                                                                                         02/22/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 17, 2019

               STATE OF TENNESSEE v. FRANCISCO GOMEZ

                Appeal from the Circuit Court for Rutherford County
                          No. F-75389 Royce Taylor, Judge
                     ___________________________________

                           No. M2018-00529-CCA-R3-CD
                       ___________________________________


Defendant, Francisco Gomez, was convicted of rape of a child and aggravated sexual
battery by a Rutherford County jury. The trial court ordered Defendant to serve a total
effective sentence of twenty-five years with release eligibility after service of 100% of
the sentence in the Tennessee Department of Correction. On appeal, Defendant argues
that the trial court erred in excluding his testimony that he was living in Kentucky during
the time period when the offenses occurred because Defendant failed to give the State the
notice required by Tennessee Rule of Criminal Procedure 12 for alibi evidence. After a
thorough review of the facts and applicable case law, we conclude that Defendant’s
proffered testimony was not alibi evidence, and thus, the trial court erred in excluding it
on the ground that Defendant failed to provide notice to the State. However, we also
conclude that the error was harmless, and we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

David L. Clarke, Murfreesboro, Tennessee, for the appellant, Francisco Gomez.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and Hugh T.
Ammerman, III, Assistant District Attorney General, for the appellee, State of Tennessee.
                                                 OPINION

                              I. Factual and Procedural Background

       On April 4, 2016, the Rutherford County Grand Jury indicted Defendant on
charges of rape of a child and aggravated sexual battery of a minor victim less than
thirteen years old.

                                             The State’s proof

       At trial, the victim, C.M.,1 testified that she was fourteen years old and currently
lived in Arizona. In the summer of 2014, C.M. lived in LaVergne in a neighborhood of
houses that contained three separate units. Defendant, his brother, and two other men
lived at 234 Barnett Street.

       On May 28, 2014, Defendant sent eleven-year-old C.M. a message through
Facebook Messenger. Defendant told her to take a shower and then come to the back
door of his unit. When C.M. entered the residence around 1 p.m., she observed two beds,
a T.V., and a window. Defendant was in the room when she entered. C.M. laid down on
one of the beds on her back. C.M. testified that Defendant’s penis penetrated her vagina.
Defendant also touched her breasts with his hands. Afterwards, C.M. went to her
residence, took a shower, and fell asleep. C.M. stated that she informed Defendant’s
brother about the offenses.

       C.M.’s mother took her phone while she was asleep and observed Defendant’s
message exchange with C.M.2 Her mother took her to the police station. C.M. testified
that she talked about the offenses with the police and with Samantha Richardson at the
Child Advocacy Center. C.M. was also examined at a hospital in Nashville.

      On cross-examination, C.M. stated that she had been in Defendant’s residence
previously to the offenses at issue. During cross-examination, Defendant and the State
made the following stipulations:

               On June the 3rd, 2014, [C.M.] was interviewed at the Rutherford
        County Child Advocacy Center regarding allegations that . . . Defendant
        sexually abused [C.M.]. And said interview was recorded.


        1
           It is the policy of this court to refer to minor victims of sexual crimes by their initials to protect
their identity. We intend no disrespect.
         2
           The record does not explain what prompted C.M.’s mother to take her phone.
                                                     -2-
             On June 6th, 2014, Detective Fracker recorded a conversation he had
      with [C.M.] in the course of his investigations in this case.

             On June the 11th, 2014, Detective Fracker recorded a conversation
      h[e] had with [C.M.] in the course of his investigation in this case.

             [C.M.] never mentioned that . . . Defendant touched her breasts with
      his hand in any of those three recordings.

       On redirect examination, C.M. testified that Defendant knew that she was eleven
years old at the time of the offenses because she told him her age.

        Detective Matt Fracker testified that he worked for the LaVergne Police
Department (“LPD”) in the Criminal Investigation Bureau. On May 30, 2014, the
reporting officer called Detective Fracker to investigate the allegation that Defendant
sexually abused C.M. Detective Fracker spoke with C.M.’s mother at the LPD and
contacted the Department of Children’s Services (“DCS”). When a DCS investigator
arrived at the station, Detective Fracker shared the details of the allegations with the
investigator, who set up an appointment for C.M. at Our Kids and at the Child Advocacy
Center. Later, Detective Fracker picked up a rape kit that Our Kids conducted on C.M.
from Metro General Hospital in Nashville. After C.M.’s examination at the Child
Advocacy Center, Detective Fracker interviewed C.M. to obtain details of the offenses
for the purpose of preparing an application for a search warrant to search Defendant’s
residence. C.M. described the furniture of the room where she was raped, as well as the
fact that Defendant wore “a blue and white striped collared shirt” during the offenses.

       Detective Fracker identified a photograph of Defendant that he found on
Defendant’s Facebook profile page. C.M. identified Defendant as the individual who
raped her from this photograph. When Detective Fracker executed the search warrant for
Defendant’s residence, he found a blue and white striped collared shirt in Defendant’s
bedroom.

       In 2016, Detective Fracker located Defendant in Kentucky. After Defendant was
extradited to Rutherford County, Detective Fracker applied for and received a search
warrant to obtain Defendant’s DNA. On cross-examination, Detective Fracker stated that
he did not observe Defendant at the residence when he executed the search warrant.

       Denise Alexander testified that she worked as a social worker at Our Kids Clinic,
an outpatient clinic associated with Metro General Hospital in Nashville. Ms. Alexander
explained that Our Kids provides “medical forensic exams on kids when there [are]
concerns of inappropriate touching [or] sexual abuse[.]” On May 30, 2014, Ms.
                                         -3-
Alexander met with C.M. at Metro General Hospital. C.M. told Ms. Alexander that she
had sexual contact with Defendant on May 28, 2014. A nurse practitioner, Caroline
Patterson, performed a medical examination on C.M. and collected swabs of DNA from
C.M.

       Sue Ross testified that she had worked as a pediatric nurse practitioner for Our
Kids since 1990. After the trial court declared Ms. Ross to be an expert in the field of
child forensic medical evaluations, Ms. Ross testified that she reviewed Ms. Patterson’s
report on the medical forensic examination of C.M. Ms. Patterson observed “a small anal
fissure with no significance to it” because fissures of that size normally occur with bowel
movements. However, Ms. Ross clarified that C.M.’s normal exam did not exclude the
possibility of sexual contact. On cross-examination, Ms. Ross explained that a victim
taking a shower after sexual contact would affect the likelihood that an external swab
would generate evidence.

       Special Agent Laura Boos testified that she worked as a forensic scientist for the
Tennessee Bureau of Investigation (“TBI”) in the forensic biology unit. After the trial
court declared Special Agent Boos to be an expert in the field of forensic biology, she
stated that she examined evidence submitted to the TBI in July 2014 that was collected
from C.M. and the crime scene. Special Agent Boos analyzed buccal swabs from C.M.
as a known DNA sample. She also analyzed vaginal swabs from C.M., which did not
indicate the presence of semen. She observed a few sperm cells on C.M.’s inner labial
swab. Special Agent Boos obtained a DNA profile from the inner labial swab “that was
consistent with a mixture of two people.” She stated that C.M. was a major contributor to
the DNA profile; the partial minor contributor was unknown. Special Agent Boos
examined C.M.’s outer labial swab and again found a DNA profile that was a mixture of
two contributors. On the outer labial swab, “the major contributor was from the unknown
male[,]” and C.M. was a partial minor contributor. Special Agent Boos also found a
limited amount of DNA on C.M.’s perineum swab.

        Special Agent Boos also examined a shirt found at the crime scene, as well as
some drink cans. She did not observe any semen on the shirt, so she did not examine it
further. She swabbed the mouth of the cans for DNA and found a DNA profile of an
unknown male different from the individual whose DNA was found on C.M.’s outer
labial swab.

       In June 2016, the TBI received buccal swabs from Defendant. Special Agent
Boos compared the known DNA sample from Defendant’s buccal swabs to the unknown
male DNA that she previously found on C.M.’s outer labial swabs. Defendant’s DNA
profile matched the DNA profile of the major contributor of that sample. Defendant’s
DNA was also consistent with the DNA profile found on C.M.’s perineum swab.
                                           -4-
Defendant’s DNA was not consistent with the minor contributor to the DNA profile
found on C.M.’s inner labial swabs. Defendant’s DNA was also not consistent with the
DNA profile that Special Agent Boos found on the cans found at the crime scene.

       On cross-examination, Special Agent Boos stated that, as a sample of DNA ages,
the more likely the sample has been “degraded.” She explained that a degraded sample
“might not get as much of a profile[,]” but the analysis would still be accurate. On
redirect examination, Special Agent Boos stated that a DNA profile can be obtained from
an item of evidence hours or days after the DNA was transferred to the piece of evidence.
Additionally, she explained that the victim taking a shower could reduce the likelihood of
obtaining a complete DNA profile on the area swabbed “[d]epending on where the
evidence was located and the type of shower that was taken[.]”

                                   Defendant’s proof

       Defendant testified that, on May 28, 2014, he did not live at the residence at 234
Barnett Street. He stated that he did not know C.M., did not speak to her, and did not
have sexual contact with her. He also stated that he did not know how his DNA was
transferred onto C.M.’s body.

       The jury found Defendant guilty as charged. The trial court sentenced Defendant
to twenty-five years with release eligibility after service of 100% of the sentence in the
Tennessee Department of Correction for count one, rape of a child. The trial court
ordered Defendant to serve a sentence of eight years with release eligibility after service
of 100% of the sentence in the Tennessee Department of Correction in count two,
aggravated sexual battery. The trial court ordered Defendant to serve his sentence in
count two concurrently to his sentence in count one. Defendant filed a timely motion for
new trial, which the trial court denied. Defendant now timely appeals.

                                       II. Analysis

                              Exclusion of alibi testimony

       Defendant argues that the trial court should not have excluded his proposed
testimony that he lived in Beaver Dam, Kentucky, during the time period that the
offenses occurred because it was not alibi testimony. He notes that his proposed
testimony would not have excluded the possibility of him being in LaVergne on May 28,
2014. Alternatively, Defendant asserts that, if the trial court correctly found that his
proposed testimony was an alibi, the State failed to file a request for notice of alibi
defense as required by Tennessee Rule of Criminal Procedure 12.1(a)(1). The State
contends that Defendant’s proposed testimony was properly excluded because it was
                                           -5-
irrelevant. Additionally, the State responds that if the testimony was relevant and the trial
court erred in excluding it, the error was harmless.

        We gather from the record that the State filed a motion for reciprocal discovery on
July 29, 2016, which the State asserts complied with its burden under Tennessee Rule of
Criminal Procedure Rule 12.1(a)(1). During a jury-out hearing after Detective Fracker’s
testimony, the prosecutor stated that it appeared that Defendant was “driving towards a
theory of . . . Defendant being gone from the jurisdiction or not here.” The prosecutor
stated that the State had not received a notice of alibi from Defendant. After the State
rested its case, the trial court held a jury-out hearing. Defense counsel stated that
Defendant wanted to testify that, in May 2014, he was living in Kentucky, not in the
residence at 234 Barnett Street in LaVergne. Defense counsel acknowledged that
Defendant’s proposed testimony was not “a strict alibi defense[.]” Defense counsel noted
that the State filed “the standard reciprocal discovery which requests alibi notice” but that
it did not provide Defendant with the time, date, or place that the offenses allegedly
occurred. Defense counsel filed a bill of particulars on August 25, 2017, and the State
filed its response on October 16, 2017, which alleged that the aggravated sexual battery
occurred “anywhere between May 20th, 2014 and May 29th, 2014.” Defense counsel
asserted that Defendant was not required to notify the State of his alibi under Tennessee
Rule of Criminal Procedure 12 because the State did not provide proper notice to
Defendant of when and where the offenses allegedly occurred. Defense counsel noted
that, during her trial testimony, the victim provided more details regarding the alleged
offenses—that the offenses occurred during the afternoon of May 28 at the 234 Barnett
Street residence.

       The trial court found that Defendant sought to present alibi testimony and thus
Defendant should have notified the State of his intention to present alibi evidence so that
the State could investigate the alibi evidence. The trial court found that the State had
“complied sufficiently to give notice of the general time and date that the event
occurred.” The trial court granted the State’s motion to “exclude any alibi defense as to
the fact that [Defendant] was not in the state during this time period.”

        This court has previously defined “alibi” as “[a] defense based on the physical
impossibility of a defendant’s guilt by placing the defendant in a location other than the
scene of the crime at the relevant time.” State v. Looper, 118 S.W.3d 386, 416-17 (Tenn.
Crim. App. 2003) (quoting Black’s Law Dictionary 72 (7th ed. 1999)) (concluding that
“[i]f the distance and means of travel would have permitted the defendant both to have
been at the victim’s farm to commit the crime and, later that morning, to have been in
Flowery Branch, the proof would not have established an alibi”). Thus, based on this
definition of alibi testimony, Defendant’s proffered testimony that he was living in
Kentucky during the time period of the offenses was not alibi testimony because it did
                                            -6-
not create a physical impossibility of Defendant’s guilt. The proffered testimony did not
place Defendant “in a location other than the scene of the crime at the relevant time.” See
id. Defendant’s testimony that he was “living” in Kentucky in May 2014 does not
exclude the possibility that he drove to Tennessee on May 28 and had sexual contact with
C.M. Further, Defendant acknowledges in his appellate brief that his testimony that “he
was living in Beaver Dam, Kentucky in May 2014 does not create an impossibility that
he could not have been in LaVergne, Tennessee on May 28, 2014 (the date the victim
testified the crime occurred).” Therefore, the trial court erred by excluding Defendant’s
proposed testimony on the basis that it was alibi testimony and that Defendant had not
provided the State with sufficient notice of his intent to present the alibi evidence.
Because “evidentiary rulings ordinarily do[] not rise to the level of a constitutional
violation[,]” we determine that this is a non-constitutional error that is subject to a
harmless error analysis. See State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003).

        The harmless error doctrine recognizes that the central purpose of a criminal trial
is to decide factual questions of a defendant’s guilt or innocence, and it promotes the
public’s respect for the criminal process by focusing on the underlying fairness of the
trial rather than technicalities or “the virtually inevitable presence of immaterial error.”
State v. Rodriguez, 254 S.W.3d 361, 366 (Tenn. 2008). Under this analysis, a defendant
must demonstrate “that the error ‘more probably that not affected the judgment or would
result in prejudice to the judicial process.’” Id. at 371-72 (quoting Tenn. R. App. P.
36(b)). When assessing the impact of a non-constitutional error, appellate courts must
review the record as a whole, considering properly admitted evidence of the defendant’s
guilt. Id. at 372 (citing State v. Gilliland, 22 S.W.3d 266, 274 (Tenn. 2000)). “The
greater the amount of evidence of guilt, the heavier the burden on the defendant to
demonstrate that a non-constitutional error involving a substantial right more probably
than not affected the outcome of the trial.” Id. (citing State v. Toliver, 117 S.W.3d 216,
231 (Tenn. 2003); State v. Francis, 669 S.W.2d 85, 91 (Tenn. 1984)). Whether an error
was harmless “does not turn upon the existence of sufficient evidence to affirm a
conviction or even a belief that the jury’s verdict is correct.” Id. Instead, appellate courts
must determine what impact the error may have had on the jury’s decision-making. Id.

        Here, we conclude that the trial court’s error in excluding Defendant’s testimony
was harmless. At trial, C.M. testified that on May 28, 2014, Defendant sent C.M. a
message through Facebook Messenger. Defendant told her to take a shower and then
come to the back door of his unit. While she was in Defendant’s residence, Defendant’s
penis penetrated her vagina. Defendant also touched her breasts with his hands. C.M.
identified Defendant as the individual who raped her from a photograph of Defendant
found on Defendant’s Facebook profile page. Special Agent Boos testified that
Defendant’s DNA profile matched the DNA profile of the major contributor of C.M.’s
outer labial swabs. Defendant’s DNA was also consistent with the DNA profile found on
                                            -7-
C.M.’s perineum swab. Thus, the evidence admitted at trial weighs heavily in favor of
Defendant’s guilt. Defendant has not established that the trial court’s error “‘more
probably that not affected the judgment or . . . result[ed] in prejudice to the judicial
process.’” Rodriguez, 254 S.W.3d at 371-72 (quoting Tenn. R. App. P. 36(b)).
Additionally, as the State notes, “although [Defendant] did not testify he lived in
Kentucky, during his testimony . . . [D]efendant denied living at the house where the rape
occurred at the time of the offense.” Thus, even though the trial court improperly limited
his testimony, Defendant had the opportunity to present evidence to the jury through his
own testimony that he was not living at the location of the offenses during May 2014.
Because the evidence weighed in favor of the State and because Defendant was able to
present a defense to the jury, Defendant is not entitled to relief on this ground.

                                    III. Conclusion

       After a thorough review of the facts and applicable case law, we affirm the trial
court’s judgments.


                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




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