         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              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



JOSEPH M. TIPTON, J., concurring.

        I concur in the majority opinion. I question, though, the trial court’s reliance upon the
victim’s identifying the petitioner, her father, as the perpetrator to deny testing. The DNA Analysis
Act requires the court to determine if “[a] reasonable probability exists that the petitioner would not
have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis.”
Tenn. Code Ann. § 40-30-404(1). In other words, the Act requires the trial court to assume that the
DNA analysis will reveal exculpatory results in the court’s determination as to whether to order
DNA testing. To the extent that the trial court’s order implies that the fact that the victim identified
the petitioner as a perpetrator defeats the need for testing, I disagree. The Act was created because
of the possibility that a person has been wrongfully convicted or sentenced. A person may be
wrongly convicted based upon mistaken identity or false testimony. Thus, the fact that the victim
identified the petitioner as the perpetrator should not provide a basis for denying testing.




                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE
