         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs November 2, 2010

                STATE OF TENNESSEE v. WALTER WILLIAMS

                     Appeal from the Criminal Court for Shelby County
                       No. 06-09323 Carolyn Wade Blackett, Judge



                     No. W2009-01482-CCA-R3-CD - Filed June 7, 2011


The Shelby County Grand Jury indicted Appellant, Walter Williams, for one count of rape
in connection with the rape of his thirteen-year-old daughter. A jury found Appellant guilty
as charged. The trial court sentenced Appellant to eight years as a Range I, standard
offender. Appellant appeals his conviction. He argues that: (1) the evidence was insufficient
to support his conviction; (2) the trial court erred in allowing testimony of an expert witness;
(3) the trial court erred in allowing certain questions during the jury voir dire; and (4) the trial
court erred in failing to give the missing witness jury instruction. After a thorough review
of the record, we conclude that Appellant’s argument must fail. Therefore, the judgment of
the trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J. and
J OHN E VERETT W ILLIAMS, J., J OINED.

Brett B. Stein, Memphis, Tennessee, for the appellant Walter Williams.

Robert E. Cooper, Jr., Attorney General and Reporter, Lindsy Paduch Stempel, Assistant
Attorney General; William L. Gibbons, District Attorney General, Tracey Jones and Paul
Goodman, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                           OPINION

                                      Factual Background

      When taken in a light more favorable to the State and as accredited by the jury, the
witness’s testimony showed the following facts. In the winter of 2004, the victim, L.W.,
lived in an apartment with her sister N., her brothers, C., A. and N., her father, and his wife.
The victim was thirteen or fourteen years old at the time. On the evening in question, she
went to Appellant’s room to tell him that his wife and her sister, A., were ready for him to
pick them up from work.

       Appellant asked L.W. to come into his room and close the door behind her. L.W. did
as she was told. Appellant did not turn on the light. Appellant told her to sit on the bed
pushed her down on the bed. Appellant held L.W. down throughout the encounter. He
pulled her pants down and inserted his mouth into her vagina. L.W. asked Appellant to stop,
and she tried to scream. Throughout the encounter, Appellant alternatively told her not to
scream and covered her mouth with his hand. Appellant subsequently inserted his penis into
her vagina and had sexual intercourse with his daughter. L.W. did not consent.

        When Appellant was finished, L.W. returned to her room that she shared with her
sister, N. L.W. cried most of the night and was unable to sleep. N. was asleep throughout
the night. L.W. did not wake N. up to tell her what had happened in her father’s room. In
the kitchen the next morning, L.W. asked her brother C. if he had heard anything. C.
responded that he had not heard anything. L.W. neither told him why she asked nor what
happened the night before in her father’s room.

       Some months later, L.W. was sitting in the parking lot outside of her father’s
apartment with her sister, S. L.W. told S. about the night in question. S. was furious. L.W.
begged S. not to tell anyone in the family. S. did as she was asked. She did not inform the
authorities either.

        In early 2005, Child Protective Services (“CPS”) was alerted to abuse allegations
against Appellant stemming from a report concerning one of L.W.’s brothers. CPS ordered
the children out of Appellant’s home. L.W. and three of her siblings moved in with S. While
L.W. was living with S., S. reported the rape to CPS. Representatives from CPS spoke with
L.W., who confirmed what S. had reported.

        A few weeks later, L.W. was examined by Elizabeth Thomas at the Memphis Sexual
Assault Resource Center. Elizabeth Thomas is a sexual assault nurse examiner at the center.
At the time of the examination, L.W. was sixteen years old. Ms. Thomas made three findings
with regard to the condition of L.W.’s hymen. Ms. Thomas determined that the opening to
L.W.’s hymen was abnormal because it measured fifteen by seven millimeters as opposed
to a more normal ten by ten millimeters. Ms. Thomas also found two scars on the hymen.
She also found that the hymen was less than one millimeter thick where it should have been
two millimeters thick. She concluded that these findings were consistent with a “history of
blunt penetrating trauma.” Ms. Thomas was unable to determined the date of the injuries.

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However, she could determine that the injuries were not recent because they were completely
healed. Ms. Thomas later testified that the two scars could also be consistent with rough
sexual activity that could have occurred between the incident in question and the
examination.

        In the November 2006 term, the Shelby County Grand Jury indicted Appellant for one
count of rape. The trial court held a jury trial on May 12 and 13, 2009. At the conclusion
of the trial, the jury found Appellant guilty of one count of rape. In a separate sentencing
hearing, the trial court sentenced Appellant to eight years as a Range I, standard offender to
be served at 100%.

       Appellant now appeals his conviction.

                                        ANALYSIS

                                Sufficiency of the Evidence

        Appellant argues the evidence was insufficient to support his conviction because
“[t]he alleged victim’s testimony is implausible and contrary to logic.” The State argues that
the evidence was sufficient.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn.1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

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weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether the conviction
is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       Appellant argues that the victim’s testimony that she failed to tell her sister
immediately after it happened or her brother’s the next morning is “implausible and contrary
to logic.” He also argues that her sister’s failure to report the incident immediately after
learning of it is also “implausible and contrary to logic.” By making this argument,
Appellant is asking this Court to substitute its judgment for that of the jury and weigh the
victim’s credibility. As stated above, this Court is not allowed to do either of these things
on appeal. Clearly, the jury found the victim to be credible and found that her version of
events was logical.

       Rape is defined as:


       [The] unlawful sexual penetration of a victim by the defendant . . .
       accompanied by any of the following circumstances:

              (1) Force or coercion is used to accomplish the act;

              (2) The sexual penetration is accomplished without the consent of the
       victim and the defendant knows or has reason to know at the time of the
       penetration that the victim did not consent; . . . .”


T.C.A. § 39-13-503(a)(1), (2). “Sexual penetration” means sexual intercourse . . . .” T.C.A.
§ 39-13-503(7).

       When taken in a light most favorable to the State, the evidence shows that Appellant
inserted his penis into the victim’s vagina. In other words, Appellant had sexual intercourse
with the victim. The victim did not consent to intercourse with Appellant, and Appellant
physically held her down in order to accomplish the act. We conclude that the evidence is
sufficient to support the jury’s verdict of guilty.

       Therefore, this issue is without merit.




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                                       Expert Witness

        Appellant argues that the trial court erred in allowing Elizabeth Thomas, the sexual
assault nurse examiner, to testify regarding her examination of the victim. Appellant argues
that the trial court should have prevented her from testifying because the State did not tender
her as an expert witness and because her examination of the victim was so remote in time
from the incident in question.

       The State argues that Ms. Thomas properly testified under Rule 701 of the Tennessee
Rules of Evidence as a lay witness. In the alternative, the State argues that the trial court did
not abuse its discretion in allowing the testimony because Ms. Thomas’s background was
sufficient to qualify her as an expert. The State also points out that Appellant was allowed
to cross-examine Ms. Thomas about other possible causes of the injuries in the ensuing time
between the incident and the examination. Finally, the State argues that Ms. Thomas made
no conclusions as to when the injuries occurred.

        At trial, the State presented Ms. Thomas as a witness. She first set out her
qualifications. Ms. Thomas testified that she examined the victim on February 16, 2006. At
this point, Appellant objected on the basis that the examination was too remote in time and,
therefore, was not relevant. Appellant argued that it was two years between the incident and
the examination, and the State argued that it was a year and a half. The trial court determined
that the length of time between the incident and the examination was a jury question.

       The State continued its direct examination of Ms. Thomas. She began to testify
regarding her findings during her examination of the victim. Appellant again objected to her
testimony. Appellant argued that the State needed to qualify Ms. Thomas as an expert.
The State argued that “a lay witness could examine bruises, etc.” The trial court replied that
the State had not tendered her as an expert and stated that the State could present Ms.
Thomas’s testimony. Ms. Thomas continued her testimony.

       Rule 701(a) of the Tennessee Rules of Evidence addresses the admissibility of opinion
testimony offered by non-experts. The rule provides, in relevant part:


       (a) If a witness is not testifying as an expert, the witness’s testimony in the
       form of opinions or inferences is limited to those opinions or inferences which
       are

       (1) rationally based on the perception of the witness; and



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       (2) helpful to a clear understanding of the witness’s testimony or the
       determination of a fact in issue.


Tennessee Rule 701(a). The Rule was amended because, prior to 1996, it “precluded any lay
opinion if the lay witness could substitute facts for opinion.” Tenn. R. Evid. 701, Advisory
Commission Comments (1996). Although the 1996 amendment eliminated certain
restrictions on opinion testimony, it was not meant to eliminate the distinction between expert
and lay testimony. See Tenn. R. Evid. 702-706; Neil P. Cohen et al., Tennessee Law of
Evidence § 701.3 (3d ed. Supp. 1999). “The distinction between an expert and a non-expert
witness is that a non-expert witness’s testimony results from a process of reasoning familiar
in everyday life and an expert’s testimony results from a process of reasoning which can be
mastered only by specialists in the field.” State v. Brown, 836 S.W.2d 530, 549 (Tenn.
1992).

      In this case, an opinion as to injuries to the victim’s hymen could only result from
medical training and expertise, as well as, considerable experience. Clearly, Ms. Thomas
was not testifying as a lay witness. Therefore, her testimony was not admissible under Rule
701.

        However, our analysis does not stop at this point. This Court has previously analyzed
a very similar set of facts. In State v. Roy D. Wakefield, No. M2005-01136-CCA-R3-CD,
2006 WL 1816323 (Tenn. Crim. App., at Nashville, Jun. 29, 2006), perm. app. denied,
(Tenn. Nov. 13, 2006), the defendant was convicted of rape of a child. 2006 WL 1816323,
at *1. At the trial, a nurse practitioner at Our Kids Center in Nashville testified about her
physical examination of the victim and her findings. On appeal, the defendant argued that
the trial court erred in allowing the nurse practitioner to testify because she was not a doctor
and was not qualified to make any forensic medical determinations. Id. at *10. When the
objection was made at trial, the trial court ruled that the nurse practitioner could testify under
Rule 701 as a lay witness. Id. at *12. On appeal, this Court held that the nurse practitioner
was not testifying as a lay witness. Therefore, Rule 701 was not applicable. Id. at *13.
After determining that Rule 701 did not apply, this Court analyzed the facts and determined
that even though the nurse practitioner had not been qualified as an expert witness at trial,
the testimony at trial supported the conclusion that she was an expert witness. Id. Therefore,
this Court concluded, the nurse practitioner was qualified to testify as an expert witness and
her testimony was permissible pursuant to Rule 702. Id. Therefore, to be admissible in the
case at hand the proof must show that Ms. Thomas was an expert witness under Rule 702.

       Rule 702 of the Tennessee Rules of Evidence governs the admissibility of expert
testimony. It provides:

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       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.


       Rule 703 of the Tennessee Rule of Evidence provides that:


       The facts or data in the particular case upon which an expert bases an opinion
       or inference may be those perceived by or made known to the expert at or
       before the hearing. If of a type reasonably relied upon by experts in the
       particular field in forming opinions or inferences upon the subject, the facts or
       data need not be admissible in evidence. The court shall disallow testimony
       in the form of an opinion or inference if the underlying facts or data indicate
       lack of trustworthiness.

       Determinations regarding the admissibility of expert testimony are left to the sound
discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). On appeal,
our standard of review is whether the trial court abused its discretion by allowing the expert
testimony. Before reversing the trial court’s determination, we must determine that the
record shows that the trial court “applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the party complaining.” State
v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn.
1997).

         Rule 703 of the Tennessee Rules of Evidence contemplates three possible sources
from which an expert may base his/her opinion: (1) information actually perceived by the
expert; (2) information made known to the expert by others; and (3) information reasonably
relied upon by experts in the particular field. See Tenn. R. Evid. 703; see also Neil P. Cohen,
et. al., Tennessee Law of Evidence §§ 7.03(3), 7.03(4), 7.03(5) (5th ed. 2005). In other
words, Rule 703 contemplates that inherently reliable information is admissible to show the
basis for an expert’s opinion, even if the information would otherwise constitute inadmissible
hearsay. See Tenn. R. Evid. 703. It is not uncommon for an expert witness’s opinion to be
based on facts or data that are not admissible into evidence but are reliable. See Neil P.
Cohen et al., Tennessee Law of Evidence § 7.03(4).

                                              -7-
        For her qualifications, Ms. Thomas testified that she was employed at the Memphis
Sexual Assault Resource Center (“MSARC”) part-time. At the time of the trial she had been
employed full-time for sixteen years as a professor at the University of Tennessee in nursing.
She stated that all nurses who work at MSARC are required to have a minimum of a masters
in nursing. In addition, Ms. Thomas has had post-masters training in medical legal death
investigation and child and adolescent and adult sexual assault. It is clear that Ms. Thomas
is qualified as an expert in child sexual abuse. She has specialized education, training, and
experience to support this conclusion. Her testimony was based upon her personal
observations during her examination of the victim and her specialized education, training,
and experience.

       The trial court’s conclusion that Ms. Thomas could testify as a lay witness did not
have a basis in the rules of evidence. However, we conclude that Ms. Thomas was an expert
for the purposes of testifying regarding child sexual abuse. Because Ms. Thomas was
qualified to testify as an expert witness, her testimony is permissible under Rule 702.

       This issue is without merit.

                                      Juror Voir Dire

       Appellant also argues that the trial court erred in allowing the State to ask potential
jurors whether or not they could rely on the testimony of one witness to determine whether
a defendant is guilty of a crime. The State argues that the trial court did not err.

       “The ultimate goal of voir dire is to [e]nsure that jurors are competent, unbiased, and
impartial.” State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994). The appellate courts in this
State have determined that it is improper to ask prospective jurors hypothetical questions that
seek to commit the jurors to a specific course of action. Solomon v. State, 489 S.W.2d 547,
550 (Tenn. Crim. App. 1972). The conducting of the voir dire of prospective jurors is in the
discretion of the trial court. Id. Therefore, an appeal from a trial court’s decision cannot be
overturned by this Court unless it is apparent that the trial court abused its discretion. See
State v. Mickens, 123 S.W.3d 355, 375 (Tenn. Crim. App. 2003).

       During voir dire, the State began to ask a juror if she could consider the testimony of
only one person who was present during the crime in her decision of the case. Appellant
objected to the question. The trial court determined that the question was appropriate. The
State subsequently asked the juror, “[I]f a crime was committed and there is one witness, do
you believe that you could determine credibility of that one witness and make a decision
about the case if there’s only one witness?”



                                              -8-
        We conclude that this is not a hypothetical question attempting to commit a juror to
a specific decision. The question posed by the State during voir dire is a question to
determine whether a juror could base his decision on his determination of the credibility of
a single witness presented at trial. This question does not require a juror to find a single
witness credible and, therefore, a defendant guilty when only one witness is presented. The
trial court did not abuse its discretion in allowing the question.

       Therefore, this issue is without merit.

                             Missing Witness Jury Instruction

       Appellant argues that the trial court erred in denying his request for the missing
witness jury instruction. He requested the instruction because of the State’s failure to call
the victim’s sisters and brothers as witnesses at the trial. The State argues that the trial court
properly denied the request.

         The law regarding the appropriate circumstances for giving the “missing witness”
instruction was explained by our supreme court in State v. Francis, 669 S.W.2d 85 (Tenn.
1984). “[A] party may comment about an absent witness and have the trial court instruct the
jury on the failure of an adverse party to call an absent witness when the evidence shows that
‘(1) the witness had knowledge of material facts, (2) that a relationship exists between the
witness and the party that would naturally incline the witness to favor the party and (3) that
the missing witness was available to the process of the Court for trial.’” Francis, 669 S.W.2d
at 88 (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). The mere fact that a party
fails to produce a particular person who may have some knowledge of the facts involved does
not justify application of the inference against him. However, when it can be said “with
reasonable assurance that it would have been natural for a party to have called the absent
witness but for some apprehension about his testimony,” an inference may be drawn by the
jury that the testimony would have been unfavorable. Burgess v. United States, 440 F.2d
226, 237 (D.C. Cir. 1970). The inference may not be invoked when it is merely shown that
(1) the witness “may have some knowledge of the facts involved,” Francis, 669 S.W.2d at
88, or (2) the witness is equally available to both parties. State v. Boyd, 867 S.W.2d 330, 337
(Tenn. Crim. App. 1992); State v. Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim. App. 1988);
State v. Overton, 644 S.W.2d 416, 417-18 (Tenn. Crim. App. 1982).

       When ruling on Appellant’s request for the instruction, the trial court stated the
following:




                                               -9-
       I don’t know why you didn’t subpoena those witnesses if you felt they were
       important to your case. But, the facts that have been adduced in this case so
       far do not indicate that any of these parties that you were talking about would
       have been material witnesses in this case, that could not have been subpoenaed
       by you.


        We agree with the trial court’s determination. In Francis, our supreme court stated
that to support the missing witness instruction, the witness must have had knowledge of the
material facts. 669 S.W.2d at6 88. In this case, the material facts were of the rape. Under
these particular facts, only the victim and Appellant were material witnesses to the rape. In
addition, the victim’s brothers and sisters, who were also the children of Appellant, were
equally available to be called by either Appellant or the State. We conclude that the missing
witness instruction was not required in the situation at hand and that the trial court was
correct in its denial of Appellant’s request.

       Therefore, this issue is without merit.

                                      CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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