        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 26, 2013

               JAMES PERRY HYDE v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Hamblen County
                      No. 11CR390      Thomas Wright, Judge




                      No. E2012-01243-CCA-R3-PC-JULY 31, 2013


Petitioner, James Perry Hyde, has appealed from the Hamblen County Criminal Court’s
dismissal of his Petition for Forensic DNA Analysis pursuant to Tennessee Code Annotated
section Title 40, Chapter 30, Part 3. After review of the entire record, we conclude that the
analysis sought by Petitioner is not included within the statutory definition of “DNA
analysis.” We therefore affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OBERT W. W EDEMEYER, JJ., joined.

Stephen Ross Johnson, Knoxville, Tennessee, for the appellant, James Perry Hyde.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Greg W. Eichelman, District Attorney General; and Victor Vaughn, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

         Following a jury trial in July 1993, Petitioner was convicted of rape of a child and was
sentenced to serve twenty-five years’ incarceration in the Tennessee Department of
Correction. The conviction and sentence were affirmed on direct appeal to this court. State
v. James Perry Hyde, No. 03C01-9401-CR-00010, 1996 WL 426543 (Tenn. Crim. App. July
31, 1996) perm. app. denied, concurring in results only (Tenn. March 2, 1998). The proof
at trial was that Petitioner committed the offense in September 1992, by inserting an enema
device filled with cough syrup into the victim’s rectum. Id. at *6. Petitioner gave a
statement to an investigator with the District Attorney General’s office, which was summed
up in the investigator’s testimony at trial as follows:

                [Petitioner] told me that on September 14, 1992, that he could
         remember having [the victim] take off her clothes. He said he then
         remembered giving [the victim] an enema with some cough syrup and he
         placed it in her rectum. He told me he loved [the victim] very much. Said,
         I can’t remember anything else that happened. I remember it happening
         upstairs in the bathroom. This happened in the morning hours after [his
         wife] went to work. I don’t know why I did this.

Id.

      This court further summarized the investigator’s testimony about Petitioner’s
statement regarding the rape as follows:

                 According to [the investigator] the appellant refused to swear that the
         statement was true due to his religious beliefs. However, he did state, “This
         did happen in Hamblen County, Tennessee, and I am giving the statement
         to get it off my conscience and to help [the victim].” Williamson
         specifically asked the appellant whether he was making the statement “so
         [the victim] would leave him alone” or because it was the truth. He replied
         that the statement was true.

Id.

        Petitioner, who was fifty-one years old at the time of his trial, testified in his own
defense. He denied giving the victim a cough syrup enema and denied ever having any
sexual contact with the victim. Id. at *7. Petitioner explained the inculpatory statements to
police by stating the interview was intense, he was called a liar, he went into shock, and he
“would have probably signed or done anything to get out of there.” Id. at *8. Petitioner also
testified that he did not refuse to swear that the statement was true because of his religious
beliefs; rather, Petitioner asserted that he refused to swear to the truth of the statement simply
because the statement was not true.

        Petitioner seeks DNA testing to confirm whether or not female epithelial skin or
mucous membrane cells are in or on the enema device. Petitioner submitted the affidavit and
supplemental affidavit of a forensic serologist/DNA analyst, who concluded, among other
things, that if the enema device was actually used as the proof showed at trial, then epithelial



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skin cells or mucous membrane cells of the victim should still be on the device, even if
Petitioner had used it before it was seized and even if it had been washed.

       Relying upon our supreme court’s opinion in Powers v. State, 343 S.W.3d 36 (Tenn.
2011), Petitioner argues that the Post-Conviction DNA Analysis Act (Tenn. Code Ann. §§
40-30-301 – 40-30-313) requires the enema device to be subjected to DNA testing.
Petitioner’s theory is that the testing will confirm the lack of any female epithelial skin cells
or mucous membrane cells on the device and thus prove his innocence of the crime for which
he was convicted, or that it is more likely than not he would not have been convicted.

        Controlling the issue on appeal is the fact that Petitioner has no desire to compare
DNA evidence found on the enema device with the DNA of any known person (such as the
victim) or any as yet unknown perpetrator (such as from a DNA database). Petitioner’s sole
goal is to use DNA testing to show a lack of evidence to support his conviction, and not to
use DNA testing for identification of the perpetrator of a crime.

     Thus, Petitioner’s reliance upon Powers is misplaced. The issues and the holding in
Powers were stated as follows:

        We granted the petitioner’s application for permission to appeal to
        determine (1) whether the General Assembly intended to permit petitioners
        proceeding under the Act to use DNA database matches to satisfy their
        burden and (2) whether the Court of Criminal Appeals’ interpretation of the
        statute served to preclude the development of scientific evidence supportive
        of actual innocence. We hold that the Post- Conviction DNA Analysis Act
        permits access to a DNA database if a positive match between the crime
        scene DNA and a profile contained within the database would create a
        reasonable probability that a petitioner would not have been prosecuted or
        convicted if exculpatory results had been obtained or would have rendered
        a more favorable verdict or sentence if the results had been previously
        available.

Powers, 343 S.W.3d at 39.

       The interpretation of the Act which is mentioned above in the Powers opinion is this
court’s holding in Crawford v. State, E2002-02334-CCA-R3-PC, 2003 WL 21782328 (Tenn.
Crim. App. Aug. 4, 2003). As quoted in Powers, the holding of Crawford which was
abrogated by Powers is that the definition of “DNA analysis” contained in Tennessee Code
Annotated section 40-30-202 only permits “DNA analysis which compares the petitioner’s



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DNA samples to DNA samples taken from biological specimens gathered at the time of the
offense.” Powers, 343 S.W.3d at 49 (quoting Crawford, at *3).

       The holding in Powers does not require DNA analysis of a trial exhibit to determine
the presence or absence of DNA which might belong to the victim. In order to determine if
the DNA Analysis Act is applicable as provided in Tennessee Code Annotated sections 40-
30-304 and 40-30-305, the type of testing requested must still fit the definition of “DNA
analysis” contained in Tennessee Code Annotated section 40-30-302. See Powers, 343
S.W.3d at 53-54 (while we have determined that the Act contemplates the type of DNA
analysis sought by the Petitioner, the remaining question is whether he is entitled to it under
the facts. . .”

        Tennessee Code Annotated section 40-30-302 states that “‘DNA analysis’ means the
process through which deoxyribonucleic acid (DNA) in a human biological specimen is
analyzed and compared with DNA from another biological specimen for identification
purposes.” (emphasis added). In essence, Petitioner seeks to attack the sufficiency of the
evidence to support his conviction for rape of a child. He hopes to do this by poof that DNA
from the female victim cannot be located in or on an enema device used twenty years ago in
the commission of the crime. This type of DNA analysis is not authorized by the plain
language of the statute, or in the holding of our supreme court in Powers. Petitioner is not
entitled to relief in this appeal.

                                      CONCLUSION

       The judgment of the trial court is affirmed.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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