              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE                             FILED
                                                                         February 18, 2000
                             DECEMBER 1999 SESSION
                                                                        Cecil Crowson, Jr.
                                                                       Appellate Court Clerk


STATE OF TENNESSEE,    )
                       )
         Appellee,     )                 No. E1999-00922-CCA-R3-CD
                       )
                       )                 Sullivan County
v.                     )
                       )                 Honorable Phyllis H. Miller, Judge
                       )
DONALD WAYNE MARSHALL, )                 (Aggravated rape)
                       )
         Appellant.    )



For the Appellant:                       For the Appellee:
Stephen M. Wallace                       Paul G. Summers
District Public Defender                 Attorney General of Tennessee
      and                                       and
Gale K. Flanary                          Michael J. Fahey, II
Assistant Public Defender                Assistant Attorney General of Tennessee
Post Office Box 839                      425 Fifth Avenue North
Blountville, TN 37617-0839               Nashville, TN 37243
(AT TRIAL)
                                         H. Greeley Welles, Jr.
Mark H. Toohey                           District Attorney General
158 Cherokee Street                              and
Kingsport, TN 37660                      Barry P. Staubus
(ON APPEAL)                              Assistant District Attorney
                                                 and
                                         Gregory A. Newman
                                         Assistant District Attorney
                                         Post Office Box 526
                                         Blountville, TN 37617-0526




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge

                                     OPINION



             The defendant, Donald W ayne Marshall, appeals as of right from his

conviction by a jury in the Sullivan County Criminal Court for aggravated rape, a Class
A felony. The defendant was sentenced as a Range II, multiple offender to forty years

confinement in the custody of the Department of Correction. He presents the following

issues for our review:
             1. whether the evidence is sufficient to support the conviction;

             2. whether the trial court erred by denying his motions to
             suppress a knife found at the scene and DNA evidence;

             3. whether the trial court erred by ruling that the defendant’s
             previous convictions would be admissible for impeachment if
             he testified;
             4. whether the “untruthful” testimony of state’s witnesses
             deprived the defendant of due process;
             5. whether the trial court erred by failing to declare a mistrial
             when the defendant argued that a juror was asleep;
             6. whether his attorney was ineffective for failing to file a
             motion for the admission of evidence pursuant to Rule 412,
             Tenn. R. Evid., and whether the trial court erred in its rulings
             on Rule 412 issues.

We affirm the judgment of conviction.



              At trial the victim testified that she had dated the defendant’s brother,

Rocky Marshall, and that she and Mr. Marshall had previously lived together. She

testified that around 7:00 p.m. on August 10, 1996, she went to The Pub, a

bar/restaurant in Kingsport, where she ate dinner and drank four beers. She said she

received several calls at The Pub from Mr. Marshall, who was at the home of Paul
Queen, a mutual friend. She said she went to Mr. Queen’s house at 11:30 p.m. She

said the defendant; his brother, Mr. Marshall; Mr. Queen; and Mr. Queen’s brother were

at the house. She said she drank a beer, and everyone danced on the sidewalk in front
of the house. She testified that she was wearing a tank top and shorts with a swimsuit

underneath and that as she was dancing, Mr. Marshall tried to pull off her top and

shorts. She said she stopped Mr. Marshall and went to the restroom. She said that
when she came out, Mr. Marshall had passed out.



              The victim testified that she tried to awaken Mr. Marshall but was

unsuccessful. She said the defendant then began touching her, and she told him to
leave her alone. She said the defendant became very upset. She said she tried to use

a telephone inside the house but could not dial the correct numbers. She stated that

she continued to try to awaken Mr. Marshall and that the defendant continued to try to

                                             2
touch her. She said the defendant finally told her she could go home, and she left

around 2:00 a.m.



              The victim testified that she began walking away from the house. She

said she had been walking for a couple of minutes when the defendant came from

behind and knocked her into a field. She said the defendant held a butcher knife to her
throat and pinned her down, telling her he would cut her if she were not quiet. She said

the defendant put the knife in the ground and began choking her and telling her to shut

up. She said he then turned her over, pulled down her shorts and swimsuit bottoms,
and penetrated her. She said that when the defendant finished, he got up and walked

away. She said that as he was walking, he asked her if she was going to call the

police. She said that because she was afraid, she told him that she would not.


              The victim testified that she then went to The Pub to find her friend, Irene

Shipley. She said she arrived at about 3:00 a.m. and told Ms. Shipley what had

happened. She said Ms. Shipley took her to Ms. Shipley’s house, and they called the

police. The victim said the officers talked to her and then took her to Holston Valley

Hospital.



              Irene Shipley testified that she was working at The Pub on the night of the
incident. She said the victim had been receiving telephone calls at The Pub before

leaving around 11:30 p.m. She said the victim came back around 3:00 a.m., was crying

and wet, had grass all over her, and had cuts and scratches. She said the victim was
crying so hard she could not talk, but eventually the victim stated, “Wayne raped me.”

She said the police were called, and the victim was taken to the hospital.



              Dr. Shane Adams testified that he was working in the emergency room of

Holston Valley Hospital when the victim arrived around 4:30 a.m. He said the victim

was disheveled, nervous and anxious. He said she had a bruise and some scrapes

and scratches. He testified that he performed a rape kit test on the victim. He said that
he found no vaginal trauma but that this was not necessarily inconsistent with rape. Dr.

Adams testified that he saw the victim the following day for a follow-up visit and that the



                                             3
victim had bruises on both knees. He said the victim also had bruising around her left

eye that was consistent with the type of injury caused by a slap or a hit.



              Officer Ray McQueen, with the Kingsport Police Department, testified that

he was dispatched to Ms. Shipley’s house on the report of a possible rape. He said the

victim had red scratch marks on her face, neck and arms. He said the victim was crying
and appeared distraught.



              Detective David Cole, with the Kingsport Police Department, testified that
he was dispatched to the scene of the incident for investigation. He said he found

purple strips of cloth and a knife stuck in the ground. He said he then went to the

hospital to interview the victim. He said the victim was distraught and had scratches on
her body and grass in her hair.



              Kelly Smith testified that she is a forensic serologist with the Tennessee

Bureau of Investigation (TBI) Crime Laboratory. She testified that she examined DNA

collected from the victim’s vaginal swabs during the rape kit test and compared it to

blood samples from the victim and defendant. She said that the vaginal swabs

contained sperm and that the DNA profile of the sperm from the swabs was consistent

with the defendant’s DNA profile. She testified that the profile is found in less than .02
percent of the white population.



              Linda Littlejohn testified that she is a forensic scientist with the TBI. She
said she examined the bathing suit the victim was wearing at the time of the offense

and compared it to the cloth strips found at the scene. She said the bathing suit was

missing several cloth strips that were consistent with the ones found at the scene.
Upon the foregoing evidence, the jury convicted the defendant of aggravated rape.



                         I. SUFFICIENCY OF THE EVIDENCE

              The defendant contends that the evidence is insufficient to support his
conviction for aggravated rape. Initially, we note that the defendant fails to make any

argument or cite to anything in the record. “Issues which are not supported by

argument, citation to authorities, or appropriate references to the record will be treated

                                             4
as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). However, because insufficient

evidence would void the conviction, we will address the merits of the issue.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              Aggravated rape is defined, in pertinent part, as follows:

              . . . unlawful sexual penetration of a victim by the defendant or
              the defendant by a victim accompanied by any of the following
              circumstances:
              (1) Force or coercion is used to accomplish the act and the
              defendant is armed with a weapon or any article used or
              fashioned in a manner to lead the victim reasonably to believe
              it to be a weapon[.]

Tenn. Code Ann. § 39-13-502(a)(1). The victim testified that the defendant attacked

her, wielded a knife, forced her to the ground, and penetrated her. Ms. Shipley, Dr.

Adams, Officer McQueen, and Detective Cole testified that after the incident, the victim
was covered with grass and had scratches, cuts and bruises. A butcher knife was

found at the scene, along with strips of cloth that were determined to be consistent with

the victim’s bathing suit. Finally, the victim’s rape kit test revealed sperm of the same
profile as the defendant’s DNA. We hold that the evidence is sufficient to support the

defendant’s conviction.



                              II. MOTIONS TO SUPPRESS

              The defendant contends that the trial court erred by denying his motions

to suppress the knife found at the scene and the DNA evidence presented by Agent

Smith. The state contends that the evidence was properly admitted.


              With respect to the knife, the defendant argues that it was improperly

identified and irrelevant. He further argues that the trial court had previously ruled that

                                             5
it was admissible for identification only. The record shows that the victim examined the

knife discovered by Detective Cole and testified that it looked the same as the butcher

knife used by the defendant. At that point, the trial court admitted the knife into
evidence for identification. Detective Cole later identified the knife as the one he

recovered at the scene, and the knife was admitted into evidence. The record shows

that the knife was properly identified and authenticated. See Tenn. R. Evid. 901.



              Regarding the defendant’s relevancy argument, Rule 401, Tenn. R. Evid.,

provides that relevant evidence is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more or less

probable than it would be without the evidence.” In light of the fact that the victim

testified that the defendant wielded a butcher knife, and a butcher knife was found at
the scene, the evidence is relevant to proving the charge of aggravated rape.



              With respect to the admission of the DNA evidence, the defendant argues

that the evidence was irrelevant because there are too many other people whose

profiles would match the DNA. He further argues that the evidence was tainted by

Detective Cole. These issues are without merit. DNA evidence is generally admissible

pursuant to Tenn. Code Ann. § 24-7-117, and in this case, the evidence is relevant to

prove that the defendant was the perpetrator. The defendant’s argument goes to the
weight of the evidence and not to its admissibility. The defendant provides no support

for his contention that Detective Cole contaminated the evidence, and our review of the

record reveals none.


                               III. PRIOR CONVICTIONS

              The defendant contends that the trial court erred by ruling that his prior
convictions for armed robbery, aggravated assault and filing a false income tax return

would be admissible for impeachment purposes if he testified. See Tenn. R. Evid. 609.

He argues that the probative value of the convictions was substantially outweighed by

the danger of unfair prejudice and that two of the convictions were more than ten years
old. See Tenn. R. Evid. 403, 609(b).




                                             6
               We hold that the trial court did not err by ruling that the convictions were

admissible. With respect to the convictions for armed robbery and filing a false income

tax return, these convictions are probative in that they are crimes of dishonesty that
would reflect on the defendant’s credibility. Although the aggravated assault conviction

is less probative on the issue of the defendant’s honesty, it still reflects his inability to

conform his conduct to the requirements of the law. See generally State v. Farmer, 841

S.W.2d 837, 841 (Tenn. Crim. App. 1992). Furthermore, because the previous

convictions are for crimes of a different nature than aggravated rape, they are not

unduly prejudicial. See State v. Ratliff, 673 S.W.2d 884, 885 (Tenn. Crim. App. 1984)

(“Where the prior offense is substantially different from the crime charged, the

prejudicial effect is minimal.”).



               The defendant also contends that the armed robbery and aggravated

assault convictions are inadmissible because they are over ten years old. Rule

609(b),Tenn. R. Evid., provides that “[e]vidence of a conviction under this rule is not

admissible if a period of more than ten years has elapsed between the date of release

from confinement and commencement of the action or prosecution.” (Emphasis

added). The record reflects that the defendant was convicted of armed robbery in 1981

and aggravated assault in 1986. However, the record further reflects that the defendant

was not released from prison for these offenses until 1990 and 1993, respectively.
Thus, the convictions were within the ten-year period permitted by Rule 609(b).



                       IV. TESTIMONY OF STATE’S WITNESSES
               The defendant contends that the “untruthful” testimony of state’s

witnesses deprived him of due process. He argues that the testimony of the victim,

Detective Cole and Ms. Shipley was contradictory and, thus, untruthful such that he was
deprived of a fair trial. This issue is without merit. No evidence exists that the

witnesses were being untruthful. The credibility of the witnesses and the weight to be

given to their testimony are issues to be resolved by the trier of fact, not this court.

State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).



                                    V. SLEEPING JUROR



                                               7
              The defendant contends that the trial court erred by failing to declare a

mistrial after the defendant pointed out that one of the jurors had appeared to be

asleep. The trial court permitted the attorneys to question the juror outside the
presence of the other jury members. The juror explained that she had not been asleep

but had only closed her eyes for a moment to rest them. She stated that she had paid

attention and listened to all of the evidence and that she had never been asleep during
the trial. The trial court denied the defendant’s motion. We note that the mere fact that

a juror becomes drowsy for a short time is not of itself a ground for a new trial; the

defendant must show prejudice. See State v. Chestnut, 643 S.W.2d 343, 346 (Tenn.

Crim. App. 1982). In light of the juror’s testimony that she had been awake and had not

missed any evidence, the defendant has failed to make this showing. This issue is

without merit.


                           VI. ISSUES RELATING TO TENN. R. EVID. 412

              The defendant raises several issues relating to Rule 412, Tenn. R. Evid.

Specifically, he argues that (1) his attorney was ineffective for failing to follow the

procedural requirements of Rule 412(d); (2) the trial court should have granted his

motion for a mistrial or to withdraw upon learning that his attorney failed to follow the

procedures of Rule 412(d), which resulted in the exclusion of evidence of prior

consensual sex between the defendant and the victim; and (3) the trial court erred by
redacting a portion of the victim’s medical records relating to the victim’s last reported

consensual sexual activity.



                 Rule 412, Tenn. R. Evid., limits the admissibility of evidence about the

prior sexual behavior of a victim of a sexual offense and establishes procedures for

determining when such evidence is admissible. The rule provides, in pertinent part, as
follows:

                 Evidence of specific instances of a victim’s sexual behavior is
                 inadmissible unless admitted in accordance with the
                 procedures in subdivision (d) of this rule, and the evidence is:
                 (1) Required by the Tennessee or United States Constitution,
                 or
                 (2) Offered by the defendant on the issue of credibility of the
                 victim, provided the prosecutor or victim has presented
                 evidence as to the victim’s sexual behavior, and only to the
                 extent needed to rebut the specific evidence presented by the
                 prosecutor or victim, or


                                                8
              (3) If the sexual behavior was with the accused, on the issue
              of consent[.]
Tenn. R. Evid. 412(c). The rule mandates the following procedures:

              (1) The person must file a written motion to offer such
              evidence.
                     (i) The motion shall be filed no later than ten days
              before the date on which the trial is scheduled to begin, except
              the court may allow the motion to be made at a later date,
              including during trial, if the court determines either that the
              evidence is newly discovered and could not have been
              obtained earlier through the exercise of due diligence or that
              the issue to which such evidence relates has newly arisen in
              the case.
                     (ii) The motion shall be served on all parties, the
              prosecuting attorney, and the victim; service on the victim shall
              be made through the prosecuting attorney’s office.
                     (iii) The motion shall be accompanied by a written offer
              of proof, describing the specific evidence and the purpose for
              introducing it.

Tenn. R. Evid. 412(d). The rule further provides that the trial court must conduct a
nonpublic hearing to consider the admissibility of the evidence and, if otherwise

admissible, must determine whether the probative value of the evidence outweighs the

unfair prejudice to the victim.



              In the present case, the state filed a motion during trial to prevent the

defendant from introducing any evidence of the victim’s sexual history, arguing that the

defendant had filed no motion and had failed to comply with any of the other procedural

requirements of Rule 412(d). The defendant’s attorney admitted that he failed to file
the motion but argued that the evidence was nevertheless admissible because it was

evidence of prior consensual sex between the defendant and the victim. See Tenn. R.

Evid. 412(c)(3). The trial court determined that the attorney had failed to comply with
the procedures of Rule 412(d) and further determined that the proposed evidence was

not newly discovered. See Rule 412(d)(1)(i). Thus, the trial court ruled the evidence

inadmissible. In an offer of proof, the defendant testified that he had lived with the
victim and his brother and that during this time, he and the victim had consensual sex.

The defendant’s brother testified that he had witnessed the defendant and victim having

sex twice.



                         A. Ineffective Assistance of Counsel

              The defendant contends that his attorney’s failure to follow the procedural

requirements of Rule 412(d) resulted in the ineffective assistance of counsel in that it

                                             9
precluded him from asserting consent as a defense and forced the attorney to change

strategies in the middle of the trial. The state contends that the defendant has not

demonstrated prejudice.


              Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is upon the petitioner to show (1) that counsel’s
performance was deficient and (2) that the deficiency was prejudicial in terms of

rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied to the right to counsel under

Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417,
419 n. 2 (Tenn. 1989).



              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel’s conduct, a “fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).



              We also note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.


              We hold that although the attorney should have filed the appropriate

motion under Rule 412(d), the defendant has failed to demonstrate prejudice. First, the

                                            10
record shows that the defendant was not precluded from presenting consent as a

defense. The defendant’s attorney questioned the victim about whether she had

previously had consensual sex with the defendant, and he continued to argue consent.
The record shows that the attorney did not abandon strategies in the middle of trial but

rather presented alternate theories to the jury. Furthermore, the state presented strong

evidence of aggravated rape. The victim’s testimony that the sex was not consensual
was supported by her physical and emotional condition after the attack. Dr. Adams,

Ms. Shipley, Officer McQueen and Detective Cole all testified that the victim had

scratches, bruises and red marks on her body. They testified that she had grass in her
hair and clothes and that she was crying and distraught. In addition, Detective Cole

testified that he found a butcher knife in the ground at the location of the attack,

supporting the victim’s testimony that she was forced to have sex at knifepoint. In light
of the ample proof of force presented by the state, the defendant has failed to

demonstrate that he was prejudiced by his attorney’s failure to follow the requirements

of Rule 412(d).



                         B. Motion for a Mistrial or to Withdraw

              The defendant contends that the trial court erred by failing to declare a

mistrial or to allow his attorney to withdraw upon learning of his attorney’s failure to file

the motion pursuant to Rule 412(d), Tenn. R. Evid. The record shows that after the trial
court found the evidence to be inadmissible for failing to comply with the procedural

requirements of the rule, the defendant’s attorney requested a mistrial or to withdraw,

arguing that his inability to present evidence of prior consensual sex between the victim
and the defendant essentially precluded him from effectively defending the case. The

trial court denied the motions and specifically found that no manifest necessity existed

to require a mistrial. See State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.

1991).



              The decision of whether to grant a mistrial is within the sound discretion of

the trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This

court will not disturb that decision unless there is an abuse of discretion. State v.

Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); State v. Williams, 929 S.W.2d 385, 388

(Tenn. Crim. App. 1996). With respect to motions to withdraw, the trial court may, upon

                                              11
good cause shown, permit the withdrawal of an attorney appointed to represent an

indigent defendant. Tenn. Code Ann. § 40-14-205(a). The trial court has wide

discretion in matters regarding the appointment and relief of counsel, and its decision
will not be set aside on appeal unless the defendant shows an abuse of discretion.

State v. Rubio, 746 S.W.2d 732, 737 (Tenn. Crim. App. 1987).



              We hold that the defendant has not shown that the trial court abused its

discretion in denying the motions. He has shown no manifest necessity that would

require a mistrial nor has he shown good cause that would require withdrawal,
particularly in light of our previous holding that he was not prejudiced by his attorney’s

inability to present evidence of prior consensual sex.



                             C. Redacted Medical Records

              The defendant contends that the trial court erred by redacting a portion of

the victim’s medical records that were admitted into evidence. The record reflects that

the defendant sought to introduce medical records from Holston Valley Hospital relating

to the victim’s treatment for the rape. The records included a portion filled out by the

victim wherein she reported her last consensual sexual intercourse with a different

partner to be at 1:00 a.m. on August 9, 1996. The defendant argued that the evidence

was admissible pursuant to Rule 412(d)(4)(ii), Tenn. R. Evid., which provides for limited
admissibility of evidence of sexual activity with persons other than the defendant to

rebut or explain scientific or medical evidence. The state sought to have that portion of

the records redacted because of the defendant’s failure to follow the procedural
requirements of Rule 412(d). The trial court determined that the defendant’s failure to

comply with the rule required redaction. The defendant has not shown that the trial

court erred, and the record supports its determination.


              In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.



                                                 ________________________________
                                                 Joseph M. Tipton, Judge
CONCUR:


                                            12
______________________________
David H. Welles, Judge


______________________________
Jerry L. Smith, Judge




                                 13
