             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                     Assigned on Briefs June 2, 2004

              STATE OF TENNESSEE v. MARCUS VASHAWN NIXON

                    Direct Appeal from the Circuit Court for Lauderdale County
                               No. 7364    Joseph H. Walker, Judge



                     No. W2003-01909-CCA-R3-CD - Filed September 15, 2004


The Appellant, Marcus Vashawn Nixon, appeals his jury conviction for rape of a child in the
Lauderdale County Circuit Court. As grounds, he asserts that the trial court erred in denying his
motion to suppress pre-trial photo identification evidence based upon a Rule 16 discovery violation.
After review of the record, we find no reversible error and affirm the decision of the trial court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.
WEDEMEYER, JJ., joined.

Didi Christie, Brownsville, Tennessee (on appeal); Gary F. Antrican, District Public Defender; and
Julie K. Pillow, Assistant Public Defender (at trial), for the Appellant, Marcus Vashawn Nixon.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.
Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A.
Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                                       OPINION

                                                Factual Background

        In the early morning hours of July 7, 2002, the Appellant entered the home of Brenda Allen
in Ripley, after Allen had fallen asleep in her car listening to the radio. After entering, the Appellant
approached the nine-year-old victim, L.T.,1 who was asleep on the couch. The victim testified that
she woke up and saw the Appellant standing over her, he removed her shorts, and then placed his
“private part” in her “private part.” Allen awoke after hearing the victim’s screams and came into
the house. She testified that she immediately recognized the Appellant and called out to him, but


         1
           In order to protect the identity of minor victims of sexual abuse, it is the policy of this court to refer to the
victims by their initials. State v. Schimpf, 782 S.W .2d 186, 188 n.1 (Tenn. Crim. App. 1989).
he ran out the back door. Allen called the police to report the rape, and officers responding to the
scene spotted the Appellant in the surrounding area, wearing clothes matching the description
furnished by Allen. The Appellant was subsequently arrested at the home of his sister. He later gave
a statement to police admitting that he had had intercourse with a girl in Allen’s home, but he stated
that the girl had initiated the sexual encounter and told him that she was fifteen years old.

        On October 7, 2002, a Lauderdale Country grand jury returned an indictment against the
Appellant charging him with one count of rape of a child. On October 30, 2002, the Appellant filed
several pre-trial motions, including a Tennessee Rule of Criminal Procedure 16 discovery request.
On February 18, 2003, the morning of trial, the State informed the Appellant that they had just
learned of a photo identification made by the victim of the Appellant. At that time, the trial court
conducted a hearing on the motion to suppress the identification, which was denied.

       After a jury trial, the Appellant was convicted of the offense as charged and subsequently
sentenced to a term of twenty-one years in the Department of Correction. His motion for new trial
was later denied, with this appeal following.

                                              Analysis

       The Appellant contends that the trial court erred in denying his motion to suppress the
victim’s photo identification because the State violated Rule 16 of the Tennessee Rules of Criminal
Procedure. Specifically, he contends that the State violated the discovery rule because he was not
given notice of the existence of the photo identification until the morning of trial despite his Rule
16 request for discovery. Further, the Appellant asserts that the State’s failure to comply with the
discovery request hindered his trial preparation and defense at trial by denying him the opportunity
to adequately investigate the circumstances surrounding the identification and argue that it was
impermissibly suggestive. He asserts that his conviction should therefore be reversed.

         Upon request, the State must permit a defendant to inspect, copy, or photograph tangible
objects within its possession, custody, or control which are material to the preparation of the defense
or are intended for use by the State as evidence in chief at trial. Tenn. R. Crim. P. 16(a)(1)(C). Both
the State and the defense have a continuing duty to disclose evidence previously requested and
subject to discovery under Rule 16. Tenn. R. Crim. P. 16(c). When arguing that the State has
violated Rule 16, a defendant bears the burden of showing “the degree to which the impediments to
discovery hindered trial preparation and defense at trial.” State v. Thomas Dee Huskey, No. E1999-
00438-CCA-R3-CD (Tenn. Crim. App. at Knoxville, June 28, 2002) (quoting State v. Brown, 836
S.W.2d 530, 548 (Tenn. 1992)).

        Failure by either party to comply with the discovery rule authorizes the court to fashion an
appropriate remedy which “it deems just under the circumstances.” Tenn. R. Crim. P. 16(d)(2); see
also State v. Smith, 926 S.W.2d 267, 270 (Tenn. Crim. App. 1995). The sanction to be applied for
non-compliance must fit the circumstances of the individual case. State v. Cadle, 634 S.W.2d 623,
625 (Tenn. Crim. App. 1982). Thus, in some instances mere inspection may serve to protect a


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defendant’s interest. In other situations, a continuance may be required to give the accused a chance
to review the State’s previously undisclosed evidence, or the court may be required to exclude the
evidence altogether. Tenn. R. Crim. P. 16(d)(2).2 However, evidence should not be excluded unless
a party is actually prejudiced by the failure to comply with the discovery order, and the prejudice
cannot be otherwise eradicated. State v. James, 688 S.W.2d 463, 466 (Tenn. Crim. App. 1984);
State v. Garland, 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981). Admissibility of evidence is
within the realm of the sound discretion of the trial court. State v. McLeod, 937 S.W.2d 867, 871
(Tenn. 1996).

        The trial court found that the State did have an obligation under Rule 16 to disclose the photo
array from which the Appellant was identified by the victim. However, in denying the Appellant’s
motion to suppress, the trial court found that the Appellant’s late access to the identification did not
result in prejudice. The record reflects that the Appellant was notified of the identification
immediately after the State learned of its existence.

        The trial court’s findings are as follows:

        The Court finds that, as far as I’ve been presented under the statement of what the
        State intends to present at trial, that the witness; that is, the child, would have an
        opportunity to view the criminal at the time of the crime. The jury will make a
        determination about the degree of attention and that kind of thing. But the fact that
        an adult observed who she believed to be the defendant and provided that name is the
        reason that the defendant’s photo was included to the photo ID, plus the fact that the
        defendant was discovered shortly thereafter in the same clothes that were described
        by the victim, all would go to weight toward the photo ID.

        We agree with the trial court that the Appellant has failed to demonstrate that he was
prejudiced by the State’s late disclosure of the identification evidence. At trial, Allen testified that
she immediately recognized the eighteen-year-old Appellant, whom she had known for
approximately twelve or thirteen years. Additionally, Allen described the clothing worn by the
person in her house, which matched the clothing worn by the Appellant when he was arrested shortly
thereafter. Finally, the victim positively identified the Appellant at trial as the person who raped her.
The Appellant argues that had the State disclosed the photographic lineup prior to trial, “more
investigation into the circumstances surrounding the identification by the victim” could have been
made. The Appellant does not suggest what could have been developed or how further investigation
would have negated the positive identifications of Allen and the victim or the Appellant’s statement
that he was present at the house and had intercourse with a girl inside the home. Because we
conclude that the Appellant was not prejudiced by the State’s failure to timely comply with the
discovery request, this issue is without merit.




        2
            The State made no attempt at trial to introduce the victim’s photo identification of the Appellant.

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                                      CONCLUSION

       Based upon the foregoing, we affirm the Lauderdale County Circuit Court’s denial of the
Appellant’s motion to suppress the photo identification.




                                                   ___________________________________
                                                   DAVID G. HAYES, JUDGE




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