         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs May 14, 2003

        RICKY FLAMINGO BROWN, SR. v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                        No. 84-F-1484    Cheryl Blackburn, Judge



                     No. M2002-02427-CCA-R3-PC - Filed June 13, 2003


The petitioner, Ricky Flamingo Brown, Sr., was convicted in 1987 of the aggravated rape of his
daughter. He later sought direct and delayed appeals, both of which were denied by this court and
the Tennessee Supreme Court. Subsequently, he filed a petition pursuant to Tennessee Code
Annotated section 40-30-403, which allows a defendant to petition the court for DNA analysis of
evidence in possession of the State. The State responded to the petition by stating that evidence
suitable for DNA testing was never collected and did not exist. The post-conviction court dismissed
the petition and, following our review, we affirm that dismissal.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES, J., joined.
JOSEPH M. TIPTON, J., filed a concurring opinion.

Ricky Flamingo Brown, Sr., Riverbend Maximum Security Institution, Pro Se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

         In August 1987, the petitioner was convicted of raping his twelve-year-old daughter and
sentenced to life imprisonment. Attempting to exonerate himself, he filed a pro se motion in the
Davidson County Criminal Court in June 2002 requesting forensic DNA analysis of certain evidence,
or, if the evidence was destroyed, proof of its destruction. By written order, the post-conviction
court directed the State to provide the following information: whether the evidence still existed and
was amenable to DNA analysis, whether it had ever been subjected to DNA analysis, and whether
a reasonable opportunity existed that the petitioner would not have been convicted if exculpatory
results had been obtained through analysis. The State responded that no evidence existed; thus, there
was no evidence suitable for analysis, and any exculpatory results of a DNA test would not be of
consequence because the victim had identified the petitioner, who was her father. Based on this
response, the post-conviction court dismissed the petition, stating:

                       After consideration of the State’s response to the above
               inquiry as well as Petitioner’s reply to the State’s response, the court
               determines that no evidence exists that would be amenable to DNA
               testing. Further, even if such evidence did in fact exist, the court
               finds that there is no reasonable probability that DNA testing would
               have precluded the Petitioner’s prosecution or conviction. The
               victim, Petitioner’s daughter, identified Petitioner [as] the individual
               who engaged in unlawful sexual conduct with her.

                                            ANALYSIS

        The petitioner’s request was based on the Post-Conviction DNA Analysis Act of 2001, which
allows a defendant convicted of certain crimes, including aggravated rape, to petition the court at any
time for DNA analysis of evidence in the possession or control of the State. Courts will order DNA
testing when:

               (1) A reasonable probability exists that the petitioner would not have
               been prosecuted or convicted if exculpatory results had been obtained
               through DNA analysis;

               (2) The evidence is still in existence and in such a condition that
               DNA analysis may be conducted;

               (3) The evidence was never previously subjected to DNA analysis or
               was not subjected to the analysis that is now requested which could
               resolve an issue not resolved by previous analysis; and

               (4) The application for analysis is made for the purpose of
               demonstrating innocence and not to unreasonably delay the execution
               of sentence or administration of justice.

Tenn. Code Ann. § 40-30-404 (Supp. 2001).

        On appeal, the petitioner raises several issues. First, he contends that the post-conviction
court failed to consider whether identity was an issue. This argument, however, begs the question
as to whether there is in existence evidence which is amenable to DNA testing. According to the
State’s response to the post-conviction court, the victim was not examined by a physician until three
days after the incident, and the purpose of the exam was only to detect physical trauma. The State
argued, and the post-conviction court made the finding, that no evidence suitable for DNA analysis
is available. The petitioner has attached to his appellate brief several medical records supposedly


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from the Metropolitan Nashville General Hospital, as well as a copy of what purports to be a 1992
affidavit in which a third party claimed to have had sexual relations with the victim. Though barely
readable, the medical documents apparently describe procedures performed on the victim after the
incident, and the affidavit gives testimony attempting to exculpate the petitioner. These supporting
documents cannot be considered because they are not properly in the record on appeal. See Tenn.
R. App. P. 28(a); State v. Matthews, 805 S.W.2d 776, 783 (Tenn. Crim. App. 1990) (transcripts
attached to appellant’s brief were not considered by the court because they were not made part of the
record).

        The petitioner contends also that the State is at fault for allowing the destruction of evidence
that would be suitable for DNA analysis. However, there is no proof that such evidence was ever
in the possession of the State or even existed. Additionally, the petitioner claims that his due process
rights were violated because the State failed to preserve evidence amenable for DNA analysis,
resulting in an unfair trial. See State v. Ferguson, 2 S.W.3d 912, 917 (Tenn. 1999) (whether a
defendant’s due process rights were violated depends on whether the State had a duty to preserve
evidence). Both of these claims presuppose that the State once possessed, but destroyed or lost,
evidence suitable for DNA analysis. However, the State has denied that this is the case, and there
is no basis for our concluding otherwise.

        The petitioner raises two additional issues on appeal, insufficient evidence and improper jury
instructions, both of these appearing to be directed toward the evidence at his trial. The petitioner
misunderstands the function and scope of the DNA Analysis Act. It does not permit him to appeal
unrelated claims or reargue the issues raised in his previous, unsuccessful petition for post-
conviction relief. Accordingly, these claims are not properly before the court. Tenn. Code Ann. §
40-30-202(c) (1997).

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition.

                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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