        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 January 11, 2011 Session

               STATE OF TENNESSEE v. TOMMY EARL JONES

                  Appeal from the Circuit Court for Dickson County
                  No. 22CC-2099-CR-258      Robert E. Burch, Judge




                 No. M2010-00976-CCA-R3-CD - Filed April 19, 2011


Following a jury trial, the Defendant, Tommy Earl Jones, was convicted of rape, a Class B
felony, theft of property over $1,000, a Class D felony, aggravated kidnapping, a Class B
felony, and especially aggravated burglary, a Class B felony. See Tenn. Code Ann. § 39-13-
304(b), -13-503(b), -14-103, -14-105(3), -14-404(c). The trial court sentenced the Defendant
to ten years for his rape conviction, three years for his theft conviction, ten years for his
aggravated kidnapping conviction, and twelve years for his especially aggravated burglary
conviction. The trial court ordered that the Defendant’s sentences for rape and aggravated
kidnapping be served consecutively for a total effective sentence of twenty years. In this
direct appeal, the Defendant presents the following issues for our review: (1) The trial court
erred when it excluded the Defendant from jury selection, trial, and the return of the verdict
in the absence of any waiver; (2) The State presented insufficient evidence to convict the
Defendant of especially aggravated burglary; (3) The trial court erred when it allowed a
forensic expert to testify about opinions based on possibilities; and (4) The trial court erred
in imposing consecutive sentences. After our review, we conclude that the Defendant’s
fundamental right to be present during his trial was violated. As a result, we must reverse
the Defendant’s convictions and remand for a new trial.

    Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                    Remanded

D AVID H. W ELLES, J., delivered the opinion of the Court, in which JERRY L. S MITH, J., joined.
R OBERT W. W EDEMEYER, J., filed a dissenting opinion.

James Baum, Burns, Tennessee, for the appellant, Tommy Earl Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Dan M. Alsobrooks, District Attorney General; and Billy Miller, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                Factual Background
       During the July 2009 term, a Dickson County grand jury returned a presentment
alleging that the Defendant committed the offenses of rape, theft of property over $1,000,
aggravated kidnapping, evading arrest, simple possession of marijuana, and especially
aggravated burglary. The Defendant’s trial was conducted on December 8, 2009.

        The victim, J.C., testified1 that, on April 16, 2009, after she got back home from
picking her three-year-old daughter up from school, she was washing dishes in her kitchen
when she felt something being sprayed in her face. She turned around and saw that a man
wearing a mask was standing behind her and spraying bug spray into her face. The victim
testified that she started to defend herself and was able to remove the mask from her
assailant’s face. When she removed the mask, she realized that the man attacking her was
the Defendant, her next-door neighbor. The victim testified that, at that time, she did not
know the Defendant’s name, nor had she ever invited him into her home.

       The victim recalled that the Defendant grabbed her arm and tried to push her into the
bedroom, however, she said that she fought back and was able to prevent him from doing so.
The Defendant and the victim were fighting on the floor in the hallway when the victim saw
her three-year-old daughter. The victim tried to protect her daughter by covering her with
the victim’s right leg. The victim described that her left leg was pushed up against her chest
while the Defendant was pushing her. The victim grabbed a portable heater and tried to
defend herself, but the Defendant grabbed it from her and hit her in the face with it. He then
wrapped the cable from the heater around her neck and tried to choke her with it. However,
she testified that she was able to slip one of her hands in between the cord and her neck and
eventually remove the cord. The victim was able to get up and walk toward the kitchen, but
the Defendant attempted to strangle her with his hands.

       While the Defendant had his hands on her neck, the victim was able to ask him what
he needed and he said, “Money, money.” At that point, she said that she gave him the ring
she was wearing and told him that she had money in her purse. The Defendant let go of her,
and the victim was able to get her purse, take out the money, and give it to the Defendant.



       1
           The victim’s testimony was in Spanish and was translated by an interpreter.

                                                   -2-
She recalled that the Defendant then asked her “something about the car keys,” but she did
not remember exactly what he said.

       The victim recalled that, after she gave him the money, the Defendant put his hand on
her breast area, tore her blouse off, and broke her bra. He threw her face down onto the
ground and removed her pants. The victim testified that the Defendant got on top of her and
penetrated her vagina. She recalled that she saw the Defendant ejaculate outside of her body
after he had penetrated her and that she witnessed him cleaning semen off of his penis with
the cup of her bra.

        The victim said that, after he raped her, the Defendant tried to tie her arms and legs,
but she resisted. She said that the Defendant then threatened to beat her with her wooden key
rack if she did not allow him to tie her arms and legs. The victim recalled that the Defendant
ultimately tied her feet together with a cable and her hands together with his shoe laces.
After she was tied up, the Defendant pushed a sofa on top of her. The victim recalled that
she was eventually able to free one foot and push the sofa off of her. She then ran into the
kitchen and used a knife to free her hands. By this point, she recalled, the Defendant had left
her house.

        The victim said that, after she freed herself, she looked for her phone but could not
find it. She got dressed and went outside with her daughter to look for help. Two of her
neighbors were outside and they called the police upon her request. After the police arrived,
she was taken to the hospital, where doctors collected vaginal samples for a rape kit. The
victim stated that she spoke with police officers at the hospital and informed them that the
man who attacked her was her next-door neighbor but that she did not know his name. The
police officers showed her six photographs, and she identified her rapist as one of the men
depicted in the photos.

        The victim also testified that, when she went outside to look for help, she noticed that
her red four-door Oldsmobile was missing. The victim explained that, although the car was
titled in her boyfriend’s name, she was the one who used the vehicle. She said that she did
not give anyone permission to take the car. She also testified that, after she returned home
from the hospital, she discovered that her lock-box, which was kept in her closet, had been
broken into and a bag containing her jewelry was missing.

        On cross-examination, the victim testified that the Defendant was dressed in black
clothing when he attacked her. She said that he did not wear gloves. She also stated that,
when she spoke to police on the phone after the attack, she only remembered telling them
that a black man had come into her house; she did not remember whether she told them that
it was her neighbor who raped her.

                                              -3-
       The victim’s boyfriend testified that he lives with the victim and that they have two
children together. He stated that he owns a 2000 Oldsmobile Alero, which he estimated to
be worth approximately $5,000, and that he did not give anyone, other than the victim,
consent to use or take the vehicle on April 16, 2009. He also testified that he had never let
the Defendant use his vehicle.

       Detective B.J. Gafford, with the Dickson County Sheriff’s Office, testified that he
responded to the victim’s residence after she reported her attack. He recalled that he saw that
half of a bra and an electrical cord were wrapped around one of her feet. He said that he
collected those items for evidence and began photographing her home. He collected the
other half of the bra, which he said appeared to have some sort of stain on it, from inside her
home. He said he also collected a can of ant spray. Detective Gafford photographed the
victim’s door and testified that it had “the marks and appearance of forced entry being
made.”

       Detective Gafford testified that he compiled a photo lineup and that, in his presence,
the victim identified the Defendant as her attacker from the photographs. He said that he
obtained DNA samples from the victim, her boyfriend, and the Defendant. On cross-
examination, Detective Gaffords admitted that he never found any fingerprints of the
Defendant in the victim’s home, nor did he find any inside the victim’s Oldsmobile Alero.

        Lieutenant Andy Davis, employed by the Dickson County Sheriff’s Office, testified
that, at approximately 11:15 p.m. on April 17, 2009, he was called out to the Defendant’s
trailer, which was located next to the victim’s. He said that he and other officers had
information that the Defendant had returned home and they were there to serve arrest
warrants on him. Lieutenant Davis recalled that they knocked on the door and announced
that it was the sheriff’s office, however, the Defendant did not answer. He said that the
officers then made a forced entry. Lieutenant Davis testified that the officers did not
immediately find the Defendant, but eventually located him hiding inside an air vent and took
him into custody. Lieutenant Davis then proceeded to a nearby storage facility, where the
victim’s missing vehicle was located. He said that he dusted the car for fingerprints and
lifted two prints from the driver’s door.

        Special Agent Mike Turbeville, who was certified an expert by the trial court, testified
that he works as a forensic scientist for the Tennessee Bureau of Investigation. He testified
that he analyzed the victim’s rape kit and discovered that the victim’s vaginal swabs
contained sperm cells. He testified that further DNA analysis revealed that the sperm cells




                                              -4-
were from the victim’s boyfriend.2 Special Agent Turbeville also tested the portion of the
victim’s bra that was recovered from her home and testified that the DNA profile of semen
found on it was a match to the Defendant. He stated that the probability of someone else
having the same DNA profile as the Defendant exceeded the world’s population. Special
Agent Turbeville also analyzed the Defendant’s dark blue tee-shirt and found sperm cells and
non-sperm cells on the bottom of it. He testified that the DNA profile of the sperm cells
matched the victim’s boyfriend and the DNA profile of the non-sperm cells matched the
victim.

        Special Agent Susanne Lafferty, a forensic scientist with the Tennessee Bureau of
Investigation, was certified as an expert by the trial court. She testified that she examined
a can of ant spray and the fingerprints lifted from the victim’s vehicle. On the can of ant
spray, she found an identifiable latent fingerprint and an identifiable palm print. She
testified that she compared the Defendant’s fingerprints to the one identified on the can, but
that the Defendant’s fingerprints did not match. Special Agent Lafferty also said that she did
not receive a reference copy of the Defendant’s palm print and, therefore, could not
determine whether or not his palm print matched the one she recovered from the can.
Regarding the prints recovered from the driver’s door of the victim’s car, Special Agent
Lafferty testified that they matched the Defendant’s fingerprints from his left middle and left
ring fingers.

       At the close of the State’s proof and upon the Defendant’s motion for judgment of
acquittal, the trial court dismissed count four, evading arrest, and count five, simple
possession of marijuana. The Defendant presented no proof.

       The jury found the Defendant guilty of rape, theft of property over $1,000, aggravated
kidnapping, and especially aggravated burglary. The trial court sentenced the Defendant to
ten years for his rape conviction, three years for his theft conviction, ten years for his
aggravated kidnapping conviction, and twelve years for his especially aggravated burglary
conviction. The trial court ordered that the Defendant’s sentences for rape and aggravated
kidnapping be served consecutively for a total effective sentence of twenty years. The
Defendant now appeals.

                                          Analysis
       The Defendant presents the following issues for our review: (1) The trial court erred
when it excluded the Defendant from jury selection, trial, and the return of the verdict in the
absence of any waiver; (2) The State presented insufficient evidence to convict the Defendant


        2
          The victim testified that she had engaged in sexual relations with her boyfriend the night before
she was raped.

                                                   -5-
of especially aggravated burglary; (3) The trial court erred when it allowed a forensic expert
to testify about opinions based on possibilities; and (4) The trial court erred in imposing
consecutive sentences.

I. Defendant’s Exclusion from his Trial
       At the beginning of the Defendant’s trial, before voir dire had begun, the Defendant’s
attorney informed the trial court that the Defendant raised an issue that the court should hear
without potential jurors in the courtroom. The trial court asked the potential jurors to leave
the courtroom and the following transpired:

               [Defense Counsel]: . . . Earlier I was talking to Mr. Jones and he
       informed me that he was unhappy with my representation. That he believes
       that we have irreconcilable differences and he would like to move the [c]ourt
       to get a different attorney.

              [Trial Court]: Are you appointed?

              [Defense Counsel]: I was appointed, Your Honor.

             [Trial Court]: Mr. Jones, if you hire an attorney you pick them. If I
       appoint them I pick them. Have a seat, we’re starting the trial.

              Bring the jury in.

       (Whereupon the potential jury returned to the courtroom.)

              [The Defendant]: Excuse me, sir?

              [Trial Court]: What?

              [The Defendant]: I would—I would like another—

              [Trial Court]: Stand up when you talk to me.

              [The Defendant]: I would like another attorney.

              [Trial Court]: I denied that.

              [The Defendant]: I’m not going—



                                              -6-
       [Trial Court]: Sit down and be quiet.

       [The Defendant]: I don’t want to pay for it.

       [Trial Court]: Sit down.

       [Court Officer]: He denied it.

       [Trial Court]: Be quiet.

       [Court Officer]: He denied it, sit down.

      [The Defendant]: I will sit down. I don’t want to pay, sir. I would like
another—I know my rights. I do not—

     [Trial Court]: Ladies and gentlemen, will you go out in the jury
room—or outside, please?

(Whereupon the potential jury exited the courtroom.)

        [The Defendant]: I will get a contempt. I do not want my case lawyer.
I want another attorney. I know my rights. My friend is a judge, okay. I have
a [sic] appointed—that’s court appointed judge. I know my rights.

       [Trial Court]: Stand up when you talk to me.

       [The Defendant]: I will.

       [Trial Court]: You be quiet and I’m going to talk to you.

       [The Defendant]: Thank you very much sir.

       [Trial Court]: Now, I have denied your motion, that means no, it ain’t
going to happen. If you keep talking, I’m going to duck tape your mouth shut
and shackle you to that chair. Now, do you understand that?

      [The Defendant]: Sir, the Supreme Court will hear it. I will have a
problem with that. I do not want this man as my counsel.

       [Trial Court]: I don’t care if you want him or not.

                                     -7-
       [The Defendant]: And all this will be documented to the Supreme
Court. You can duck tape me. They can chain me, sir.

       [Trial Court]: You can document it all you want to.

       [The Defendant]: I do not want this man representing me.

       [Trial Court]: Well, I appointed him.

       [The Defendant]: And I will not stand court here, because I do not want
him as my attorney. I know—I’m not scared, sir. I know my rights. I do not
want Mr. Baum as my attorney.

       [Trial Court]: Okay.

       [The Defendant]: You can duck tape me, you can chain me. I’m not
being heard. God is my witness.

       [Trial Court]: Have a seat and be quiet.

       [The Defendant]: So when you’re ready to take me back to jail—

       [Trial Court]: Be quiet. You’ve had your say now. You speak when
you’re spoken to.

       All right. Bring the jury in.

       [The Defendant]: Sir, can I stand up and talk about my attorney?

      [Trial Court]: Be quiet. Now, I’m going to bring the jury in here and
I’m going to get real upset if you start showing out in front of the jury.

       [The Defendant]: I’m not showing out, sir. I do not want Mr. Baum as
my attorney.

       [Trial Court]: Well, I’ve already resolved that. He’s going to be your
attorney. We’re moving ahead.

       [The Defendant]: I know my rights, sir.



                                       -8-
              [Trial Court]: I’m glad you do.

              [The Defendant]: And this will be going on all day. They can shoot
       me. They can beat me. You can do whatever you ordinarily do. Mr. Baum is
       not representing me today as my attorney.

              [Trial Court]: Well, I say he is.

               [The Defendant]: Not me, sir. You can get the duck tape ready. They
       can do whatever they want to do. Mr. Baum is not representing me. This case
       is put together. I didn’t do nothing to nobody. That man, sitting right there,
       Detective Gafford had put this whole case together. I get put on a rape
       scene—

              [Prosecutor]: Your Honor, I would like to make a motion that he be
       excluded. He’s got a right to be here, and if he’s going to be this disruptive all
       the way through this trial, the law in Tennessee is we can exclude him from the
       courtroom and try it without him.

               [Trial Court]: Take him and put him in the holding cell. We’re going
       to start the trial. We’ll tell you how it comes out.

       At that point, the Defendant was removed from the courtroom and remained absent
during the entire jury voir dire. After a jury had been selected, the trial court brought the
Defendant back into the courtroom and the following transpired:

              [Trial Court]: Mr. Jones, I have brought you back in the courtroom.
       The jury has been selected. This trial is going ahead. You’re [sic] only choice
       is to whether you want to join us or not.

             Now, you know, if you’ll behave and sit there quietly, and observe the
       proceedings, and so forth, you know, talk with your lawyer and so forth, you
       are welcome to stay. But if you choose not to do that, then I’m going to
       exclude you from the courtroom and we’re going to go ahead with it.

              Now, which do you want to do?

              [The Defendant]: Well, this started without me, Your Honor, and I
       would rather take my chance in the Supreme Court, and let you go [sic] all go
       on with your proceeding and what you decided to do.

                                              -9-
      [Trial Court]: I’m sorry, you said that you’re going to take your
chances?

      [The Defendant]: Whatever you do here today, you all got your own
mind. Because to me, this ain’t no justice, I don’t know what this is.

        [Trial Court]: Well, you understand that if you’re not here the jury is
liable to take an adverse inference from that?

        [The Defendant]: If—really, what the jury is supposed to do about me
not being here is to throw it out, because I’m supposed to pick 12 of those
jurors, sir. That is the defense. He’s supposed to pick six and I’m supposed
to pick six by law.

       [Trial Court]: Well, that’s—

        [The Defendant]: Like I said, sir, I’m—I—I have a high school
diploma. I’m a certified truck driver and I’m a certified forklift operator. I’m
not going to go—I’m—I’m—here, I have a hole in my body. I’ve been over
there in the jail for seven months. No help. I’m hurting right now. I have to
stay up until three or four o’clock in the morning, because I can’t sleep
because I’m in pain. Nobody do nothing.

      So what you do here today, sir, like I explained to my lawyer, if they
give me a hundred years out here today, that’s what they will do.

        But the Supreme Court will gladly hear it. It’s a man in my eyesight
that’s a bunch of racists. And it’s put together and nobody took no initiative
to look into this to see what happened.

       I came from my home from Nashville, Tennessee. I go in my house.
These people that are supposed to be the victims they see me go in my house.
They ain’t calling nobody, sir. Somebody across the street calls, seeing me
going in my house. These people know it.

       I look at all this stuff they got, all the county reports. My name ain’t no
where in this. I’m not on the news. I’m not no where. My name ain’t no
where on the 16th, but somebody—somebody—they want my kids. They put
me at the crime of the scene [sic].



                                      -10-
             Somebody gave final temporary custody.           I didn’t gave nobody
       permission to oversee my kids.

              I don’t know if it was put together. Nobody concerned. Take the blame
       out on him. Do what you want to do. Put it together, go ahead, but I’m not
       going to be part of it. I wasn’t a part of this from the jail.

              [Trial Court]: All right. I understand that you do not choose to stay for
       your trial?

              [The Defendant]: I didn’t even pick the trial, sir. I don’t even—I don’t
       even have counsel. And if Mr. Baum, if he could, just get up and walk out and
       he say he don’t want to represent me. I would appreciate if you would do that
       and we wouldn’t have to be going through this right here. I can have another
       counsel.

              This man is—this appointed counsel saw me Tuesday for 10 minutes.
       I didn’t even know I was having a trial today.

              [Trial Court]: All right.

              [The Defendant]: No hospital reports said anything.

              [Trial Court]: All right. Take the Defendant out.

        At that time, the Defendant was removed from the courtroom, the jury was brought
in, the indictment was read, opening arguments were conducted, and the State presented its
proof. After the State had rested its case, the Defendant was brought back into the courtroom
for a Momon hearing. See Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999). The trial
court then asked the Defendant if he wanted to stay and watch the rest of the trial, but the
Defendant declined to do so. The Defendant was not present in the courtroom when the jury
returned its verdict.

       The Defendant contends that the trial court committed reversible error when it
excluded him from the courtroom without following the procedures detailed in Rule 43 of
the Tennessee Rules of Criminal Procedure. We must agree.

       “A defendant has a fundamental right under both the federal and state constitutions
to be present during his trial.” State v. Mosley, 200 S.W.3d 624, 631 (Tenn. Crim. App.
2005); see also State v. Muse, 967 S.W.2d 764, 766 (Tenn. 1998) (discussing the various

                                             -11-
sources that this right is derived from). “Presence at ‘trial’ means that the defendant must
be ‘present in court from the beginning of the impaneling of the jury until the reception of
the verdict and the discharge of the jury.’” Muse, 967 S.W.2d at 766 (quoting Logan v.
State, 173 S.W. 443, 444 (Tenn. 1915)). In Muse, our supreme court held that defendants
have “a constitutional right, as well as a Rule 43(a) right, to be present at voir dire.” Id. at
767. The court further explained that “[t]here is a constitutional right because the presence
of the defendant during jury selection had a reasonably substantial relation to his opportunity
to defend against the charge.” Id.

       In addition to the rights guaranteed by the federal and state constitutions, Rule
43(a)(2) of the Tennessee Rules of Criminal Procedure states that “the defendant shall be
present at . . . every stage of the trial including the impaneling of the jury and the return of
the verdict.” Rule 43 also provides as follows:

                (b) Continued Presence Not Required. The further progress of the
       trial, to and including the return of the verdict and imposition of sentence, shall
       not be prevented and the defendant shall be considered to have waived the
       right to be present whenever a defendant, initially present:

              (1) Voluntary Absence. Voluntarily is absent after the trial has
       commenced, whether or not he or she has been informed by the court of the
       obligation to remain during the trial; or

              (2) Disruptive Conduct. After being warned by the court that
       disruptive conduct will result in removal from the courtroom, persists in
       conduct justifying exclusion from the courtroom.

              (c) Procedure After Voluntary Absence or Removal.

              (1) Representation by Counsel. If a trial proceeds in the voluntary
       absence of the defendant or after the defendant’s removal from the courtroom,
       he or she must be represented in court by counsel.

              (2) Disruptive Conduct. If the defendant is removed from the
       courtroom for disruptive behavior under Rule 43(b)(2):

             (A) Access to Counsel After Removal. The defendant shall be given
       reasonable opportunity to communicate with counsel during the trial; and




                                              -12-
              (B) Periodic Review of Removal. The court shall determine at
       reasonable intervals whether the defendant indicates a willingness to avoid
       creating a disturbance if allowed to return to the courtroom. The court shall
       permit the defendant to return when the defendant so signifies and the court
       reasonably believes the defendant.

        Finally, a defendant’s right to be present during jury selection is so basic to a fair trial
that infraction of that right will not be treated as harmless. Muse, 967 S.W.2d at 768. We
note that this Court has repeatedly held that automatic reversal is required when a
defendant’s constitutional and statutory rights to be present at his trial have been violated.
See State v. Far, 51 S.W.3d 222, 227-28 (Tenn. Crim. App. 2001); State v. Ballard, 21
S.W.3d 258, 262 (Tenn. Crim. App. 2000).

      Turning to the instant case, we first address the State’s argument that the Defendant
waived this issue by failing to raise a contemporaneous objection when the State made a
motion to exclude the Defendant. We do not agree.

       In Muse, our supreme court explained as follows:

               There is a long-standing presumption against waiver of fundamental
       constitutional rights. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The
       relinquishment of a fundamental constitutional right may only be waived
       personally by the defendant and will not be presumed from a silent record.
       House v. State, 911 S.W.2d 705, 714 n.20 (Tenn. 1995). In order to waive the
       right to be present for voir dire, a defendant must have knowledge of the right
       and, before voir dire is conducted, must personally waive the right either in
       writing or on-the-record in open court.

967 S.W.2d at 767-68.

        The Defendant continued to protest being represented by his counsel when the State
made a motion for him to be removed and the trial court granted the motion. After
examining the record, we conclude that the Defendant did not personally waive his right to
be present for voir dire. Therefore, we reject the State’s argument that the Defendant waived
this issue when he failed to object to his removal.

        In order to determine whether the trial court’s actions complied with Rule 43, we must
determine whether the Defendant was absent voluntarily or whether his disruptive conduct
caused his absence. After reviewing the dialogue that occurred before the Defendant was
initially removed, we find that it is clear the Defendant was removed for his disruptive

                                               -13-
conduct. In fact, the State even described the Defendant’s behavior as “disruptive” when
requesting that he be removed from the courtroom. Cf. State v. Charles D. Mullins, No.
01C01-9709-CC-00388, 1999 WL 228819, at *14 (Tenn. Crim. App., Nashville, Apr. 21,
1999) (affirming the decision of the trial court that the defendant, who was absent when the
jury returned its verdict, was voluntarily absent because he was hospitalized due to an
overdose of prescription drugs); State v. Tidmore, 604 S.W.2d 879, 880-81 (Tenn. Crim.
App. 1980) (affirming the trial court’s determination that the defendant was voluntary absent
when, because of threats made against his life, he failed to appear after the weekend recess).

        Thus, per Rule 43(b)(2) of the Tennessee Rules of Criminal Procedure, before
removing the Defendant for disruptive conduct, the trial court was required to warn him that,
if he continued to engage in such conduct, he could be excluded from the courtroom. The
State argues that the trial court gave the required warning when it told the Defendant, “If you
keep talking, I’m going to duck tape your mouth shut and shackle you to that chair.”
However, such a threat falls short of the required warning prescribed by Rule 43(b)(2)
because the Defendant was not warned that he could be excluded from his own trial.
Therefore, because the record reveals that the trial court removed the Defendant from his trial
without first warning him that he could be excluded if he persisted in disruptive behavior,
we find that reversible error was committed and remand for a new trial.

       Although our resolution of the foregoing issue is dispositive, in order to facilitate
possible further appellate review, we will now address the remaining issues that the
Defendant presents. See State v. Pendergrass, 13 S.W.3d 389, 395 (Tenn. Crim. App. 1999).

II. Sufficiency of the Evidence
       The Defendant argues that the evidence presented at trial is insufficient to support his
conviction for especially aggravated burglary beyond a reasonable doubt. Tennessee Rule
of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether
by the trial court or jury shall be set aside if the evidence is insufficient to support the
findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal
defendant who challenges the sufficiency of the evidence on appeal bears the burden of
demonstrating why the evidence is insufficient to support the verdict, because a verdict of
guilt destroys the presumption of innocence and imposes a presumption of guilt. See State
v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58
(Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court must reject
a convicted criminal defendant’s challenge to the sufficiency of the evidence if, after
considering the evidence in a light most favorable to the prosecution, we determine that any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599
(Tenn. 1999).

                                             -14-
        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

         “A person commits burglary who, without the effective consent of the property owner
. . . [e]nters a building and commits or attempts to commit a felony, theft or assault.” See
Tenn. Code Ann. § 39-14-402(a)(3). Aggravated burglary is defined as “burglary of a
habitation.” See Tenn. Code Ann. § 39-14-403(a). Tennessee Code Annotated section 39-
14-404(a) states, “Especially aggravated burglary is: (1) Burglary of a habitation or building
other than a habitation; and (2) Where the victim suffers serious bodily injury.” “‘Serious
bodily injury’ means bodily injury that involves: (A) A substantial risk of death; (B)
Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious
disfigurement; (E) Protracted loss or substantial impairment of a function of a bodily
member, organ or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(34).

       The Defendant argues that the injuries the victim sustained do not constitute serious
bodily injury. The State argues that the victim suffered “extreme physical pain” and that the
evidence was sufficient to support the Defendant’s conviction. After reviewing the evidence
presented regarding the extent of the victim’s injuries, we must agree with the Defendant that
the evidence was insufficient to support his conviction for especially aggravated burglary.

       In State v. Sims, the victim received a broken nose, a laceration across the bridge of
her nose, a bruised cheekbone from a blow to her face, and two black eyes. 909 S.W.2d 46,
48 (Tenn. Crim. App. 1995). This Court noted that “[t]he victim also testified that she
missed five weeks of work and experienced extreme physical pain over her whole face, but
especially to her nose.” Id. When determining whether the victim’s injuries constituted
serious bodily injury, this Court stated as follows:

              The ejusdem generis canon of statutory construction is helpful when
       construing the enumerated definition of “serious bodily injury.” According to
       the Sixth Edition of Black’s Law Dictionary, ejusdem generis means when
       words follow an enumeration of classes of things the words should be
       construed to apply to things of the same general class as those enumerated.

                                              -15-
       Therefore, the enumerated portions of the definition of serious bodily injury
       should be read as coming from the same class of injuries. We do not believe
       that the pain commonly associated with a broken nose is extreme enough to be
       in the same class as an injury which involves a substantial risk of death,
       protracted unconsciousness, protracted or permanent disfigurement or the loss
       or impairment of the use of a bodily member, organ or mental faculty. We
       admit to the difficulty of quantifying or measuring pain.

              ....

              We conclude that there is insufficient evidence to support serious bodily
       injury and therefore an especially aggravated robbery conviction. We
       conclude that the conviction must be modified to aggravated robbery.

Id. at 49-50; see also Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn. 1994) (“[A]nother aid to
determining legislative intent is the rule ‘ejusdem generis,’ meaning where general words
follow special words which limit the scope of the statute, general words will be construed
as applying to things of the same kind or class as those indicated by the preceding special
words.”). In State v. Barnes, this Court found that an assault victim who received “several
knots on the back of the head and bruises on the back caused by the ‘stick,’ a burn on the
victim’s nose from a light bulb, and a single bite on the arm” did not suffer serious bodily
injury as defined by the statute. 954 S.W.2d 760, 766 (Tenn. Crim. App. 1997); see also
State v. Arnett, 49 S.W.3d 250, 263-64 (Tenn. 2001) (finding that a rape victim who
sustained bumps, bruises, and cuts to her legs did not suffer serious bodily injury).

       In the instant case, despite the prosecutor’s many inquiries into the victim’s level of
pain after the attack, the victim only testified that she was in “a lot of pain.” She further
described her injuries as follows:

       [M]y eyes were red from what spray had been put on my face and I had some
       places on my face . . . where I had been hit. There was also places on my arm
       where I had been hit, and I had marks on my wrist where I . . . had been tied,
       and then a few scratches on—on my chest when he stuck his hand there, and
       my stomach was—was hurting.

No other proof was presented regarding the extent of the victim’s injuries. We conclude that
the State presented insufficient evidence to sustain the Defendant’s conviction for especially
aggravated burglary because the victim’s testimony regarding her injuries does not indicate
that she suffered “extreme physical pain” as envisioned by the statutory definition of “serious
bodily injury.” See Tenn. Code Ann. § 39-11-106(a)(34). Were we not already reversing the

                                             -16-
Defendant’s convictions, we would reverse the Defendant’s especially aggravated burglary
conviction, modify the judgment to reflect a conviction for aggravated burglary and remand
to the trial court for resentencing.

III. Expert Testimony
       The Defendant contends that the trial court improperly allowed Special Agent
Turbeville to speculate: (1) How bodily fluids from the victim and her boyfriend got on the
Defendant’s shirt and (2) Whether it was possible to have vaginal penetration with a penis
but detect no DNA from the penis on the victim’s vaginal swabs.

       During Special Agent Turbeville’s testimony, the following occurred:

               [Prosecutor]: Would you have an explanation on how—an explanation
       as to how [the victim’s boyfriend and the victim’s] body fluids got on Tommy
       Earl Jones’ shirt?

              [Defense Counsel]: I want to object, Your Honor. I think that calls for
       speculation.

              [Trial Court]: Well, scientist [sic] can make speculations.

              Ladies and gentlemen, you will be told about how to receive expert
       testimony. An expert can give an opinion. It’s up to you to give the weight to
       that opinion.

              [Witness]: My best guess would be that somehow that shirt came in
       contact with her vaginal area and a wet semen stain got transferred to that
       shirt.

              [Prosecutor]: Would that be, in your opinion, Agent Turbeville, the
       most likely scenario?

              [Witness]: Yes, sir.

              [Prosecutor]: Okay. And that would be contact—that shirt would had
       contact with her vaginal [sic], which we know contained [the victim’s
       boyfriend’s] semen and obviously her own fluids?

              [Witness]: Yes, it had to have been wet to transfer like that.



                                            -17-
       Later in Special Agent Turbeville’s testimony, the Defendant again objected to a
question posed by the prosecutor:

              [Prosecutor]: Special Agent Turbeville, is it possible to have vaginal
       penetration of a penis and there not be D.N.A. material on the vaginal swab?

              [Defense Counsel]: I would object, Your Honor. That calls for
       speculation as a possibility. Anything is possible.

             [Trial Court]: Well, that would be a scientific possibility. That’s
       something an expert can give, overruled.

              [Witness]: Could you repeat the question?

              [Prosecutor]: Is it—is it possible for—for there to be vaginal
       penetration with a penis and there be no transfer of D.N.A. material from the
       penis?

              ....

              [Witness]: Well, that’s possible that maybe a trace amount of D.N.A.
       was left and—and there was such a small amount that I was not able to pick
       it up.

        The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. Rule 702 states, “If scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Rule 703 further provides as
follows:

               The facts or data in the particular case upon which an expert bases an
       opinion or inference may be those perceived by or made known to the expert
       at or before the hearing. If of a type reasonably relied upon by experts in the
       particular field in forming opinions or inferences upon the subject, the facts or
       data need not be admissible in evidence. Facts or data that are otherwise
       inadmissible shall not be disclosed to the jury by the proponent of the opinion
       or inference unless the court determines that their probative value in assisting
       the jury to evaluate the expert’s opinion substantially outweighs their



                                              -18-
       prejudicial effect. T he court shall disallow testimony in the form of an opinion
       or inference if the underlying facts or data indicate lack of trustworthiness.

Tenn. R. Evid. 703.

       This Court has stated that “[t]he allowance of expert testimony, the qualifications of
expert witnesses, and the relevancy and competency of expert testimony are matters which
rest within the sound discretion of the trial court.” State v. Davis, 872 S.W.2d 950, 954
(Tenn. Crim. App. 1993). We will not reverse the trial court’s decision “absent a clear
showing of abuse of discretion.” Id.; see State v. Reid, 91 S.W.3d 247, 302 (Tenn. 2002).
This Court will not find an abuse of discretion unless “it appears that a trial court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that caused
an injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

        Upon reviewing the record, we cannot conclude that the trial court abused its
discretion. Special Agent Turbeville’s testimony regarding the presence of DNA from the
victim and her boyfriend on the Defendant’s shirt was an inference based on his knowledge
of the facts of the case. The victim testified that she had sexual relations with her boyfriend
the night before she was raped. Special Agent Turbeville testified that, other than the
victim’s DNA, he only found DNA from the victim’s boyfriend on the swabs contained in
the rape kit. Thus, Special Agent Turbeville used his knowledge of forensic science to assist
the trier of fact in understanding how the victim’s boyfriend’s DNA could have been
transferred to the Defendant’s shirt. Similarly, Special Agent Turbeville’s testimony that it
was possible trace amounts of DNA were not detected in his testing assisted the trier of fact
in understanding the evidence. The Defendant is not entitled to relief on this issue.

IV. Consecutive Sentencing
      The trial court ordered that the Defendant’s sentences for rape and aggravated
kidnapping be served consecutively for a total effective sentence of twenty years. The
Defendant contends that the trial court erred in imposing consecutive sentences.

       On appeal, the party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).
When a defendant challenges the length, range, or manner of service of a sentence, it is the
duty of this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also


                                              -19-
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

        Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds any one of the following criteria
by a preponderance of the evidence:

             (1) The defendant is a professional criminal who has knowingly
       devoted the defendant’s life to criminal acts as a major source of livelihood;

              (2) The defendant is an offender whose record of criminal activity is
       extensive;

              (3) The defendant is a dangerous mentally abnormal person so declared
       by a competent psychiatrist who concludes as a result of an investigation prior
       to sentencing that the defendant’s criminal conduct has been characterized by
       a pattern of repetitive or compulsive behavior with heedless indifference to
       consequences;

                (4) The defendant is a dangerous offender whose behavior indicates
       little or no regard for human life, and no hesitation about committing a crime
       in which the risk to human life is high;

              (5) The defendant is convicted of two (2) or more statutory offenses
       involving sexual abuse of a minor with consideration of the aggravating
       circumstances arising from the relationship between the defendant and victim


                                               -20-
       or victims, the time span of defendant’s undetected sexual activity, the nature
       and scope of the sexual acts and the extent of the residual, physical and mental
       damage to the victim or victims;

              (6) The defendant is sentenced for an offense committed while on
       probation; or

              (7) The defendant is sentenced for criminal contempt.

These criteria are stated in the alternative; therefore, only one need exist to support the
appropriateness of consecutive sentences. The trial court found that criteria (4) applied to
the Defendant.

       Regarding the imposition of consecutive sentences because the defendant is a
dangerous offender, our supreme court has held, “The proof must also establish that the terms
imposed are reasonably related to the severity of the offenses committed and are necessary
in order to protect the public from further criminal acts by the offender.” State v. Wilkerson,
905 S.W.2d 933, 938 (Tenn. 1995).

        When the trial court imposed consecutive sentences on the Defendant, it only stated
as follows:

       The [c]ourt orders Count I and Count III, the rape and the aggravated
       kidnapping, to be served consecutively to each other, the other two to be
       served concurrent with Count I.

       The [c]ourt find this Defendant is a dangerous offender, who has no hesitation
       about committing a crime in which the risk to human life is high, and finds that
       consecutive sentencing is appropriate.

Thus, the trial court failed to find that consecutive sentences were “reasonably related to the
severity of the offenses committed and are necessary in order to protect the public from
further criminal acts by the offender,” as required by Wilkerson. See id. Were we not
reversing the Defendant’s convictions, we would remand for resentencing pursuant to the
principles recognized in Wilkerson.

                                        Conclusion
       Based on the foregoing authorities and reasoning, we conclude that the Defendant’s
fundamental right to be present during his trial was violated and, therefore, we must reverse
his convictions and remand for a new trial. Regarding Count VI, as we have found that the

                                             -21-
State presented insufficient evidence to convict the Defendant of especially aggravated
burglary, the State cannot retry the Defendant for especially aggravated burglary but can
proceed on the lesser charge of aggravated burglary.




                                                 _________________________________
                                                 DAVID H. WELLES, JUDGE




                                          -22-
