                                                                                                    09/18/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                Assigned on Briefs October 30, 2018

                 STATE OF TENNESSEE v. DAVID WILLIAM GARY

                       Appeal from the Criminal Court for Knox County
                          No. 107932 Steven Wayne Sword, Judge
                          ___________________________________

                                  No. E2018-00194-CCA-R3-CD
                              ___________________________________


A Knox County Criminal Court Jury convicted the Appellant, David William Gary, of
rape, and the trial court sentenced him to ten years in the Tennessee Department of
Correction. On appeal, the Appellant contends that the evidence is insufficient to sustain
his conviction, that the trial court erred by allowing testimony regarding his expressed
interest in a specific type of sexual activity, and that the trial court erred by refusing to
allow him to present evidence that a police investigator improperly influenced the
victim’s preliminary hearing testimony. Upon review, we affirm the judgment of the trial
court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

J. Liddell Kirk (on appeal) and Eric M. Counts (at trial), Knoxville, Tennessee, for the
Appellant, David William Gary.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Charme P. Allen, District Attorney General; and Leslie Nassios, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                                   OPINION

                                          I. Factual Background

      The Knox County Grand Jury indicted the Appellant for attempted first degree
murder and aggravated rape. The victim of both offenses was B.T.1 The charges
       1
           It is the policy of this court to refer to victims of sexual crimes by their initials.
stemmed from an incident that occurred at the Inn of Knoxville on the morning of
November 17, 2015. The jury convicted the Appellant of the lesser-included offense of
rape, and the trial court sentenced him as a Range I, standard offender to ten years in the
Tennessee Department of Correction. The jury acquitted the Appellant of attempted first
degree murder and could not reach a verdict on a lesser-included offense. The Appellant
later pled guilty to aggravated assault and received a concurrent sentence of three years.

       At trial, the thirty-five-year-old victim testified that in November 2015, she was
living with her twin sister in an apartment in Knoxville. The victim and her sister were
prostitutes, and the victim knew the Appellant because he had been to their apartment,
had paid to have anal sex with her sister “on a regular basis,” and had paid the victim one
time to have vaginal sex with him after she had refused to have anal sex.

       The victim said that on the morning of November 17, 2015, some friends left her
at the Regency Inn on Magnolia Avenue. She began walking on “5th or Woodbine,” and
the Appellant stopped his vehicle and asked if she needed a ride. The victim got into the
Appellant’s vehicle. He asked her to contact her sister because he wanted to engage in
anal sex, but the victim was unable to contact her sister. The victim told the Appellant
“very clearly” that she would not engage in anal sex, and he offered to pay her for vaginal
sex. The victim agreed, and the Appellant asked where they could go. At the victim’s
suggestion, they stopped at the Inn of Knoxville. Before they left the vehicle, the
Appellant paid the victim sixty dollars and told her to leave her belongings in his vehicle.
The victim complied and led the Appellant into the laundry room because she knew the
room did not have security cameras.

       The victim said that they went into the laundry room and that the Appellant stood
behind her and penetrated her vagina with his penis. The victim said that the Appellant
then penetrated her anus with his penis “as hard as he could” and that she began to bleed.
She screamed and begged him to stop, but he refused. He put his hand over her mouth
and told her to “[s]hut up and stay still.” Afterward, he told her to “wipe off” with a
towel that was in the laundry room. The victim cried as they walked back to the
Appellant’s vehicle. She told him that she was going to call the police because “that
wasn’t agreed upon.” The Appellant did not respond but was clearly angry.

       The victim said that the Appellant got into the driver’s side of his vehicle and that
she went to the passenger side to get her belongings. The Appellant rolled down the
passenger-side window but would not unlock the door. The victim reached through the
window, unlocked the door, and grabbed her leather coat and purse. The victim said that
the Appellant “pull[ed] off real fast.” The victim yelled at the Appellant and again
threatened to call the police. The Appellant stopped his vehicle in the parking lot, got
out, and ran toward the victim. The victim thought the Appellant was going to hit her

                                           -2-
and said, “Please, I’ve got kids.” She did not see the Appellant with a knife but felt him
stab her in the abdomen. He immediately ran back to his vehicle and drove away.

       Initially, the victim did not realize she was seriously injured. She said, “I had
three people walk over me and wouldn’t help me at all.” She tried to call 911 but was
unable to complete the call because her hands were too bloody, and she was “holding
[her] stomach in.” She managed to call her friend, Tina Hackler, whose number was on
“speed dial.” She told Hackler that she had been raped and stabbed and asked her to
come to the motel. The victim walked toward the motel office and collapsed on the
sidewalk outside the office.

       The victim said that Hackler found her on the ground outside the office. The
victim asked Hackler not to call anyone because she “just wanted to die,” but Hackler
called 911. The State played a recording of the 911 call, and the victim said she was
“the person who’s screaming in the background.” She acknowledged that before the
ambulance arrived, she offered Hackler money to get crack cocaine for her. The victim
surmised that she asked for the crack cocaine because she was “in shock” and had been
addicted to drugs since she became a prostitute when she was fifteen years old. Hackler
remained with the victim until the ambulance arrived.

       The victim testified that she was hospitalized for four days. During her
hospitalization, a sexual assault examination was performed, and she had “exploratory
surgery” that involved an incision “from [her] breast bone to [her] pelvic [bone].” She
was given five or six pints of blood and “a lot” of pain medication. The victim did not
recall talking with a police officer or with April Freeman, a sexual assault nurse
examiner. At the time of trial, the victim said that she had “healed on the outside” but
that she continued to suffer mentally and had pain, nightmares, and difficulty eating.

        The victim said that she identified the Appellant from a photograph lineup and at
the preliminary hearing. The victim denied taking the Appellant’s wallet. She
acknowledged that she had been arrested previously and said that during one of the
arrests, she panicked and gave the police her sister’s name. She said she told the officers
the truth “before we ever drove off.” The victim acknowledged that she had been
convicted of criminal impersonation and theft.

       The victim said that before trial, she was living “on the streets. . . . I was actually
in Memphis.” The State provided a bus ticket for her to return to Knoxville. The State
also promised to set aside an attachment that had been issued after she failed to appear in
sessions court in another case. She said that case was still pending.

      On cross-examination, the victim acknowledged that she had been drinking
alcohol before the offense. The victim explained, “I was drinking earlier that night, the
                                            -3-
night before or morning. . . . I have no clue what time it was. It was the night before,
because I had sobered up, and [my friend] was going to drop me off.”

       The victim acknowledged that she testified at the preliminary hearing that she had
to have stitches because of the anal penetration. However, she later discovered that she
did not need stitches. The victim said she was heavily medicated at the time of her sexual
assault examination and did not recall telling the nurse examiner that she met the
Appellant for oral sex.

       The victim said that the Appellant usually paid one hundred dollars for sex, that
she had agreed to have oral and vaginal sex with him only one time before the offense,
and that he had paid her one hundred dollars. However, on the day of the offense, he told
her that he would pay her only sixty dollars because she had refused to engage in anal
sex. She denied that the Appellant initially paid her forty dollars for vaginal sex and later
paid her an additional twenty dollars for anal sex. The victim could not recall if she had
oral sex with the Appellant on the day of the offense. She acknowledged that she
“probably” used narcotics the night before the offense, explaining that she was an addict.

       The victim did not recall the Appellant saying anything when he stabbed her. She
said that after the Appellant got out of his vehicle, he “ran at [her] like a football player,”
stabbed her, ran back to his vehicle, and quickly drove away. She thought he stabbed her
because she was threatening to tell the police he raped her. The victim said that at the
time of the offense, she did not have a kitchen knife or any type of weapon in her
possession.

        The victim “vaguely remember[ed]” seeing Investigator Chas Terry in the
hospital, noting, “I was heavily medicated. There’s a lot of stuff that is very choppy after
I got stabbed.” She did not recall telling Investigator Terry that the Appellant threatened
to kill her before he stabbed her. The victim denied telling Hackler that “this was about
money” and stated that “it’s never been about money.”

       Tina Trevino testified that she worked as a dental hygienist at Aspen Dental in
Sevierville for almost two years. In November 2015, the Appellant had been working
there for six months. While conducting an examination on November 16, 2015, the
Appellant showed a patient’s father a knife he had just purchased. The knife was
approximately eight or nine inches long and had a black handle and a black blade. The
Appellant mentioned that he “really liked the . . . safety feature that it had [because] it
didn’t lock as you use the knife.” Trevino asked the Appellant why he brought the knife
to work, and the Appellant responded, “You never know when you might need one.”
Trevino said that she “didn’t believe a lot of stuff [the Appellant] would say” and that she
thought he was “[p]robably not very truthful.”

                                             -4-
       Jeff Newman, the lab manager at Aspen Dental, testified that in November 2015,
he had worked with the Appellant for approximately six months and that they were
friends. The Appellant told Newman that he had a “collection of firearms.”
Occasionally, the men sat in the Appellant’s dark brown Porsche Cayenne, and the
Appellant showed Newman some of his firearms. Newman knew the Appellant also had
a few knives. Specifically, Newman recalled that during the weekend before the incident,
the Appellant had purchased a knife. He brought the knife to work on November 16.
The knife was black, approximately six inches long, and in the Appellant’s pocket. The
Appellant told Newman the knife had safety features that prevented “it from closing up
on your hand.”

       Newman said that when he arrived at work on the morning of November 17, he
saw the Appellant in the parking lot behind the building. The Appellant was “wiping the
knife down” with a white cotton towel that looked like the ones used by Aspen Dental.
Newman spoke to the Appellant and went inside the building. Shortly thereafter, the
Appellant came inside the building, and the two men ate breakfast in the breakroom.
Newman did not notice anything unusual about the Appellant’s behavior or their
conversation.

       Newman said that around 4:00 p.m., he heard a report on the radio that the police
were looking for a man driving a Porsche who had stabbed a woman that morning.
Newman recalled seeing the Appellant with a knife and jokingly told the Appellant that
the police must be looking for him. The Appellant “[s]tarted running around looking out
the back door, and—and just was really nervous and totally opposite of what his normal
demeanor was.”

       Newman said that in response to the Appellant’s erratic behavior, he got on the
internet to look for more details about the suspect. Newman learned the police were
searching for “a black man driving a Porsche Cayenne,” and he became suspicious of the
Appellant. About 6:30 p.m., the Appellant “disappeared from work for a little while” and
he was sweating when he returned.

        The next morning, the Appellant sent Newman a text message stating that he had
spent the previous night with his daughter, who was in a hospital. The text message
included a photograph of the Appellant’s daughter in the hospital. Newman said that on
November 20, Aspen Dental’s regional manager advised the employees to stay away
from the office that day because he feared the Appellant would come to work “and try to
retaliate.” The Appellant called Newman that day and asked if he “had heard anything
about the office.”

      Newman said that he and the Appellant were friends and that they talked about
personal matters, including sex. On more than one occasion, the Appellant told Newman
                                         -5-
that he had a preference for anal sex. The Appellant showed Newman “[p]ictures that
ladies had sent to him” that reflected his preference for anal sex.

       Newman said that sometime after November 17, he was in the office’s parking lot
and saw the towel the Appellant had been using to wipe off the knife. He also saw a tube
of sexual lubricant at the end of the parking lot. Newman told the police about the items,
but they were not collected for almost a year. Newman said the Appellant was known for
being dishonest.

       On cross-examination, Newman said that the blade on the Appellant’s knife was
approximately two or three inches long. Newman denied that he ever showed the
Appellant pornographic photographs. Newman acknowledged that he did not know who
put the tube of lubricant in the parking lot.

       Newman said that he had considered the Appellant to be a good friend. The
Appellant was married, had five children, and was the sole provider for his family. The
Appellant never told Newman that he moved to Tennessee from Texas because he was
“in desperate need of a job” after his office manager embezzled $250,000 and ruined his
dental business.

       On redirect examination, Newman said that the Appellant bought expensive
firearms and knives, that he paid to have sex with prostitutes, and that he never said he
had money problems. Newman agreed it was odd that the Appellant did not tell him
about the employee’s embezzlement, noting that the Appellant had talked as if he owned
other businesses, including a laundromat.

        April Freeman, an employee with the Sexual Assault Center of East Tennessee,
testified that she was a sexual assault nurse examiner. On November 17, 2015, Freeman
went to the hospital to examine a possible sexual assault victim. Freeman saw the victim
around 3:00 p.m. after the victim was released from surgery. The victim was sedated,
intubated, and not responsive. After discussions with the doctor, nurse, and detective,
Freeman postponed the victim’s examination for a couple of hours.

      Freeman said that she returned around 9:40 or 10:00 p.m. and that the victim was
no longer on a ventilator. After Freeman introduced herself and explained her services,
the victim said she had been assaulted and wanted a sexual assault examination
performed. The victim was in “excruciating pain,” so Freeman again postponed the
examination until the victim’s pain was managed.

      Freeman said that on November 19, the victim’s pain was under control, so she
was able to examine the victim. The victim was calm and cooperative. The victim told
Freeman
                                          -6-
              that she’d gotten into a car and that she had been paid for a
              sexual act, vaginal sex, but when they got into the
              laundromat, that he started getting rough with her. She got
              scared, and he put his penis into her rectum, and she told him
              to stop, and that he ejaculated inside of her.

              ....

              . . . . She said that she had stuff in his car, and she asked him
              to let her get her stuff. Rolled down the window. She
              reached in to open the door, told him she was going to call the
              police, and when she turned to leave, she was walking away,
              he got out of his car and said, “I’m going to kill you,” and
              then stabbed her in the abdomen and ran away, got into his
              black car and drove away.

The victim told Freeman she had bathed, showered, urinated, brushed her teeth, and
changed her clothes since the assault.

        During the examination, Freeman noticed that the victim had bandages on her
abdomen. Freeman took external anal swabs but did not perform an internal rectal exam
because of the risk of further injury to the victim. Freeman acknowledged that the victim
could have had an internal injury as a result of anal penetration and that it might not have
been detected by an external examination. Freeman examined the victim forty-eight
hours after the injury and noted that any injury could have healed. Freeman further noted
that it was not uncommon for a victim of sexual assault to have no visible injuries.

      The parties stipulated to the introduction of the victim’s medical records from the
University of Tennessee Medical Center. Freeman read from the records that on
November 17, the victim was given Dilaudid, a narcotic pain medication, and
Lorazepam, an anti-anxiety medication. Freeman said it was common for a person given
heavy narcotics and anti-anxiety medication to be unable to fully report what had
happened.

        On cross-examination, Freeman said that the victim did not report using drugs or
alcohol before or after the assault. Freeman said that when she spoke with the victim on
the night of November 17, the victim said that she had met the Appellant for oral sex.
The victim was in obvious pain and asked for pain medication, but she had been given
pain medication one hour earlier. The victim declined any further examination until her
condition improved. Freeman acknowledged that when she saw the victim two days
later, the victim said she met the Appellant for vaginal sex. Freeman refused to say that
                                            -7-
the victim “changed her story,” explaining that the victim “wasn’t on as much pain
medicine.”

        Freeman said that she completed her examination and collected evidence for a
sexual assault kit, including two anal swabs. The victim’s hospital records indicated a
total of sixty dollars was collected from the victim’s belongings: twenty dollars and then
forty dollars. Freeman did not know if the forty dollars was found “afterwards” or if “it
was in her belongings. I’m not sure. It doesn’t say.”

      On redirect examination, Freeman agreed that the victim would have bled to death
without medical intervention.

       Knoxville Police Investigator Chas Terry testified that on November 17, 2015, he
went to 1500 Cherry Street in response to a report of a possible sexual assault and
stabbing. Upon his arrival, he learned that the victim had been taken to the hospital.
Investigator Terry spoke with Hackler and Hackler’s boyfriend at the scene. Investigator
Terry learned the perpetrator was a black male in his late thirties or early forties who was
driving a dark-colored, possibly black, sport-utility vehicle (SUV). Investigator Terry
retrieved security videos from the motel office and watched the videos before going to
the hospital to see the victim.

       Investigator Terry said that the victim was unable to talk with him that night but
that he spoke with her at the hospital a couple of days later. When they spoke, the victim
“was not in good condition,” “could barely talk,” and “was obviously in a significant
amount of pain and discomfort.” The victim identified the Appellant as the perpetrator.
The victim acknowledged that she had “consented to some form of sexual intercourse”
with the Appellant but asserted that he had anally raped her.

        Investigator Terry stated that near the beginning of the investigation, he received a
call from a staff member at Aspen Dental who identified the Appellant as a possible
suspect. The caller said the Appellant had a vehicle matching the description of the
suspect’s vehicle, namely a dark-colored Porsche Cayenne. On November 20,
Investigator Terry called the Appellant and asked him to come to the police station. The
Appellant said, “I’ll do that, but first I would like to contact my attorney. . . . I will call
you right back.” The Appellant did not return Investigator Terry’s call.

       Investigator Terry said that he began attempting to locate the Appellant but that “it
soon became painfully obvious that [he] was no longer in the area.” One of the
Appellant’s neighbors had seen the Appellant’s family loading their belongings into a
minivan and leaving on November 20. Investigator Terry knew the Appellant was
married and had several small children. He wanted to make sure the family had left
willingly and had not been taken by force. Investigator Terry spoke with members of the
                                             -8-
Appellant’s wife’s family who confirmed that the Appellant’s family was in Minnesota
and gave Investigator Terry the family’s address.

       Investigator Terry contacted Minnesota authorities, and the Appellant was arrested
and returned to Knoxville. After securing a search warrant, Investigator Terry obtained a
DNA sample from the Appellant.

       Investigator Terry said that the victim identified the Appellant from a photograph
lineup. Initially, Investigator Terry was not aware of the severity of the victim’s injuries.
He eventually learned that she was hospitalized for seven days, that her hepatic artery had
been severed during the attack, that she lost a lot of blood, and that her condition had
deteriorated as she was transported to the hospital.

        The State showed the jury security video footage of the motel parking lot on the
morning of the offense. The video showed the Appellant’s vehicle arriving in the parking
lot around 8:03 a.m., and the Appellant and the victim exiting the vehicle. Another part
of the video showed that at 8:26 a.m., the Appellant and the victim exited the laundry
room and walked toward the Appellant’s vehicle. The victim appeared to be holding a
white towel. The Appellant got into the driver’s side of his vehicle. The victim was
standing outside the vehicle trying to open the front passenger door. When the door
opened, the victim took her coat out of the vehicle, and the Appellant drove away at a
high rate of speed. Before he left the parking lot, the Appellant stopped the vehicle, got
out, and closed the passenger door. He ran to the victim, stabbed her, and she fell to the
ground. The Appellant did not appear to take anything from the victim before he ran
back to the vehicle. Investigator Terry said the police were unable to recover the weapon
that the Appellant used to stab the victim.

      On cross-examination, Investigator Terry acknowledged that he could not
determine from the video if the victim was in pain as she was walking from the laundry
room to the Appellant’s vehicle. In his report, Investigator Terry stated that he did not
observe any violence between the Appellant and the victim as they walked to the vehicle.

       Investigator Terry said that many of the prostitutes he had encountered were
homeless and victims of rape. He acknowledged that some prostitutes carried weapons to
protect themselves.

        Investigator Terry said he called the Appellant a couple of days after the offense.
He did not go to the Appellant’s home because he knew that the Appellant had weapons,
that the Appellant’s wife and small children were in the home, and that the Appellant had
committed a stabbing. Investigator Terry feared that if the police appeared at the
Appellant’s house “demonstrating a show of force,” it could “create a hostage situation.”

                                            -9-
       On redirect examination, Investigator Terry said that warrants for the Appellant’s
arrest were issued on November 19. Before the Appellant and his family moved, they
emptied their bank account. Their telephone numbers were changed several times after
they moved.

       On recross-examination, Investigator Terry acknowledged that when he spoke
with the Appellant on November 20, he did not reveal that the arrest warrants had been
issued. After the Appellant was arrested in Minnesota, he “eventually” waived
extradition and agreed to return to Tennessee.

      The parties agreed to the following stipulation:

             Exhibit 11 is a report from Special Agent Hugh Proctor who
             is a serologist with the Tennessee Bureau of Investigation.
             This is an official biology report, and the report shows that
             Agent Proctor performed DNA testing on the anal swabs
             taken from [the victim] at UT Hospital on November the
             19th, 2015, and compared it with the buccal swabs that were
             collected from the [Appellant], and the evidence—the report
             shows that the [Appellant’s] DNA was found in the sperm
             fraction of the buccal of the anal swabs taken from [the
             victim’s] body on November the 19th.

Defense counsel also stipulated that identity was not an issue and that the Appellant had
sexual intercourse with the victim.

       The Appellant testified that he was a general dentist and that he was employed at
Aspen Dental at the time of the offense. On the morning of November 17, 2015, he left
his house to go to the bank. As he was driving to the bank, he saw the victim, who he
knew was a prostitute. He said that they had seen each other at least four times and that
they always did “the same three things. It’s oral sex, anal sex, and vaginal sex.” The
Appellant acknowledged that he knew the victim’s sister, who was also a prostitute, and
that he had engaged in sex with her on three or four occasions.

       The Appellant said that he allowed the victim to get into his vehicle and that they
agreed he would pay her forty dollars for anal sex. She asked if he wanted to go to her
apartment. He asked if she still had the same address, and she responded that she had
moved. The Appellant continued to drive, and they talked until the victim directed him
to make a U-turn. The Appellant asked if the victim was okay, and she responded that
she was “cool.” The Appellant remarked that the victim smelled like alcohol, and she
replied, “It’s not that much liquor.” The victim gave him directions to the Inn of
Knoxville on Cherry Street, explaining that she had a room there.
                                          - 10 -
       The Appellant said that when they arrived at the motel, he gave the victim forty
dollars from his wallet before they got out of the vehicle. The victim admitted that she
did not have a room at the motel but said that she knew where they could go. The victim
got out of the vehicle first. The Appellant hesitated but then followed her into the
laundry room. The victim partially blocked the door with a large yellow bin and then
bent over and pushed down her pants. When she stood up, the Appellant noticed that she
had put a knife on the floor and placed her foot on top of the knife. The knife had a wood
handle.

       The Appellant said the victim knelt in front of him and performed oral sex on him.
She then used a lubricant which she had brought with her to prepare for anal sex. After
several minutes of anal sex, the victim said she was uncomfortable and suggested they
have vaginal sex. The victim told the Appellant that if he would give her an additional
twenty dollars, she would let him “finish” anally. The Appellant agreed. After they were
finished and dressed, he gave her twenty dollars from his pocket.

       The Appellant said they wiped off with some towels and walked out of the laundry
room. As they were walking to his vehicle, the victim mentioned that she had seen
money in his wallet and asked for more money. The Appellant refused and got into his
vehicle. The victim’s purse and leather coat were on the passenger seat of the vehicle,
and she had a bottle containing a dark purple liquor on the floorboard. The Appellant’s
wallet was on top of the center console. The Appellant handed the victim her purse and
leather coat through the open passenger window and leaned over to retrieve the bottle
from the floorboard. As he did so, he knocked his wallet onto the passenger seat. The
victim reached through the window, unlocked the door, and opened it. The Appellant
surmised that the victim must have grabbed his wallet from the seat.

       The Appellant said that as he began to drive away, the victim shouted, “F[**]k
you, you stupid n[***]er. I got your sh[*]t, and you ain’t going to do sh[*]t about it. I
hope—I wish you’d come back.” The Appellant looked around and noticed his wallet
was missing. The victim had her leather coat in her right hand and his wallet in her left
hand. The Appellant stopped the vehicle when he saw that the victim had his wallet. He
ran toward the victim with his knife in his left hand, but he did not remember taking it out
of his pocket. He reached toward the victim “with both hands at the same time” and
grabbed his wallet, and the victim fell to the ground. The Appellant ran back to his
vehicle. As he drove away, he looked in his rearview mirror and “could still see her
agitated, swinging her arms, and hear her cursing me out.” The Appellant thought that he
“didn’t really do anything to her, because she’s still standing up.” He said, “I had no
intentions of hurting her. I know that I injured her. I did not know [to] what extent I
injured her. It happened real quick.”

                                           - 11 -
       The Appellant said that after leaving the victim, he drove to Sevierville to pay a
speeding ticket. As he drove, he was shaking. He looked at the knife in his hand and
noticed some blood on the blade. He wiped the blood off the blade with a tissue. After
paying his speeding ticket, he went to work.

       The Appellant said that he had several pocketknives. The pocketknife he had that
day was approximately six inches long, and the blade was two and one-half inches long.
The pocketknife was not new and did not open smoothly, so he took it to work to
lubricate it with a substance the dental office used on stainless steel. The Appellant
explained that when Newman initially saw him, the Appellant was shaking the excess
lubricant off the knife. Later, Newman joked that the police were looking for the
Appellant. When the Appellant asked what Newman was talking about, Newman
responded that he had heard on the radio “that they’re looking for a black guy driving a
Porsche.”

       The Appellant said that he instantly became “paranoid” and started pacing. He
called his wife, who did not know he had been seeing prostitutes. He told her that he
“didn’t do those things that they said [he] did” and that he had “cheated on her.” The
Appellant was embarrassed, afraid he would lose his family, and did not want his family
exposed to the news about the offense. The Appellant said:

             I asked my wife where her family was from, and I loaded up
             our valuables, some kids’ toys, and what money we had in the
             safe, which was about $200. The reason why I loaded up
             valuables was because I don’t know how long this was going
             to take, and I wanted to make sure that my family would have
             some way of getting an income, meaning by pawning
             whatever jewelry, watches, firearms I had, and I moved my –
             my family to the only support system they have, which was
             Minnesota.

       The Appellant acknowledged telling Investigator Terry that he would call
Investigator Terry after he obtained an attorney. The Appellant said that he spoke with
an attorney, who called Investigator Terry and left a voice mail message. The Appellant
then saw a second attorney. The Appellant maintained that he was willing to speak with
Investigator Terry.

       The Appellant said that while in Minnesota, he secured housing for his family and
called his mentor, whose daughter was an attorney. His mentor advised him to return to
Tennessee, and the Appellant responded that he intended to return after he obtained an
attorney. About that time, the Appellant was arrested by Minnesota authorities. He
waived his extradition rights and voluntarily returned to Tennessee.
                                         - 12 -
       The Appellant said that he had always wanted to be a doctor. In 2012, he
purchased a dental practice in El Paso, Texas. Within the first three months, the office
manager embezzled a quarter of a million dollars from the business, which forced the
Appellant to file bankruptcy and close the practice. The Appellant’s wife did not work
outside the home, and they had five children, so he looked for other employment. He
thought the position at Aspen Dental “seemed okay,” so he moved to Tennessee. His
family joined him three or four months later. The Appellant said that while he was alone
in Tennessee, he thought about the financial and legal troubles caused by the
embezzlement. He became depressed and hired some prostitutes.

      The Appellant acknowledged that before moving to Minnesota, he closed his local
bank account, which had a balance of approximately $400. He explained that he needed
the money for gas and food.

       The Appellant said he did not try to kill the victim and denied vaginally or anally
raping her. He maintained that he and the victim had consensual anal sex on at least three
prior occasions. He stated that he was not concerned when he saw the victim’s knife,
noting that “she didn’t threaten me with it or anything like that.”

        The Appellant said he stopped his vehicle in the parking lot because the passenger
door “swung open.” When he got out to close the door, he looked at the victim, and she
taunted him with his wallet. He said that “the incident happened” when he “realized [his]
wallet was missing, and then she started taunting [him] about having it, flailing her arms
around.” The Appellant said that his wallet contained his identification cards, which
listed his address, and a spare key. He was concerned because the victim and her sister
did not know his “real identity,” and his identification cards would have provided them
“access to [his] children.” The Appellant did not think he had injured the victim until he
noticed blood on the blade of the knife.

       On cross-examination, the Appellant said that he had practiced dentistry in New
Mexico, Texas, and Tennessee. He acknowledged that his license to practice dentistry
had been suspended in all three states, but he did not say when the suspensions took
effect. The Appellant said that he had been in the Air Force and that he had extensive
firearms training. He collected knives, firearms, and “long arms and bow and arrows.”

       Regarding the knife, the Appellant said that it was “somewhere between here and
Minnesota” and that he had “disposed” of it in a motel dumpster. The Appellant agreed
that Newman had seen him with the knife he had used to stab the victim. The Appellant
further agreed that he was calm when he arrived at work and that he became nervous and
paranoid when Newman said the police were looking for him. The Appellant said he did
not leave work but went outside “to get some air.”
                                          - 13 -
       The Appellant said that the pocketknife was the only weapon in his possession on
the morning of the offense and that the knife was in the left front pocket of his pants. He
thought he must have removed the knife from his pocket and opened it after he began
running toward the victim. The Appellant said he “inadvertently injured her with [his]
knife.” The Appellant said that the knife was “spring loaded,” explaining that “[i]f you
just apply a little pressure on the hilt of the knife on the blade part, it will pop open and
lock open.” He cleaned the victim’s blood off the blade then closed the blade as he was
driving. The Appellant denied telling Trevino that “[y]ou never know when you’re going
to need [a knife].”

        The Appellant agreed that he worked at Aspen Dental on November 17. He said
that later that evening, the news began broadcasting reports about the victim’s stabbing.
The Appellant did not go to work on November 18 and did not see any news reports that
day because his infant daughter was in the hospital. He did not look at any news reports
until he was in Minnesota. He acknowledged that he sent the owner of Aspen Dental a
photograph of his daughter in a hospital bed even though he was not required to send it.
He said the owner had sent a photograph of his daughter who was in the hospital with a
broken arm.

       The Appellant acknowledged that Investigator Terry called his cellular telephone
on November 20. The Appellant denied “switching” telephones before going to
Minnesota but acknowledged that he bought new cellular telephones in Minnesota. He
explained that he heard a sound that made him think someone was tracking him.

       The Appellant said that he “stayed to” himself at work and denied telling Newman
that he picked up prostitutes. He acknowledged showing Newman photographs on his
cellular telephone but said that “it was never of anal sex.” He stated that he and Newman
“joked around” and “showed each other porn pictures, [but] they were not the typical
porn pictures. They were meant as a joke, . . . [i]t’s nothing erotic at all.”

       The Appellant acknowledged that when he was arrested in November 2015, he
was five feet, ten inches tall and weighed approximately 245 pounds. The victim was
shorter than the Appellant, “slight in her build,” and significantly smaller than he. The
Appellant said he “reacted” when he saw that the victim had his wallet.

       After his conviction the Appellant filed a timely notice of appeal. On appeal, the
Appellant contends that the evidence is insufficient to sustain his rape conviction because
the victim consented to anal sex, that the trial court erred by overruling his objection to
the State’s questioning Newman about the Appellant’s interest in anal sex, and that the
trial court erred by refusing to allow the Appellant to present evidence to suggest
Investigator Terry improperly influenced the victim’s preliminary hearing testimony.
                                           - 14 -
                                       II. Analysis

                             A. Sufficiency of the Evidence

       On appeal, a jury conviction removes the presumption of the Appellant’s
innocence and replaces it with one of guilt, so that the Appellant carries the burden of
demonstrating to this court why the evidence will not support the jury’s findings. See
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The Appellant must establish that no
reasonable trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P.
13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the
appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       The guilt of a defendant, including any fact required to be proven, may be
predicated upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999). Even though convictions may be established by different forms of
evidence, the standard of review for the sufficiency of that evidence is the same whether
the conviction is based upon direct or circumstantial evidence. See State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011).

       Rape is the “unlawful sexual penetration of a victim by the [Appellant]” and “[t]he
sexual penetration is accomplished without the consent of the victim and the [Appellant]
knows or has reason to know at the time of the penetration that the victim did not
consent[.]” Tenn. Code Ann. § 39-13-503(a)(2). “Sexual penetration” is defined as
“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person’s body or of any object into the genital or anal
openings of the victim’s, the [Appellant’s], or any other person’s body, but emission of
semen is not required.” Tenn. Code Ann. § 39-13-501(7).

       Taken in the light most favorable to the State, the proof adduced at trial revealed
that the Appellant picked up the victim, a prostitute whom he previously had paid for
vaginal sex. The victim would not agree to participate in anal sex, so the Appellant asked
her to call her sister, who had engaged in anal sex with the Appellant. After the victim
was unable to contact her sister, the Appellant agreed to pay to have vaginal sex with the
                                           - 15 -
victim. They drove to the Inn of Knoxville to complete the transaction. The Appellant
paid the victim sixty dollars for vaginal sex, and they went into the motel’s laundry room,
which did not have security cameras. The Appellant penetrated the victim’s vagina with
her consent but then penetrated her anus without her consent. When she protested, he put
his hand over her mouth and told her to be quiet and still. The victim said the penetration
hurt. Afterward, the Appellant told her to wipe off with a towel. They returned to the
Appellant’s vehicle, and the victim retrieved her belongings. As the Appellant drove
away, the victim shouted that she was going to call the police and tell them the Appellant
had raped her. The Appellant immediately stopped his car in the parking lot, ran toward
the victim, and stabbed her with a knife he had in his pants pocket. The Appellant
acknowledged he stabbed the victim but said he did not know how seriously he injured
her.

       On appeal, the Appellant acknowledges that he engaged in vaginal and anal sex
with the victim but contends that all of the acts were consensual. He maintains that
because of the victim’s prior convictions of criminal impersonation and theft and her use
of “mind-altering narcotics and alcohol . . . near the time of the incident,” her testimony
was inconsistent and not credible. It is well-established that determining the credibility
of witnesses is within the purview of the jury. See State v. Millsaps, 30 S.W.3d 364, 368
(Tenn. Crim. App. 2000) (stating that “the weight and credibility of the witnesses’
testimony are matters entrusted exclusively to the jury as the trier[ ] of fact”). In the
instant case, the jury clearly resolved the issue of credibility in the State’s favor. We may
not now reconsider the jury’s credibility assessment. See State v. Carruthers, 35 S.W.3d
516, 558 (Tenn. 2000). Therefore, we conclude that the proof was sufficient to sustain
the Appellant’s conviction of rape.

                       B. Testimony of the Appellant’s Co-Worker

       Immediately before trial, defense counsel moved to prohibit the State from
introducing testimony from the Appellant’s co-worker regarding the Appellant’s
statements about his sexual preferences and photographs or videos he had shared which
depicted his preference for anal sex. Defense counsel initially stated, “I think that this is
the state trying to use specific instances of conduct to—to prove action and conformity
therewith, and I don’t think that it’s appropriate for [the jury] to hear that.” Defense
counsel argued that

              you’ll have the testimony of the alleged victim of what
              happened. I think that you’ll have evidence that [the
              Appellant] did have sex with [the victim] multiple times and
              had sex with . . . the victim’s sister multiple times, and I think
              that there’ll be testimony as to the fact that—that he had anal
              sex with these—with these two women, and the fact that he
                                            - 16 -
              showed videos or had locker room talk or whatever with a
              male coworker or talked about sexual exploits, the only
              purpose of that is to shock the conscience of the jury and to
              say, “Wow, what a perverted, deviant, bad guy.”

Defense counsel contended that the evidence would be unfairly prejudicial. The State
responded that the defense clearly intended to “vigorously attack” the victim’s credibility,
particularly on the issue of consent; accordingly, the testimony of the Appellant’s co-
workers was relevant to corroborate the victim’s testimony regarding the Appellant’s
sexual preferences.

       During direct examination, Newman testified that he and the Appellant were co-
workers and that they had talked about sexual matters. Newman also considered the
Appellant to be a friend. The Appellant told Newman that he had a preference for anal
sex, and he showed Newman photographs that demonstrated his preference for anal sex.

       The trial court, citing Tennessee Rules of Evidence 401, 402, and 403, held that
the testimony was relevant on the issue of consent “to show that the victim, although
she’s willing to engage in sex for money, was not willing to engage in anal sex, and so if
the [Appellant] had a particular desire for that type of sexual act, it would go to motive to
pass up what she’s willing to offer for money and force himself upon her.” The court
noted that the risk of unfair prejudice caused by the jury’s thinking the Appellant was
“this bad guy” because he had a particular sexual interest was “lowered” because the
Appellant “admitt[ed] that he ha[d] engaged in anal sex with both of these women in the
past.” The court further explained that the Appellant had admitted he paid prostitutes for
anal sex; therefore, “it’s like it’s not as bad to talk about it with a coworker than it is to
engage in it. So he’s—he’s admitting to something I think is worse than what the
[S]tate’s trying to get in.”

      The Appellant also raised the issue in his motion for new trial. In denying the
Appellant’s motion for new trial, the trial court said:

                     As to the testimony of Mr. Newman, I think that was
              the right decision for sure because the question was . . . did
              she consent to this particular type of penetration. That was
              the big issue, and so I felt like, and I think I’m right, that
              when she’s saying, “I don’t consent to that. I don’t do that,”
              and this is somebody that was insistent upon it and had a
              particular proclivity to the extent that shows that they really
              had a desire to do that, maybe a desire to the extent that that
              would overcome someone else’s resistance to engage in it
              consensually, and that—I think I was right in that decision.
                                            - 17 -
       On appeal, the Appellant argues that the testimony should have been excluded
under Tennessee Rule of Evidence 403. He further argues that Newman’s testimony
regarding the Appellant’s sexual preferences could have been construed by the jury as
“suggestive of questionable character.” Specifically, the Appellant contends that
Newman’s testimony could have created the impression that the Appellant was a “vulgar,
unprofessional person” because he discussed sexual matters with a co-worker at work.
The State responds that the trial court did not err by admitting the evidence. We agree
with the State.

       “‘Relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401; see also State v.
Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999). Tennessee Rule of Evidence 402
provides that “[a]ll relevant evidence is admissible except as [otherwise] provided . . . .
Evidence which is not relevant is not admissible.” However, even relevant evidence
“may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R.
Evid. 403. It is within the trial court’s discretion to determine whether the proffered
evidence is relevant; thus, we will not overturn the trial court’s decision absent an abuse
of discretion. State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).

       We agree with the trial court that Newman’s testimony regarding the Appellant’s
professed preference for anal sex was relevant to the issues at trial and that, while
prejudicial, its probative value was not substantially outweighed by unfair prejudice.
Newman’s testimony corroborated the victim’s testimony that the Appellant preferred
anal sex, that he asked the victim to contact her sister when the victim refused his request
for anal sex, and that the Appellant had anal sex with the victim without her consent.
Moreover, the Appellant admitted that he had anal sex with the victim and her sister on
multiple occasions. Although the jury may have considered the Appellant’s discussing
sexual matters with a co-worker to be unprofessional, we cannot conclude that the
evidence was so unfairly prejudicial that it substantially outweighed the probative value.
Our supreme court has stated that

              Rule 403 is a rule of admissibility, and it places a heavy
              burden on the party seeking to exclude the evidence.
              Excluding relevant evidence under this rule is an
              extraordinary remedy that should be used sparingly and
              persons seeking to exclude otherwise admissible and relevant
              evidence have a significant burden of persuasion.

                                           - 18 -
State v. James, 81 S.W.3d 751, 757-58 (Tenn. 2002) (citations and internal quotation
marks omitted). The trial court did not abuse its discretion in allowing the testimony.
See State v. Maurice McAllister, No. M2014-02022-CCA-R3-CD, 2015 WL 9181067, at
*10 (Tenn. Crim. App. at Nashville, Dec. 16, 2015); State v. Donald Korpan, No. 89-
261-III, 1991 WL 1345, at *6 (Tenn. Crim. App. at Nashville, Jan. 11, 1991). The
Appellant is not entitled to relief on this issue.

                                   C. Investigator Terry

       During trial, defense counsel informed the trial court that he wanted to question
Investigator Terry about allegations that Investigator Terry improperly influenced the
victim’s testimony at the preliminary hearing. The trial court held a jury-out hearing.
During the hearing, Janet Biggs testified that at the time of the preliminary hearing, she
was a legal assistant for Pope and Associates. At the request of defense counsel, Biggs
took a copy of the victim’s criminal history to the courtroom. Biggs remained there to
watch the preliminary hearing and sat in the second row. Investigator Terry was sitting in
the row in front her. Biggs said that during the victim’s cross-examination, the victim
looked directly at Investigator Terry before answering every question. Investigator Terry
would nod “‘yes’ or ‘no,’” and the victim would answer defense counsel’s questions.
Biggs said that she saw Investigator Terry “give [the victim] the answer” three or four
times. After the preliminary hearing, Biggs told defense counsel what she had seen
because she knew it was improper.

        Defense counsel advised the trial court that he wanted to ask Investigator Terry
“flat out” if Investigator Terry was giving the victim answers to questions at the
preliminary hearing. The trial court asked defense counsel, “Let’s say that—let’s say that
he was. . . . What does that go to?” Defense counsel surmised that the victim’s memory
of the events was questionable and that Investigator Terry had to help her “stay on task”
at the preliminary hearing. Defense counsel stated that he was not trying to impeach
Investigator Terry but that he wanted to ask the officer “about what he did” because “the
jury is entitled to know if an officer is influencing the testimony of a witness at any stage
of the trial.” The trial court responded,

                      You’re talking about something that happened before,
              and you crossed her on prior testimony, but you can’t ask him
              about her responses to—I mean, we don’t even know that she
              was seeing anything, and, you know, come—I tell you from
              sitting up here over the last five years, everybody out there in
              the audience is shaking their heads yes and no. It happens all
              the time. Now we don’t have any evidence that she saw that.
              She—you should have asked her that question.

                                           - 19 -
The trial court denied defense counsel’s request to cross-examine Investigator Terry
“about whether or not he was shaking his head yes or [no] when [the victim] testified.”
The trial court also ruled that Biggs’ testimony regarding her observation of the victim’s
responses at the preliminary hearing was irrelevant.

       On appeal, the Appellant contends that the victim’s credibility as to whether she
consented to the anal penetration was “critical” to the State’s case; therefore, the trial
court’s refusal to allow him to present evidence that the victim needed visual cues from
Investigator Terry to answer questions at the preliminary hearing violated his right to
present a defense under the Sixth Amendment and the Due Process Clause of the
Fourteenth Amendment. We disagree.

        Initially, we note that the Appellant did not cite to any rule of evidence at trial that
would have allowed him to cross-examine Investigator Terry about possibly influencing
the victim’s testimony at the preliminary hearing, and he did not make an offer of proof
regarding Investigator Terry’s contemplated testimony. See Tenn. R. App. P. 36(a); see
Tenn. R. App. P. 103(a)(2). He also does not cite to any rule of evidence on appeal. See
Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7). In any event, the
Appellant essentially wanted to impeach the victim’s credibility at trial by having
Investigator Terry testify that he gave the victim visual cues during her preliminary
hearing testimony. However, Tennessee Rule of Evidence 608(b) provides that
“[s]pecific instances of conduct of a witness for the purpose of attacking or supporting
the witness’s character for truthfulness, other than convictions of crime as provided in
Rule 609, may not be proved by extrinsic evidence.” “Extrinsic evidence is ‘evidence
that is calculated to impeach a witness’s credibility, adduced by means other than cross-
examination of the witness. The means may include evidence in documents and
recordings and the testimony of other witnesses.’” Thomas L. Grimes v. Helen Cornell,
No. M2010-01461-COA-R3-CV, 2011 WL 2015519, at *7 (Tenn. Ct. App. May 23,
2011) (quoting Black’s Law Dictionary (9th ed. 2009)). Therefore, under the plain
language of Rule 608(b), defense counsel’s use of extrinsic evidence to impeach the
victim would have been improper. Accordingly, the trial court did not abuse its
discretion by ruling that the evidence was inadmissible. See State v. Reid, 91 S.W.3d
247, 303 (Tenn. 2002).

                                       III. Conclusion

       Finding no reversible error, we affirm the judgment of the trial court.



                                                      _________________________________
                                                      NORMA MCGEE OGLE, JUDGE
                                             - 20 -
