          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                                Assigned on Briefs July 7, 2015

              STATE OF TENNESSEE v. MICHAEL RICHARDSON

                    Appeal from the Criminal Court for Shelby County
                      No. 13-02996     J. Robert Carter, Jr., Judge


                No. W2014-01053-CCA-R3-CD - Filed October 16, 2015


The Defendant, Michael Richardson, was indicted for one count of aggravated rape and
one count of aggravated robbery. See Tenn. Code Ann. § 39-13-402, -502. Following a
jury trial, the Defendant was convicted of aggravated rape. The jury was unable to reach
a verdict on the aggravated robbery charge, a mistrial was declared with respect to that
charge, and it was ultimately dismissed. The trial court sentenced the Defendant as a
Range I, standard offender to twenty-two years for the aggravated rape conviction to be
served at one hundred percent. On appeal, the Defendant contends that the trial court
erred “in ruling that if consent [was] raised as a defense,” then evidence of two other
rapes committed by the Defendant “would be relevant to rebut the issue of consent.”
Following our review, we affirm the judgments of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Jeff Woods, Memphis, Tennessee, for the appellant, Michael Richardson.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; Eric Christensen and
Katherine Berendt Ratton, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                             OPINION

                                  FACTUAL BACKGROUND1

1
  This section will discuss the factual background of the Defendant’s conviction. The factual background
regarding the Defendant’s evidentiary issue will be discussed in the Analysis section of this opinion.
       The victim, E.E.,2 testified that on August 4, 2012, she was leaving work between
8:00 and 9:00 p.m. when a friend approached her. E.E.’s friend asked her if a woman
who had passed out in his car could stay the night at E.E.’s house. E.E. rode to her house
in her friend’s car with him and the woman. As they were driving to her house, E.E.
noticed a white car following them. E.E. assumed that the driver of the white car was a
friend of the unconscious woman.

       When they arrived at E.E.’s house, her friend carried the woman inside and a man,
whom E.E. identified as the Defendant, got out of the white car and asked if she needed
“some help.” E.E. told the Defendant that she was “fine” and went into her house to
check on her friend and the woman. E.E. testified that after her friend left, she decided to
go to the store because she “wanted to have a little beer or something.” The Defendant
was still parked in front of her house and offered her a ride to the store. E.E. testified that
she accepted and got in the Defendant’s car.

        E.E. testified that she thought the Defendant would take her to a nearby store but
instead he drove her to the highway and started speeding. As the Defendant drove onto
the highway, he said, “Shut up, b---h; suck my d--k or I’ll kill you.” The Defendant took
his penis out and “grabbed [her] head with his other arm and made [her] go down on him
and suck his d--k.” E.E. testified that she complied because she was afraid; the
Defendant had threatened to kill her and was “speeding up as fast as he [could] go.” But
after a minute or two, the Defendant “got pissed off because [she] wasn’t doing it right.”

        Eventually, the Defendant got off the highway and parked the car in a secluded,
rural area. The Defendant got out of the car and came around to the passenger side. He
instructed the victim to take off her underwear, and “he opened up [her] legs.” E.E.
testified that she “started hollering an[d] screaming and begging him not to do it” as the
Defendant penetrated her vagina with his penis. E.E. also testified that she tried to fight
the Defendant off but that he was “bigger than [her], so there [was] nothing [she] could
do.”

       E.E. testified that as she fought the Defendant, he “was holding [her] down and
roughing [her] up and pushing [her].” E.E. continued to try to push the Defendant off of
her as he raped her. E.E. put her hands on the Defendant’s face “to try to pull his eyes
out.” As she did this, the Defendant bit one of her fingers “like an animal biting your
finger off.” At some point during the attack, the Defendant took twenty-seven dollars
E.E. had kept in her bra.

       After the Defendant ejaculated into E.E.’s vagina, he got back into the driver’s
seat and said, “Now, get out of my car, b---h.” The Defendant abandoned E.E. “in the

2
    It is the policy of this court to refer to victims of sexual offenses by their initials.
                                                          -2-
middle of nowhere in a [dark] wooded area.” E.E. testified that she walked for a long
time until she found some houses. She knocked on several doors, but no one answered.
E.E. kept “walking down the road” until she was discovered by a police officer. E.E.
testified that there was a “whole piece [of her finger] hanging” off from the Defendant’s
bite and that it took “about eight” stitches to reattach the tip of her finger. E.E. further
testified that she still did not “have any feeling” in that finger because the bite “damaged
the nerve.”

       On cross-examination, E.E. was asked if it struck her “as unusual” for a stranger to
offer her a ride or “to go out and have a drink.” E.E. testified that it did not. E.E. also
denied that she and the Defendant had ever “discussed going out on a date.” E.E.
admitted that she had “a couple of drinks [earlier] that day” and that she took medication
for depression, but she denied that she was under the influence of any narcotics that
night. E.E. was asked if she recalled seeing the Defendant with a weapon that night, and
she testified that she did not.

        Defense counsel then asked why E.E. complied with the Defendant’s demand for
oral sex if “he didn’t force you to do that – there was no weapon displayed,” and she was
asked what she was wearing that night. E.E. testified that she thought she was wearing a
dress that night but that she was not certain. E.E. also admitted that she had a prior
conviction for theft of property. On redirect examination, E.E. testified that she “didn’t
want to have oral sex with” the Defendant and that she only did so after he threatened to
kill her.

       Deputy Derek Jordan of the Shelby County Sheriff’s Office (SCSO) testified that
around 5:00 a.m. on August 5, 2012, he responded to “a suspicious person call.” Deputy
Jordan found E.E. walking down a dark area of Highway 70, which had little to no traffic
that time of day. Deputy Jordan recalled that E.E. appeared “to be very shook up,
frightened,” and injured. Deputy Jordan testified that E.E. “had a deep gash on . . . her
ring finger,” “her jaw was swollen,” and “[h]er lip was kind of puffy.” Deputy Jordan
recalled that E.E. was “frantic” when she spoke to him and that she “was real nervous and
scared.” E.E. told Deputy Jordan “that she had been raped.” Deputy Jordan went with
E.E. to the hospital and photographed her injuries. Deputy Jordan recalled that E.E.
needed eleven stitches to reattach the tip of her finger.

         Glenda Moses, Ph.D., testified as an expert in forensic nursing. Dr. Moses
testified that she was a nurse practitioner and that she worked for the Shelby County
Rape Crisis Center. Dr. Moses examined E.E. on the morning of August 5, 2012, at Saint
Francis Hospital – Bartlett. Dr. Moses testified that she performed oral and vaginal
“swabs” on E.E. in an effort to collect DNA evidence. Subsequent forensic testing by the
Tennessee Bureau of Investigation (TBI) revealed the presence of semen on both the oral

                                            -3-
and vaginal swabs. A DNA profile was generated from the vaginal swab and was a
match for the Defendant’s DNA.

        Dr. Moses testified that E.E. “complained of jaw pain, left neck pain, and . . . that
her lips hurt.” According to Dr. Moses, the inner part of E.E.’s left upper and lower lips
were bruised. Dr. Moses opined that the bruises were consistent with being hit in the
face. Dr. Moses also noted that E.E. had an injury to her right ring finger. Dr. Moses
testified that the victim’s vagina was “basically normal” but that it was not unusual for
female rape victims to “not necessarily have injuries” to their vaginas.

       Lieutenant Kevin Helms of the SCSO testified that he assisted in an interview with
the Defendant about this case on November 20, 2012. Portions of the Defendant’s
interview were played for the jury at trial. The Defendant repeatedly denied knowing or
having ever seen the victim. The Defendant also repeatedly denied biting the victim’s
finger or ever biting anyone like that. When confronted by Lt. Helms with the fact that
his DNA was found on the vaginal swab, the Defendant stated that he wanted to see the
DNA test results.

       Based upon the foregoing proof, the jury convicted the Defendant of aggravated
rape. It was unable to reach a verdict on the aggravated robbery charge, a mistrial was
declared with respect to that charge, and it was ultimately dismissed. In sentencing the
Defendant, the trial court gave “great weight” to the Defendant’s “significant criminal
history” for enhancement purposes and little weight to the fact that the Defendant’s wife
was present at the sentencing hearing “in support of him” in mitigation. The trial court
sentenced the Defendant as a Range I, standard offender to twenty-two years to be served
at one hundred percent. This appeal followed.

                                        ANALYSIS

        The Defendant contends that the trial court erred “in ruling that if consent [was]
raised as a defense,” then evidence of two other rapes committed by him “would be
relevant to rebut the issue of consent.” The Defendant argues that the trial court abused
its discretion because consent was not “a legitimate material issue” other than conduct
conforming with a character trait for purposes of admissibility under Tennessee Rule of
Evidence 404(b). The Defendant further argues that even if consent raised a material
issue, the trial court erred in finding that the probative value of the other rapes
outweighed the danger of unfair prejudice. The Defendant also argues that the trial
court’s ruling was not harmless error because it denied him the opportunity to present a
defense and denied him “the right to an effective cross-examination.” The State responds
that the trial court did not abuse its discretion and “followed the Rule 404(b) procedures
exactly.”

                                             -4-
       Prior to trial, the State filed a motion to introduce evidence pursuant to Tennessee
Rule of Evidence 404(b) of two other rapes committed by the Defendant in order to
establish the Defendant’s identity as the perpetrator and a common scheme or plan. The
day before the start of the Defendant’s jury trial, the trial court held a jury-out hearing on
this matter. At the hearing, the State presented the testimony of E.E., the two other
victims, and TBI forensic scientist Lawrence James.

       The first victim, D.C., testified that on July 6, 2012, she was walking down
Summer Avenue around 8:00 or 9:00 p.m. when she was approached by two men in a
blue car. D.C. testified that the men “seemed real nice” and offered her a ride home
because it was “too hot” outside for her to be walking home. D.C. accepted their offer,
but they drove past her home. D.C. recalled that one of the men was “real big,” and the
other was smaller.

       After they drove past her home, the smaller man got in the backseat and forced
D.C. to perform fellatio on him. D.C. testified that the man shoved her “head down
there” and hit her “numerous times” when she resisted. The man called her a “b---h,”
told her to do what he told her, and took pictures and video with his cell phone of D.C.
performing fellatio on him.

        D.C. recalled that the large man “drove and drove and drove” until they arrived at
a field. The men made D.C. get out of the car and perform fellatio on the large man
while the smaller man penetrated her vagina. D.C. testified that the smaller man did not
use a condom. D.C. further testified that, when she resisted, the men hit her. After the
smaller man ejaculated, they left D.C. in the field, and the smaller man said she was
“lucky [they did not] slice [her] to death and throw” her body in a ditch. D.C. recalled
that it was around 1:00 a.m. when the men left.

       The second victim, B.H.S., testified that on October 18, 2012, she was walking
down Summer Avenue when she was approached by a man in a car. B.H.S. testified that
the man offered her marijuana, but she declined and asked him to buy her a beer instead.
The man drove B.H.S. to a gas station where he purchased her a beer. The man offered
to “buy [B.H.S.] some more beer,” and they drove away from the gas station.

        B.H.S. testified that the man started speeding and demanded her to perform
fellatio on him. B.H.S. further testified that she could not remember if she performed
fellatio on the man but that she remembered “putting [her] mouth close to his private”
and she “might have put [her] mouth on it.” The man “wanted to drive around and do it.”

       The man eventually stopped in a wooded area and forced B.H.S. to allow him to
penetrate her vagina with his penis. When he finished, the man told her to get out of his
car and left her in the woods. B.H.S. testified that she did not want to have sex with the
                                             -5-
man but that he had threatened to “blow [her] brains out” and she “was fearing for [her]
life.”

       E.E.’s testimony at the 404(b) hearing was consistent with her trial testimony.
TBI Special Agent James testified that he examined the “rape kits” for all three victims.
Agent James testified that he found semen on oral and vaginal swabs taken from D.C.
and that the Defendant’s DNA was the major contributor for the semen from the vaginal
swab. Agent James also testified that the Defendant’s DNA was present on the vaginal
swabs from both B.H.S. and E.E.

       At the conclusion of the hearing, the trial court found that the proof of the rapes of
D.C. and B.H.S. was clear and convincing. The trial court then concluded that the
identity of the perpetrator was not a material issue in light of the DNA evidence. With
respect to the State’s argument that evidence of the two other rapes was material to
establish a common scheme or plan, the trial court concluded that, while the offenses
were strikingly similar, they did not evidence a distinct design or unique method.

       While not stated by the trial court, we also note that “identity is usually the only
relevant issue supporting admission of other offenses when the theory of common
scheme or plan is grounded upon a signature crime”; therefore, the fact that identity was
not a material issue in light of the DNA evidence would also prevent admission of the
other rapes for purposes of establishing a common scheme or plan. State v. Moore, 6
S.W.3d 235, 239 (Tenn. 1999).

        The trial court then stated that it was “taking [the] matter under advisement for the
time being.” The trial court cautioned that it would “find that if consent [was] raised as a
defense in this issue, that the proof of these other two crimes would be relevant to rebut
that consent.” The trial court ordered the State to make no mention of the other rapes
during its direct proof but stated that the State could “revisit this again” at the close of its
proof. The trial court stated that if it found “the tenor of cross-examination [made] those
other two crimes . . . relevant, then [it would] allow [the State] to put the proof on.” The
trial court also stated that if the Defendant raised the issue of consent during his proof, he
would allow the State to introduce evidence of the other rapes in rebuttal.

        The Defendant made no objection to the trial court’s ruling at that time. At the
start of the first day of the trial, defense counsel objected to the trial court’s ruling stating
that it took “away any kind of defense, whatsoever.” The trial court disagreed “one
hundred percent” and stated that evidence of the other rapes “would be relevant to
whether or not it was consensual in this case if [the Defendant] were to say that it [was]”
for the limited purpose of showing “absence of mistake.” The trial court then stated that
the Defendant did not “get to have three cases pending and then try them in a vacuum
because he thinks that his behavior in another case . . . is damaging.”
                                               -6-
       At the conclusion of E.E.’s testimony, the State argued that defense counsel asked
“some questions toward consent” and asked the trial court to allow it to introduce
evidence of the other rapes during its case-in-chief. The trial court stated that given the
proof at that time, it did not think it “would charge a consent defense” and denied the
State’s request. Defense counsel complained that there were “very few things [he] could
ask because it [would open] up that door.”

         At the conclusion of Dr. Moses’s testimony, defense counsel again objected to the
trial court’s Rule 404(b) ruling and stated that he would not cross-examine Dr. Moses
“because the questions that [he] would ask her regarding her findings – regarding
condition of clothing, . . . gets into consent.” The trial court responded that it was not
“telling [him]” that he could not “put on a defense of consent.” Rather, the trial court
clarified that it had ruled that a defense of consent “could make the prior acts relevant.”
Later, in discussing the Defendant’s decision not to testify at trial, defense counsel stated
that if the Defendant had testified, “it would raise the issue of consent.”

        Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that person’s actions were in conformity with the character
trait. Tenn. R. Evid. 404(b). This rule “is based on the recognition that such evidence
easily results in a jury improperly convicting a defendant for his or her bad character or
apparent propensity or disposition to commit a crime regardless of the strength of the
evidence concerning the offense on trial.” State v. Rickman, 876 S.W.2d 824, 828 (Tenn.
1994) (citing Anderson v. State, 56 S.W.2d 731 (Tenn. 1933)). The danger of a jury
improperly convicting a defendant based on his character rather than the evidence
presented at trial “particularly exists when the conduct or acts are similar to the crimes on
trial.” Id. (citing State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985)).

       Accordingly, Rule 404(b) is generally one of exclusion, but exceptions to the rule
may occur when the evidence of the otherwise inadmissible conduct is offered to prove
the motive, identity, or intent of the defendant; a common scheme or plan; opportunity; or
the absence of mistake or accident. State v. Tolliver, 117 S.W.3d 216, 230 (Tenn. 2003);
State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003). In addition to these
exceptions, evidence of other acts may be admitted to provide the jury with necessary
contextual background. State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000); see also
Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[13] (6th ed. 2011) (stating that
such evidence is admissible to tell the “complete story”).

       Rule 404(b) requires the court to hold a jury-out hearing regarding the
admissibility of specific instances of conduct “upon request.” Tenn. R. Evid. 404(b)(1).
In order to determine the admissibility of other bad acts, the trial court must consider the
following three elements: (1) whether a material issue other than conduct conforming
with a character trait exists supporting admission of the other act; (2) whether proof of
                                             -7-
the other act is clear and convincing; and (3) whether the probative value of the evidence
is not outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b)(2)-(4). If
these three thresholds are met, the evidence may be admitted. We review a trial court’s
ruling on Rule 404(b) evidence for an abuse of discretion, provided that the trial court has
substantially complied with the procedural prerequisites of the rule. State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997).

        Here, the trial court substantially complied with the procedural prerequisites of
Rule 404(b); therefore, we examine the trial court’s decision for an abuse of discretion.
An abuse of discretion occurs “when the trial court has applied an incorrect legal
standard, or has reached a decision which is illogical or unreasonable and causes an
injustice to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). At
the outset, we agree with the trial court’s conclusion that the proof of the other rapes was
clear and convincing.

       The majority of the Defendant’s argument on appeal centers on whether a defense
of consent would have created a material issue to support the admission of the other
rapes. Our supreme court has explicitly declined to recognize a general “sex crimes”
exception to Rule 404(b). Rickman, 876 S.W.2d at 828-29. Instead, “evidence of [other]
sexual misconduct is governed by the same evidentiary rules as evidence of other non-
sexual misconduct.” Id. at 829. The trial court was correct that identity was not a
material issue in light of the DNA evidence connecting the Defendant to the offense and
E.E.’s testimony at trial identifying the Defendant as her attacker.

       Here it is important to note that the Defendant does not take issue with the trial
court’s exclusion of the evidence of the other rapes. Instead, the Defendant argues this
issue as if the trial court’s statements cautioning him that a defense of consent could
“open the door” to allow for evidence regarding the other rapes was tantamount to a
ruling excluding such a defense. “[F]or an appellate court to review a record of excluded
evidence, it is fundamental that such evidence be placed in the record in some manner.”
State v. Goad, 707 S.W.2d 846, 852 (Tenn. 1986). When, as is the case here, the alleged
excluded evidence “consists of oral testimony, it is essential that a proper offer of proof
be made in order that the appellate court can determine whether or not exclusion was
reversible.” Id. at 853.

       The Defendant made no such offer of proof. We have only defense counsel’s
statement that the Defendant’s testimony “would raise the issue of consent.” Nor is the
substance of the Defendant’s proposed consent defense apparent from the record given
the victim’s testimony that the entire sexual encounter was violent and nonconsensual
and the Defendant’s repeated denials to Lt. Helms of ever having met the victim. See
Tenn. R. Evid. 103(a)(2) (stating that error “may not be predicated upon a ruling which . .

                                            -8-
. excludes evidence unless” an offer of proof was made or “the substance of the
evidence” was “apparent from the context”).

       It is impossible for us to make a determination of whether a defense of consent
would have raised a material issue because the Defendant failed to make an offer of proof
regarding the issue of consent. Likewise, we cannot evaluate whether the probative value
of the evidence of the other rapes was outweighed by the danger of unfair prejudice.
Accordingly, we conclude that the Defendant has waived this issue by failing to make a
proper offer of proof.

       Nevertheless, with respect to the Defendant’s argument that the trial court’s ruling
prevented him from presenting the defense of consent and effectively cross-examining
the State’s witnesses, we note that the trial court did not prohibit the Defendant from
doing either. In fact, the trial court specifically told defense counsel that this was not the
case. Rather, defense counsel made the strategic decision to forgo pursuing a defense of
consent and cross-examining the witnesses on that particular subject in order to avoid
“opening the door” to more damaging evidence. Such a strategic decision does not
violate a defendant’s constitutional rights to a defense or to cross-examine that State’s
witnesses. See Bailey v. Pitcher, 86 Fed. Appx. 110, 114 (6th Cir. 2004) (holding the
same with respect to a defendant’s right to cross-examine witnesses under the
Confrontation Clause). As such, this argument is without merit.

                                      CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.



                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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