appellant failed to request relief other than dismissal, he has waived his right to other such
relief. See State v. Randy Ray McFarlin, a/k/a Mac Ray McFarlane, No. M2010-00853-
CCA-R3-CD, 2012 WL 76902, at *9 (Tenn. Crim. App. Jan. 9, 2012) (holding that, “[t]o the
extent that the defendant may have claimed relief via Ferguson in any manner that would


        2
          Our court recently discussed this issue and pointed out that panels of this court have determined
that evidence should have been preserved without first finding that its exculpatory value was apparent. State
v. Jerome Sidney Barrett, No. M2010-00444-CCA-R3-CD, 2012 WL 2914119, at *21 (Tenn. Crim. App. July
18, 2012), perm. app. granted, No. M2010-00444-SC-R11-CD (Tenn. Sept. 17, 2012). The Barrett court
criticized the Coulter court's analysis of Ferguson; however, because Coulter is a published opinion, the
Barrett court was bound to follow it. Id. at *22.

                                                    -17-
merely result in the grant of a new trial [rather than dismissal of the indictment], this issue
is waived”), perm. app. denied (Tenn. May 21, 2012).

       Appellant contests the State’s allowing dirt rub and other physical evidence to degrade
from the vehicle while it sat unprotected in the elements. In analyzing the issue of
fundamental fairness, we note that officers observed the dirt rub evidence on the front of the
car. The location of the dirt rub was inculpatory, not exculpatory. Appellant does not
contend that further examination would have revealed dirt rub on the rear of the vehicle,
which would have been exculpatory in nature. He merely asserts that he suffered prejudice
because his experts could not independently examine the vehicle. However, law enforcement
officers testified about the lack of dirt rub evidence on the rear portion of appellant’s
automobile. When “the chances [were] extremely low that preserved samples would have
been exculpatory,” the Due Process Clause of the Fourteenth Amendment does not require
law enforcement agencies to preserve evidence for later use. Trombetta, 467 U.S. at 488-
491. Moreover, “[t]he possibility that . . . [evidence] could have exculpated respondent if
preserved or tested is not enough to satisfy the standard of constitutional materiality in
Trombetta.” Youngblood, 488 U.S. at 56 n.1.

        Furthermore, the evidence was available at trial through comparable means. The
State’s witnesses, including two accident reconstructionists, an evidence technician, and the
medical examiner, each testified that he or she observed what appeared to be dirt rub on the
front license plate of the car and did not observe such evidence on the rear portion of the
automobile. They collectively documented blood spatter and other evidence on the front
portion of the undercarriage, which was consistent with the State’s theory of the case that
appellant struck the victim while traveling in a forward motion. All of the aforementioned
evidence was provided to appellant before the trial. In light of the officers’ initial findings,
all of which tended to inculpate appellant, any potentially exculpatory evidence was not
apparent to agents of the State. For these reasons, we conclude that the vehicle itself did not
possess sufficient evidentiary value to rise to the level of “constitutional materiality.”
Youngblood, 488 U.S. at 56 n.1.

       Even if this court found the evidence to be material, analysis of the three Ferguson
factors would result in no relief. Addressing first the degree of negligence involved,
Ferguson, 2 S.W.3d at 917, we cannot conclude from our review of the record that the State
acted negligently. Law enforcement officers carefully documented all evidentiary aspects
of appellant’s vehicle by photographing dirt rub patterns, photographing the undercarriage
of the vehicle, and obtaining DNA swabs from various points on the vehicle. The only
complaint appellant has with the State’s collection of evidence is that the photograph of the
front bumper does not, in his opinion, reflect the presence of dirt rub. To the extent that
appellant argues there was no dirt rub evidence on the front of the vehicle, the jury received

                                              -18-
photographs of the dirt rub. The jury, as the trier of fact, reviewed the photographs and
determined for itself whether dirt rub was visible in the photographs. In light of the
photographic evidence and DNA testing, all of which was probative and reliable, the ability
to observe the actual dirt remaining on the vehicle months later was insignificant. See id.

       The second prong of the initial inquiry focuses on whether the lost or destroyed
evidence is of such a nature that appellant would be “unable to obtain comparable evidence
by other reasonably available means.” Ferguson, 2 S.W.2d at 917. The State thoroughly
photographed appellant’s vehicle from all angles, including photographs taken of the
undercarriage. Our preceding discussion outlines the procedures utilized by the State in
preserving evidence. Appellant obtained “comparable” evidence through photographic
preservation of the evidence.

        Finally, we conclude that the jury had sufficient evidence by which to sustain
appellant’s conviction, including but not limited to: (1) testimony regarding motive; (2) DNA
testing confirming the victim’s blood on the undercarriage of the vehicle; (3) blood spatter
evidence indicating directionality of the vehicle and the victim’s body; (4) medical testimony
regarding the identification of wound patterns and the mechanisms or parts of the vehicle that
caused them, and (5) photographs of the front of the vehicle license plate holder where
officers observed dirt rub evidence. See id.

        For the foregoing reasons, “to conclude that the [vehicle] possessed exculpatory value
on the basis of the record before this court would constitute an exercise in pure speculation.”
Coulter, 67 S.W.3d at 54-55. The State did not have a duty to preserve the evidentiary value
of the exterior of appellant’s automobile, and even if it did, appellant’s trial was not rendered
fundamentally unfair without this evidence. Therefore, appellant is not entitled to relief on
this issue.

                                    B. Expert Testimony

                                    1. Standard of Review

      Appellant contests the expert testimony of three of the State’s witnesses, medical
examiner Dr. Mileusnic-Polchan, and accident reconstructionists L.B. Steele and Ron
Trentham.

      We begin our analysis with the proposition that admissibility of expert testimony is
governed by the Tennessee Rules of Evidence:




                                              -19-
       If scientific, technical, or other specialized knowledge will substantially assist
       the trier of fact to understand the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702. Our supreme court has further defined the role of the trial court in
assessing the propriety of expert testimony:

       Trial courts act as gatekeepers when it comes to the admissibility of expert
       testimony. Their role is to ensure that an expert, whether basing testimony
       upon professional studies or personal experience, employs in the courtroom the
       same level of intellectual rigor that characterizes the practice of an expert in
       the relevant field. A court must assure itself that the expert’s opinions are
       based on relevant scientific methods, processes, and data, and not upon an
       expert’s mere speculation. The court’s reliability analysis has four general
       inter-related components: (1) qualifications assessment, (2) analytical
       cohesion, (3) methodological reliability, and (4) foundational reliability.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotations
omitted). The supreme court further noted:

       There are certain methods and foundations that, as a matter of law, are
       established for purposes of admissibility as being reliable or unreliable either
       by statute or by having already been assessed for their reliability in a prior
       controlling judicial decision. There are also “ordinary cases” where
       methodological and foundational reliability may be simply assumed in the
       absence of some sufficiently weighty showing by the objecting party that
       warrants a more in-depth inquiry. However, other cases will require trial courts
       to make a more probing inquiry.

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

       The trial court is vested with broad discretion in resolving questions regarding the
admissibility of expert testimony. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007).
On appellate review, we will not disturb a trial court’s decision regarding the admission or
exclusion of expert testimony absent an abuse of discretion. Scott, 275 S.W.3d at 404; see
Stevens, 78 S.W.3d at 832. A trial court abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to the complaining



                                              -20-
party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d
319, 337 (Tenn. 2006)).

                      2. Dr. Darinka Mileusnic-Polchan’s Testimony

        Appellant filed a pre-trial motion requesting disclosure of the opinions to be proffered
by Dr. Mileusnic-Polchan as well as a hearing to determine the admissibility of her opinions.
Following an evidentiary hearing, the trial court determined that her opinions were
admissible. At trial, the State tendered Dr. Mileusnic-Polchan as an expert in the field of
forensic pathology. The court held a jury-out McDaniel hearing to ascertain the reliability
of her testimony. Dr. Mileusnic-Polchan is a board-certified forensic pathologist. She based
her opinions on her personal observations at the crime scene; the evidence, including her
examination of the vehicle; reports; witness statements; a professional treatise; and the
autopsy she conducted. Dr. Mileusnic-Polchan had been accepted as an expert witness in
other cases and permitted to testify in court. Following the hearing, the trial court ruled that
Dr. Mileusnic-Polchan could testify due to her expertise in the field of forensic pathology.
Appellant did not object to Dr. Mileusnic-Polchan’s being qualified as an expert by the court.

       We first note that in the sixty-six pages of the State’s direct examination of the
witness, appellant lodged four objections, one to the form of a question. He objected to the
following three opinions: 1) that the front of appellant’s vehicle had an imprint of the denim
jacket victim was wearing when she was struck; 2) that the injury to the victim’s chest was
caused by the front license plate holder of appellant’s car; and 3) that there was a part on the
underneath side of the automobile that resembled a cheese grater and that the wound pattern
on the victim indicated forward movement of the car because of the skin was stretched and
not cut.

       We must agree with appellant that Dr. Mileusnic-Polchan’s testimony regarding the
denim jacket leaving an imprint on the front of appellant’s vehicle was not a proper subject
for expert testimony by a forensic pathologist. We are inclined to view this as an expert’s
offering an opinion on a matter that would not substantially assist the trier of fact. The State
admitted several photographs of all angles of appellant’s automobile. A lay witness could
make the comparison as easily as an expert witness. Any error in this regard, however, is
harmless. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and
otherwise appropriate shall not be set aside unless, considering the whole record, error
involving a substantial right more probably than not affected the judgment or would result
in prejudice to the judicial process.”).

       Appellant’s remaining two objections involve Dr. Mileusnic-Polchan’s testimony
about the manner of infliction of a wound or injury. We conclude that this is a proper subject

                                              -21-
upon which a medical examiner may offer testimony. To the extent that appellant argues
herein that said opinions constituted Dr. Mileusnic-Polchan’s testifying outside of her area
of expertise, we conclude otherwise. Her testimony did not involve accident reconstruction
or engineering, as appellant advances. Rather, she testified about the interaction between the
automobile and the victim’s body.

       On appeal, appellant raises new challenges to the testimony of Dr. Mileusnic-Polchan
on two bases: 1) that Dr. Mileusnic-Polchan was biased in favor of the State; and 2) that Dr.
Mileusnic-Polchan testified outside of her area of expertise by testifying with regard to blood
spatter. Although appellant failed to contemporaneously object to the testimony on these
grounds, he raised the issue in his motion for new trial and on appeal. This court has held
waiver to be appropriate in such circumstances. See State v. Robert Lee Mallard, No.
M1999-00336-CCA-R3-CD, 1999 WL 1209523, at *1 (Tenn. Crim. App. Dec. 17, 1999).

        While plain error review is available to this court as a tool by which to review
appellant’s new challenges, he does not request plain error review of this issue, and we do
not discern a basis for such under the facts of this case. State v. Gary Thomas Reed, No.
E2009-02238-CCA-R3-CD, 2011 WL 1842711, at *5 (Tenn. Crim. App. May 12, 2011),
perm. app. denied (Tenn. Aug. 24, 2011); see Tenn. R. App. P. 36(a) (“Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”). Moreover, this court has previously held that a forensic pathologist may
offer testimony regarding blood spatter analysis. State v. Wayne Robert Wait, No. E2010-
01212-CCA-R3-CD, 2011 WL 5137178, at *9 (Tenn. Crim. App. Oct. 28, 2011) (holding
that blood spatter testimony is within the purview of a forensic pathologist). We further find
no error in the expert’s opinion that the manner of death was homicide. See, e.g., State v.
Ayers, 200 S.W.3d 618, 623 (Tenn. Crim. App. 2005) (holding that when the foundation of
an expert’s opinion is reliable, expert can testify that manner of death was homicide). But
see State v. Ward, 138 S.W.3d 245, 268 (Tenn. Crim. App. 2003) (disallowing expert
testimony that manner of death was homicide when foundation of opinion involved the
unreliable “rule of three” attributing homicide as cause of death when victim is the third child
under care of a single caretaker to suffer an undetermined cause of death). Appellant is not
entitled to relief on this issue.

                         3. Officers L.B. Steele and Ron Trentham

       Appellant next argues that the trial court improperly qualified Officers L. B. Steele
and Ron Trentham as experts in the field of accident reconstruction. Appellant filed a pre-
trial motion to obtain the credentials of both witnesses and the opinions to be rendered by
each of them at trial. During a pre-trial motion hearing, appellant contested the qualifications

                                              -22-
of Joe Cox and L.B. Steele to testify as experts. He did not address Officer Ron Trentham
as a possible expert witness. The State and appellant agreed that the field of accident
reconstruction is a generally accepted scientific field and is appropriate for expert testimony.
The State disclosed the officers’ reports to appellant in advance of trial. Although the trial
court did not hold a pre-trial hearing to ascertain the witnesses’ qualifications and credentials,
the court permitted appellant to ask questions on voir dire before it accepted the witnesses
as experts.

                         a. Qualifications of Officer Ron Trentham

       Following his voir dire of Officer Trentham, appellant lodged no objection to the
court’s accepting him as an expert witness. In light of appellant’s failure to object to the trial
court’s ruling allowing Officer Trentham to testify as an expert in the field of accident
reconstruction, this issue is waived. Again, while plain error review is available to this court
as a tool by which to review appellant’s new challenges, he does not request plain error
review of this issue, and we do not discern a basis for such under these particular facts.
Gary Thomas Reed, 2011 WL 1842711, at *5. Appellant is not entitled to relief on this issue.

                           b. Qualifications of Officer L. B. Steele

       Following his voir dire of L. B. Steele, appellant lodged an objection to the court’s
accepting Officer Steele as an expert witness. In ruling on the objection, the court stated that
the witness would likely testify about documentation and measurements. Appellant
rescinded his objection to the witness’s testimony if it were limited in scope as the court
expected. The court reserved ruling on appellant’s objection in the likelihood that Officer
Steele offered objectionable expert opinions.

        As the trial court anticipated, Officer Steele’s testimony was factual in nature. He did
not offer any “expert” opinions regarding his synthesis of the evidence. Officer Steele’s
testimony indicated that he obtained measurements at the crime scene, loaded the information
into the data storage system, transferred the data to a computer at the police department, and
then made two discs containing the information. Appellant must not have found Officer
Steele’s testimony objectionable, as he did not renew his objection or ask the trial court for
a ruling on the issue. For these reasons, we find that appellant waived his complaint for our
review and decline to employ a plain error analysis. See Gary Thomas Reed, 2011 WL
1842711, at *5.




                                              -23-
                    c. Substance of Accident Reconstructionists’ Testimony

       In his brief, appellant contests the accident reconstructionists’ testimony as
demonstrating “a lack of expertise” in failing to adequately photograph the vehicle, failing
to protect the automobile from the elements, and failing to account for the slope of the
driveway at the credit union. The State responds that the experts’ opinions that are
disagreeable to appellant do not render them unqualified to offer said testimony. We agree.

       Appellant presented his own accident reconstructionist as an expert to rebut and refute
many of the State’s experts contentions and opinions. His expert addressed the points of the
State’s experts testimony of which appellant complains on appeal. “‘[T]he jury is not bound
to accept expert testimony in preference to other testimony, and must determine the weight
and credibility of each in the light of all the facts shown in the case.’” Dellinger, 279 S.W.3d
at 292 (quoting Sparks, 891 S.W.2d at 616). “‘[T]he weight to be given [expert testimony]
is a question for the jury under careful instruction of the trial judge.’” State v. Ayers, 200
S.W.3d 618, 223 (Tenn. Crim. App. 2005) (quoting Mullendore v. State, 191 S.W.2d 149,
152 (1945)). Accrediting the verdict of a properly instructed jury, we discern no error with
respect to the qualifications of the expert witnesses or the opinions they rendered at trial.

              C. Trial Testimony of Anthony Anderson and Stephanie Anderson

       Appellant raises two issues pertaining to the trial testimony of Anthony Anderson and
Stephanie Anderson. He first contends that the State suppressed evidence, namely audiotape
recordings of interviews with the witnesses, and that the trial court erred in allowing the State
to present their testimony at trial.

                                  1. Alleged Brady Violation

       Appellant argues that the State violated the tenets of Brady v. Maryland, 373 U.S. 83
(1963), by withholding exculpatory or impeaching evidence until two days prior to trial. The
evidence in question consists of audiotapes of interviews with Anthony Anderson and
Stephanie Anderson. The State’s Brady violation was further compounded, asserts appellant,
by the trial court’s allowing the witnesses to testify despite the State’s alleged error.

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

          There are three components of a true Brady violation: The evidence at issue
          must be favorable to the accused, either because it is exculpatory, or because



                                               -24-
       it is impeaching; that evidence must have been suppressed by the State, either
       willfully or inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Although the inconsistencies among Mr.
Anderson’s statements to law enforcement, his testimony at the preliminary hearing, and his
trial testimony are minute, the audiotapes were arguably favorable to appellant in that they
could have been used to impeach Mr. Anderson’s trial testimony.

       However, the second and third components of the Strickler standard are not
established by the facts of this case. This court has previously addressed the difference
between delayed disclosure of evidence and absolute non-disclosure of evidence:

       Indeed, when there has been a delayed disclosure of evidence, as opposed to
       a complete non-disclosure, Brady is normally inapplicable unless the delay
       itself causes prejudice. When there has been a delayed disclosure, as opposed
       to a non-disclosure, the appellant must establish that the delayed disclosure
       prevented him from using the disclosed material effectively in preparing and
       presenting his case.

       The petitioner has failed to show how, or even allege, the delay in receiving
       th e materials . . . prejudiced his case.

Norris E. Ray v. State, No. W2010-01675-CCA-R3-PC, 2011 WL 5996037, at *18 (Tenn.
Crim. App. Nov. 30, 2011) (internal citations omitted), perm. app. denied (Tenn. Apr. 24,
2012). Our holding in Norris E. Ray is dispositive of this issue. Appellant has neither
alleged nor proven that the delay in the State’s production of the audiotapes prejudiced his
case in any way. Our case law has not expanded the meaning of “suppression” for the
purposes of a Brady violation to include late disclosure wherein appellant suffered no
prejudice. As such, appellant has not demonstrated a “true Brady” violation. Strickler, 527
U.S. at 281-82. The trial court properly permitted the witnesses to testify.

                          2. Tennessee Rule of Evidence 404(b)

      The State proffered the testimony of appellant’s neighbors Anthony and Stephanie
Anderson. Pursuant to appellant’s objection, the trial court held a 404(b) hearing to
determine the admissibility of their testimony. Tenn. R. Evid. 404(b).




                                            -25-
       Rule 404(b) provides:

       Other Crimes, Wrongs, or Acts.—Evidence of other crimes, wrongs, or acts
       is not admissible to prove the character of a person in order to show action in
       conformity with the character trait. It may, however, be admissible for other
       purposes. The conditions which must be satisfied before allowing such
       evidence are:

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

       (2)    The court must determine that a material issue exists other than conduct
              conforming with a character trait and must upon request state on the
              record the material issue, the ruling, and the reasons for admitting the
              evidence; and

       (3)    The court must exclude the evidence if its probative value is
              outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Possible “other purposes” for which evidence of other crimes,
wrongs or acts may be admitted include identity (including motive and common scheme or
plan), intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b), Advisory Comm’n
Commt.

        Thus, to satisfy the requirement of relevancy, the first inquiry by the trial court must
be whether “‘a material issue exists other than conduct conforming with a character trait.’”
State v. Cary, 922 S.W.2d 511, 514 (Tenn. 1996) (quoting State v. Rickman, 876 S.W.2d
824, 829 (Tenn.1994)). Upon the court’s satisfaction of the existence of a material issue,
the trial court must then weigh the proffered evidence to determine whether the probative
value outweighs the danger of unfair prejudice to the defendant. Cary, 922 S.W.2d at 514
(citing Rickman, 876 S.W.2d at 829). The trial court must finally find that appellant
committed the other crimes, wrongs, or acts by clear and convincing evidence. Id. (citations
omitted).

        When it substantially complies with the procedural requirements of Rule 404(b), the
trial court’s determination of admissibility is entitled to deference on appeal. State v. Gilley,
297 S.W.3d 739, 758 (Tenn. 2008); see State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
In reviewing a trial court’s ruling on 404(b) evidence, an appellate court may not disturb the
lower court’s ruling absent an abuse of discretion. Gilley, 297 S.W.3d at 758; State v.
Thacker, 164 S.W.3d 208, 239 (Tenn. 2005).



                                              -26-
       The substance of Anthony Anderson’s testimony was that he heard appellant yell
obscenities at his wife and threaten to kill her. Stephanie Anderson’s testimony recounted
her overhearing appellant’s argument with the victim and his calling the victim profane
names. Following the jury-out proffers, the trial court determined that their testimony was
relevant to the material issue of appellant’s intent and motive. The trial court found that the
probative value of the evidence outweighed the potential for unfair prejudice. Finally, the
court found by clear and convincing evidence that appellant committed the acts to which the
Andersons testified.

        Over the State’s objection, the trial court disallowed testimony by Mrs. Anderson that
she heard victim tell appellant, “Carlos, you would be that stupid to kill me and sit in the jail
cell the rest of your life? You’re stupider than what I think you are.” Clearly the trial court
followed the procedural mandates of 404(b) and Tennessee case law in ascertaining the
admissibility of the proffered testimony and erred on the side of caution in disallowing
questionable evidence. In light of the trial court’s substantial compliance with the procedural
requirements, we defer to the trial court’s ruling. The trial court did not abuse its discretion
in admitting the testimony of Anthony and Stephanie Anderson.

                               3. Failure to Declare a Mistrial

        Although the trial court disallowed Mrs. Anderson from testifying that she heard the
victim state, “Carlos, you would be that stupid to kill me and sit in the jail cell the rest of
your life? You’re stupider than what I think you are,” the court did not issue said ruling until
trial was well underway. The prosecutor had already used the comment in her opening
statement. Her remarks to the jury did not elicit an objection from appellant. During trial,
upon receiving the trial court’s ruling excluding this testimony, appellant moved for a
mistrial. See State v. J.C. Fair and Krederick Fair, No. W2007-00730-CCA-R3-CD, 2009
WL 2501991, at *15 (Tenn. Crim. App. Aug. 14, 2009) (holding that “[d]espite the absence
of a contemporaneous objection, [appellant] did move for a mistrial”), perm. app. denied
(Tenn. Feb. 22, 2010). Thus, appellant preserved this issue for our review.

        A trial court may declare a mistrial if it appears that some matter has occurred which
would prevent the jury from reaching an impartial verdict. Arnold v. State, 563 S.W.2d 792,
794 (Tenn. Crim. App. 1977). A trial court should only declare a mistrial in criminal cases
where a manifest necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443
(Tenn. Crim. App. 1991). A mistrial is appropriate “when a trial cannot continue or a
miscarriage of justice would result if it did.” State v. McPherson, 882 S.W.2d 365, 370
(Tenn. Crim. App. 1994). This court will review the trial court’s decision to grant or deny
a mistrial for abuse of discretion. See State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998)
(citing State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990)). The party requesting the mistrial

                                              -27-
bears the burden of establishing the necessity for it. State v. Williams, 929 S.W.2d 385, 388
(Tenn. Crim. App. 1996).

        In ruling on appellant’s motion for a mistrial, the trial court stated:

        This is a–this is an insignificant–in the overall scheme of this trial and the
        evidence that’s come into this trial, this is insignificant. . . . We’ve got all
        kinds of physical proof. We’ve got all kinds of eyewitness testimony. We’ve
        got the statement of the defendant. We’ve got expert proof . . .whether or not
        that–those eight words were spoken or not spoken is not going to make a
        difference in this trial, period.

        Clearly, in light of the evidence the State had developed up to that point of the trial,
the court did not believe that the prosecutor’s statement during her opening remarks would
result in a miscarriage of justice.

         Our 2008 decision in State v. Willie R. Dyer is instructive on this issue. State v. Willie
R. Dyer, No. M2007-02397-CCA-R3-CD, 2008 WL 4949266 (Tenn. Crim. App. Nov. 19,
2008), perm. app. denied (Tenn. April 27, 2009). In Dyer, appellee 3 lodged a pre-trial
objection to the introduction of blood alcohol concentration levels, claiming a problem with
the chain of custody. Willie R. Dyer, at *1. The trial court denied the motion at that time but
warned the State that if it mentioned the blood alcohol concentration level in its opening and
the court later deemed the evidence inadmissible, the court would order a mistrial with
prejudice. Id. Despite the trial court’s admonition, the State nonetheless mentioned the
blood alcohol concentration level in its opening statement. Id. During trial, the court
conducted a jury-out hearing regarding the evidence. Id. at *2. After hearing testimony at
trial from officers and agents from TBI, the trial court excluded the evidence. Id. The trial
court ultimately ordered a mistrial.

       On appeal, after holding that the trial court erred in its exclusion of the blood
concentration evidence, this court then considered whether the trial court’s granting of a
mistrial was appropriate. Id. at *6. Applying the “manifest necessity” standard, we held:

        We agree with the State that there was no manifest necessity for a mistrial.
        Having excluded from evidence the results of Appellee’s blood alcohol test,
        the trial court could have instructed the jury that the opening statement of the


        3
         The procedural history of the Dyer case is that defendant Dyer moved for a mistrial, which the trial
court granted. The State appealed, thus, for our discussion of the case, the State is appellant and the
defendant is appellee.

                                                    -28-
       prosecutor is not evidence and that the panel should not consider the reference
       to the test results as such. This is typically the manner in which references in
       opening statements to evidence that is later excluded is handled.

Id. at *6.

        We agree with the rationale employed by the Willie R. Dyer court. Although appellant
did not request a special curative instruction, the trial court charged the jury, “The statements,
arguments, and remarks of the attorneys are intended to help you in understanding and
applying the law, but they are not evidence. You should disregard any statements made that
you believe are not supported by the evidence.” Jurors are presumed to follow the
instructions given to them by the trial court. State v. Smith, 893 S.W.2d 908, 914 (Tenn.
1994). It is noteworthy that in the instant case, the State was not forewarned of the
possibility of mistrial if it mentioned evidence in its opening statement that the court later
found to be inadmissible. Following our precedent in Willie R. Dyer, we hold that the trial
court did not abuse its discretion in denying appellant’s motion for a mistrial.

                       D. Domestic Violence Affidavit of Complaint

       The court held a jury-out hearing to discuss the admissibility of evidence of the
victim’s prior injuries. The parties raised three separate instances: 1) the victim’s daughter
returned home from a trip and observed her mother with fourteen stitches on her face and two
broken toes but did not have personal knowledge about how the victim received the injuries;
2) the victim sustained an injury to her arm at the hands of appellant but reported to the
hospital that she injured her arm at work and no one could connect appellant with the injury;
and 3) the victim signed an affidavit for a warrant accusing appellant of domestic violence,
to which appellant pled guilty.

        Questions regarding the admissibility of evidence rest within the sound discretion of
the trial court, and this court will not disturb the trial court’s ruling absent of a clear showing
of abuse. State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A trial court abuses its
discretion when it applies an incorrect legal standard or reaches an illogical or unreasonable
conclusion that causes an injustice to the complaining party. Ruiz, 204 S.W.3d at 778 (citing
Howell, 185 S.W.3d at 337).

       In discussing the evidentiary issues pertaining to the victim’s various injuries,
appellant argued to the court that if it were to conduct a 404(b) analysis of the first two
instances, the evidence would be deemed highly prejudicial. Tenn. R. Evid. 404(b). Without
necessity of a hearing, the trial court excluded the first two allegations of injuries. The court,
however, ruled that the State would be allowed to introduce evidence of the domestic

                                               -29-
violence warrant because appellant pled guilty to it. By entering a guilty plea, appellant
admitted the allegations, thus transforming the allegations into an admission.

       Appellant did not request a 404(b) hearing on the admissibility of the warrant. In fact,
appellant agreed that the warrant was admissible at trial. The State introduced the warrant
through the testimony of the responding officer, Scott Noe. Officer Noe testified with regard
to receiving the call, interviewing the victim, and observing her injuries. He then read the
summary aloud to the jury. Appellant’s complaint on appeal is that the court erred by
allowing the police officer to read the narrative segment of the affidavit to the jury, to which
appellant contemporaneously objected at trial. In his brief, appellant asks this court to
employ a 404(b) analysis with regard to the officer’s reading of the affidavit, not to the
court’s admission into evidence of the warrant itself.

       We first note that because appellant failed to request a 404(b) jury-out hearing when
the officer first began to read the warrant aloud, appellant has waived his right to appellate
review of this issue. State v. Undray Luellen, No. W2009-02327-CCA-R3-CD, 2011 WL
2557010, at *5 (Tenn. Crim. App. June 27, 2011), perm. app. denied (Tenn. Oct. 18, 2011).
Moreover, we fail to discern how application of Rule 404(b) would have precluded the
reading of the warrant at trial or would entitle appellant to relief in this court. Appellant did
not object to the State’s introduction of the domestic violence warrant. The warrant itself
was entered into evidence through Officer Noe. The warrant was not redacted in any form,
nor did appellant request redaction. It is axiomatic that the jury would receive the warrant
and have the opportunity during deliberations to read the content thereof. Appellant’s
attempt to make the comparison between the jury’s opportunity to read the warrant and the
jury hearing the language of the warrant from the officer results in a distinction with no
practical difference. The trial court did not abuse its discretion in allowing the police officer
to read a segment of the warrant that would soon be in the jury’s hands.

                                E. State’s Closing Argument

       In its closing argument, the State advanced its theory of the case by arguing to the jury
that appellant punched the victim in the face and knocked her to the ground before running
over her with his vehicle. Appellant claims error, stating that there was no evidence to
support the State’s theory and that the argument constituted “inflammatory speculation.”

       Our supreme court has aptly noted that “[c]losing arguments in criminal cases have
a ‘rough and tumble quality’ about them.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008)
(quoting State v. Skakel, 888 A.2d 985, 1060-61 (2006)). The court further held:




                                              -30-
       A criminal conviction should not be lightly overturned solely on the basis of
       the prosecutor’s closing argument. An improper closing argument will not
       constitute reversible error unless it is so inflammatory or improper that it
       affected the outcome of the trial to the defendant’s prejudice. When called
       upon to review the propriety of a prosecutor’s closing argument, the court
       should consider: (1) the conduct at issue in light of the facts and circumstances
       of the case, (2) the curative measures undertaken by the trial court and the
       prosecution, (3) the intent of the prosecutor in making the improper argument,
       (4) the cumulative effect of the improper argument and any other errors in the
       record, and (5) the relative strengths and weaknesses of the case.

       Trial courts have significant discretion to control closing arguments.
       Ordinarily, counsel must object contemporaneously to a perceived improper
       argument. However, when flagrantly improper arguments are made, the trial
       court, with or without objection, should step in and take proper curative action.
       Some arguments may be so exceptionally flagrant that they constitute plain
       error and provide grounds for reversal even if they were not objected to.

Banks, 271 S.W.3d at 131-32 (internal citations and quotations omitted). While we would
ordinarily employ an abuse of discretion standard of review in determining whether the trial
court allowed the prosecutor too much latitude during closing argument, appellant
acknowledges that he failed to contemporaneously object to the comment by the prosecutor.
State v. Hall, 976 S.W.2d 121, 157 (Tenn. 1998) (citing State v. Sutton, 562 S.W.2d 820, 823
(Tenn. 1978)). Our analysis is thus limited to a review for plain error.

        Closing arguments that do not elicit an objection warrant reversal only in exceptional
circumstances. Banks, 271 S.W.3d at 132 n. 30 (citing United States v. Smith, 508 F.3d 861,
864 (8th Cir. 2007)). We adhere to the principle that “‘fleeting comments that passed without
objection during . . . closing argument in the trial court should not be unduly magnified when
the printed transcript is subjected to painstaking review in the reflective quiet of an appellate
judge’s chambers.’” Id. (quoting United States v. Mullins, 446 F.3d 750, 758 (8th Cir.
2006)).

        This court has previously analyzed a prosecutor’s closing argument under the “plain
error” standard of review. State v. Gann, 251 S.W.3d 446, 462 (Tenn. Crim. App. 2007). This
court characterized the State’s closing as an “argument on the defendant’s character, the
brutal nature of the crime, and the strategy of the defense” and opined that the statements
“were improper, inflammatory, and utterly indefensible as they violate nearly every rule
established for proper closing argument.” Gann, 251 S.W.3d at 462. We found that the
prosecutor’s comments were intentional, in light of having been previously cautioned by the

                                              -31-
supreme court to “temper” his closing arguments. Id. The State’s comments were so
egregious that this court stated it would have reversed appellant’s convictions had counsel
objected appropriately. Id.

        Even so, in Gann this court was not convinced that “a substantial right of the accused
was adversely affected” or that “consideration of the issue is necessary to do substantial
justice. Id. We also noted that the standard contained in Tennessee Rule of Criminal
Procedure 52, “error that affects substantial rights” has been construed as “error with a
prejudicial effect on the outcome of a judicial proceeding.” Id. at 462-63 (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)).

         Appellant acknowledges that he did not contemporaneously object to the State’s
closing argument but insists that “[n]evertheless, trial courts have a duty to restrict any
improper argument.” Appellant fails to address, much less establish, the factors supporting
a finding of plain error. We decline to infer that appellant is invoking this court’s authority
to conduct a plain error review, nor do we discern a basis for such under the facts of this
case. Gary Thomas Reed, 2011 WL 1842711, at *5; see Tenn. R. App. P. 36(a) (“Nothing
in this rule shall be construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”). Appellant is not entitled to relief on this issue.

                                     F. Sentencing Issues

       Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure states that an appellant’s
brief shall contain the following with respect to an argument:

       (A)     the contentions of the appellant with respect to the issues presented, and
               the reasons therefor, including the reasons why the contentions require
               appellate relief, with citations to the authorities and appropriate
               references to the record (which may be quoted verbatim) relied on; and

       (B)     for each issue, a concise statement of the applicable standard of review
               (which may appear in the discussion of the issue or under a separate
               heading placed before the discussion of the issues)[.]

Tenn. R. App. P. 27(a)(7)(A)-(B). Moreover, Rule 10(b) of the Rules of the Court of
Criminal Appeals reads, “Issues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this Court.” Appellant’s
raises two arguments pertaining to sentencing errors. While appellant cites to the record,
neither argument contains a statement of the applicable standard of review or citation to any

                                              -32-
legal authority. The sentencing issues raised in appellant’s brief are deemed waived. If we
reviewed the sentencing issues, we would nonetheless find no error.

                                   1. Standard of Review

        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on the mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; and (7) any statement the defendant makes on
his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann.
§§ 40-35-102, -103, -113, -114, -210(b) (2010). “The sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(4) (2010).

      When imposing a sentence within the appropriate range of punishment for a
defendant,

       the court shall consider, but is not bound by, the following advisory sentencing
       guidelines:

       (1)    The minimum sentence within the range of punishment is the sentence
              that should be imposed, because the general assembly set the minimum
              length of sentence for each felony class to reflect the relative
              seriousness of each criminal offense in the felony classifications; and

       (2)    The sentence length within the range should be adjusted, as appropriate,
              by the presence or absence of mitigating and enhancement factors set
              out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210 (2010). From this, “the trial court is free to select any
sentence within the applicable range so long as the length of the sentence is ‘consistent with
the purposes and principles of [the Sentencing Act].’” State v. Carter, 254 S.W.3d 335, 343
(Tenn. 2008) (quoting Tenn. Code Ann. § 40-35-210(d)).

      Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
minimum sentence and rendered enhancement and mitigating factors advisory only. See
Tenn. Code Ann. §§ 40-35-114, 40-35-210(c) (2010). The 2005 amendments set forth

                                             -33-
certain “advisory sentencing guidelines” that are not binding on the trial court; however, the
trial court must nonetheless consider them. See id. § 40-35-210(c). Although the application
of the factors is advisory, a court shall consider “[e]vidence and information offered by the
parties on the mitigating and enhancement factors in §§ 40-35-113 and 40-35-114.” Id. § 40-
35-210(b)(5). The trial court must also place on the record “what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, to ensure fair and
consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing
factors is left to the sound discretion of the trial court. Carter, 254 S.W.3d at 345. The burden
of proving applicable mitigating factors rests upon appellant. State v. Mark Moore, No.
03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The
trial court’s weighing of the various enhancement and mitigating factors is not grounds for
reversal under the revised Sentencing Act. Id. at 345 (citing State v. Devin Banks, No.
W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007),
aff'd as corrected, 271 S.W.3d 90 (Tenn. 2008)).

       Additionally, when a trial court orders a sentence involving confinement, the court
should consider whether: (A) “confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;” (B) “confinement is necessary to
avoid depreciating the seriousness of the offense” or to “provide an effective deterrence to
others likely to commit similar offenses;” or (C) less restrictive measures have been
frequently or recently applied to defendant unsuccessfully. Tenn. Code Ann. § 40-35-103(1)
(2010).

         When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, ___ S.W.3d ___, No.
E2011-00005-SC-R11-CD, 2012 WL 2012 WL 4380564, at *17 (Tenn. Sept. 26, 2012). If
a trial court misapplies an enhancing or mitigating factor in passing sentence, said error will
not remove the presumption of reasonableness from its sentencing determination. Id. at 17.
This Court will uphold the trial court’s sentencing decision “so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in compliance
with the purposes and principles listed by statute.” Id. Moreover, under such circumstances,
appellate courts may not disturb the sentence even if we had preferred a different result. See
State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party challenging the sentence
imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn.
Code Ann. § 40-35-401 (2010), Sentencing Comm'n Cmts.; State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).




                                              -34-
                   2. Trial Court’s Finding as to Range of Punishment

       Appellant maintains that the trial court erred in accepting evidence of prior
convictions in the form of a certified packet of information from North Carolina, commonly
known as a “pen pack.” He claims that the evidence is unreliable because it does not contain
sufficient identifying information such as docket numbers and dates of convictions. We
disagree.

       The certified packet included copies of photographs/mug shots, fingerprints, and
copies of the judgments of conviction, including dates of offenses. The presentence report
further detailed appellant’s lengthy criminal history, which also included docket numbers,
dates of offenses, and dates of dispositions.

       In reviewing the propriety of a trial court considering prior convictions that are not
established by certified copies of judgments, this court reasoned:

       Under the Tennessee Rules of Evidence, properly certified copies of judgments
       of conviction or of other official records showing such convictions would be
       admissible as an exception to the hearsay rule of exclusion. See Tenn. R. Evid.
       803(22), 901 and 902. It is such a document that the defendant claims should
       have been used in this case. However, by T.C.A. § 40-35-209(b) allowing
       “reliable hearsay” other than that allowed by the rules of evidence, the
       legislature apparently did not intend such a restriction. Further, although
       “certified copies of convictions” are included in § 40-35-209(b) as an explicit
       example of reliable hearsay, we do not read the statute to mean that use of a
       certified copy is the only admissible documentary method of proving the
       existence of a conviction for sentencing purposes under a preponderance of the
       evidence standard.

       In this respect, we do not believe that the legislature contemplated that a trial
       court must exclude from the evidence or refuse to consider information about
       prior convictions solely because it is only contained in a presentence report.
       Unless the parties agree to a specific sentence in a felony case, a presentence
       investigation must be conducted and a report made to the trial court. T.C.A. §
       40-35-205(a) and (d). The report must contain the defendant’s record of prior
       convictions. T.C.A. § 40-35-207(a)(4). At the conclusion of a sentencing
       hearing, in determining an appropriate sentence, the trial court must consider
       the presentence report and the sentence is to be based in part upon that report.
       T.C.A. § 40-35-210(b)(2) and (g).



                                             -35-
       Obviously, these statutes contemplate the use of presentence investigative
       procedures which assure the acquisition of reasonably reliable information and
       it is incumbent upon the trial court to insure that such procedures are used.
       However, we see little problem in concluding that a trial court is in the best
       position to know the procedures used by presentence officers in his or her
       court and is entitled to rely on such a report’s contents, absent a showing that
       the report is based upon unreliable sources or is otherwise inaccurate. Such a
       showing may occur through the report, itself, or through other evidence
       submitted at the sentencing hearing.

State v. Richard J. Crossman, No. 01C01-9311-CR-00394, 1994 WL 548712, at *5-6 (Tenn.
Crim. App. Oct. 6, 1994).

        Based on this rationale, we conclude that the trial court’s reliance on certified
documents from North Carolina and the presentence report was proper. Both the documents
from North Carolina and the presentence report contained identifying information such as
docket numbers, dates of offenses, dates of conviction, and sentences imposed. The
information was sufficient for the court to ascertain which felonies could properly be
considered. As evidence thereof, the trial court excluded one of the felony drug convictions
because it bore the same offense date as another conviction. The evidentiary record
establishes that appellant had at least two requisite felony convictions in his criminal history
to satisfy the statutory requirement for sentencing as a Range II offender. While some of
appellant’s convictions are listed in the presentence report without corresponding
documentation from North Carolina, the two sources of information taken together provide
a comprehensive criminal history on which the trial court properly relied in sentencing
appellant as multiple offender. Appellant neither raised an argument concerning the
presentence report or the investigative methods utilized in researching his criminal history
nor presented evidence tending to demonstrate the report’s unreliability or inaccuracy.
Appellant has not met the burden of establishing that the trial abused its discretion in
sentencing him as a Range II offender. Therefore, the trial court properly sentenced
appellant.

                    3. Trial Court’s Consideration of Mitigating Factor

       Appellant cites as error the trial court’s failure to attribute weight to the mitigating
evidence he presented at the sentencing hearing. The trial court found the following statutory
enhancement factors: Number (1): The defendant has a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range; and Number (8): The defendant, before trial or sentencing, has failed to comply with
the conditions of a sentence involving release into the community. Tenn. Code Ann. § 40-

                                              -36-
35-114(1), (8) (2010). Appellant urged the court to consider the fact that he immediately
summoned help for the victim upon realizing he ran over her as a mitigating factor.

       A trial court’s weighing of enhancing and mitigating factors is entrusted to the sound
discretion of the trial court. Carter, 254 S.W.3d at 345; see also Tenn. Code Ann. § 40-35-
210 (2010), Sentencing Comm’n Commt; State v. Kelley , 34 S.W.3d 471, 479 (Tenn. Crim.
App. 2000) (“weight to be afforded an existing factor is left to the trial court’s discretion so
long as it complies with the purposes and principles of the 1989 Sentencing Act and its
findings are adequately supported by the record”). Because enhancing and mitigating factors
have been rendered merely advisory by the revised Sentencing Act, the trial court’s discretion
has been broadened. Carter, 254 S.W.3d at 345. In considering the enhancing and
mitigating factors, the trial court gave particular weight to (1), appellant’s long history of
domestic violence. See Tenn. Code Ann. § 40-35-114(1) (2010). In considering appellant’s
request to consider his flagging down a passing motorist as a mitigating factor, the trial court
found the proffered evidence “unconvincing.”

       Our supreme court has reiterated the deference to be given to a trial court’s sentencing
decision, stating that “if the trial court followed the statutory sentencing procedure, made
findings of fact that are adequately supported in the record, and gave due consideration to the
factors and principles that are relevant to sentencing under the 1989 Sentencing Act, the
court may not disturb the sentence even if a different result were preferred.” State v. Ralph,
347 S.W.3d 710, 717 (Tenn. 2010) (citing State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991)). The trial court followed the statutory procedure for sentencing and
appropriately considered applicable sentencing principles, thus, we attribute a presumption
of reasonable to the trial court’s sentencing order. Because the trial court imposed a lawful
sentence, we uphold the sentence.

                                       CONCLUSION

       We have thoroughly reviewed the record and have considered the briefs of the parties
and applicable law. After due consideration, we discern no error in the trial court requiring
reversal of appellant’s conviction and sentence.

       Therefore, we affirm the judgment of the trial court.


                                               _________________________________
                                               ROGER A. PAGE, JUDGE




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