        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               December 9, 2015 Session

             STATE OF TENNESSEE v. SHAUN ROYAL HILL

               Direct Appeal from the Circuit Court for Tipton County
                       No. 7697         Joe H. Walker, Judge



                No. W2015-00710-CCA-R3-CD            -   Filed June 9, 2016


A Tipton County jury convicted the Defendant, Shaun Royal Hill, of rape, and the trial
court sentenced him to fifteen years in confinement. On appeal, the Defendant contends
that: (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred
when it admitted the Defendant‟s phone records into evidence; (3) the Defendant was
prejudiced by the jury venire and the jury selection process; (4) the trial court erred when
it failed to instruct the jury regarding the collection and preservation of evidence; (5) the
trial court erred when it allowed the State to impeach a witness through another witness‟s
testimony; (6) the trial court erred when it restricted the Defendant‟s cross-examination
of the victim; (7) the State made improper comments throughout trial; and (8) the trial
court erred when it sentenced him. After a thorough review of the record and applicable
authorities, we affirm the trial court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ALAN E. GLENN, J., joined.

Michael E. Scholl, Memphis, Tennessee (on appeal); and Charles Brasfield, Covington,
Tennessee (at trial) for the appellant, Shaun Royal Hill.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Mike Dunavant, District Attorney General; Jason R. Poyner and James Walter Freeland,
Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts
                                         A. Trial
        This case arises from a sexual assault of the victim, A.B.,1 that occurred on April
7, 2013, for which a Tipton County grand jury indicted the Defendant for rape. At the
Defendant‟s trial, the following evidence was presented: the victim testified that, at the
time of this offense in April 2013, she was twenty years old and living with her aunt and
sometimes her grandmother, saying that she went “back and forth” between the two
residences. The victim stated that she visited the home of her cousin, Tasha Grant, on
April 5, 2013, and that the Defendant, whom she had never met, was there. The victim
did not engage in much conversation with the Defendant, except to ask him for a cigarette
lighter. The victim left Ms. Grant‟s house at 8:00 or 9:00 p.m. with her aunt and the two
went to her aunt‟s house. The victim and her aunt spent the night there and the next day
the victim‟s aunt left town for a trip to Arkansas.

        The victim described her aunt‟s house as having two bedrooms with five or six
doors inside the home. She stated that everyone entered and exited the house through
the back door. The victim recalled that her “Uncle Larry” visited her at the house on the
night of April 7 and went out the back door when he left. The victim stated that she
locked the back door after he left, and then she went to sleep on the couch. She recalled
that she was in a “downwards mood,” like a depression, that evening and did not feel
well, in part because she was menstruating.

       The victim stated that she was awakened in the middle of the night by the
Defendant, who smelled like liquor and who seemed intoxicated. She stated that she
could see the Defendant‟s face in the light coming through the window. The victim
denied that she had called him to come over, explaining that the home did not have a
landline and that she did not have a cell phone. When the Defendant awoke the victim,
she said, “What are you doing here?” The Defendant replied that the door was “wide
open.”

       The victim testified that the Defendant held her down on the couch and took her
pants off and then put his penis inside her vagina. The Defendant held her down on her
shoulders and by holding her leg in the air. The victim told him “it hurt,” and she
kicked him in the face. The victim testified that she had recently lost her virginity,
which she opined explained why the Defendant‟s penetration of her was so painful. The
Defendant “got off of [her],” laughed, kissed the victim on her face, and walked out of
the house, leaving through the back door. The victim testified that the Defendant did
not ejaculate or use a condom. The victim stated that she did not immediately tell
anyone about what had happened because she did not know what to do.


1
 In keeping with the policy of this Court, we will refer to the victim by her initials only to protect her
privacy.


                                                        2
       The next day, the victim saw the Defendant again, and he said “he wanted some
more.” The victim moved away from him and told her younger cousin that the
Defendant had raped her. Later that day, she also told her aunt and grandmother. The
following morning, the victim went to the police station with her grandmother and spoke
to two officers. She later went to the health department to be checked for sexually
transmitted diseases.

        On cross-examination, the victim testified that she took “sleeping medicine” the
night of the rape, which she took for anxiety and depression. The victim stated that she
moved to Tennessee with her grandmother and reiterated that she lived with her aunt.
She stated that she also lived with her grandmother and went back and forth between the
two homes every other day. The victim agreed that she had equal number of belongings
at her aunt‟s and grandmother‟s homes. She denied that her uncle, Larry Craig, ever
slept at either home but stated that he did come to check on her often.

        The victim denied having met the Defendant prior to meeting him at Ms. Grant‟s
house, and she reiterated that her only interaction with him was to ask him for a lighter
for her cigarette. She denied flirting with him or exchanging phone numbers with him.
Recalling the events surrounding the rape, the victim acknowledged that she testified at
the preliminary hearing that her uncle had locked the door after he left, as opposed to her
trial testimony that she locked the door. She testified that the Defendant had forcibly
entered her aunt‟s house and there were signs of forced entry on the back door, which she
discovered the next morning. The victim also stated that she did not testify at the
preliminary hearing about her menstrual cycle. She stated that there was blood in her
pants after the rape, but she never gave the pants to law enforcement because she was
never asked for them. The victim testified that, the day after the rape, her uncle came
over to visit her, and they watched television together. She did not tell him about the
rape.

       Larry Craig, the victim‟s great-uncle, testified that on the weekend of April 6-7,
2013, the victim‟s aunt, also his niece, went to Arkansas, and so he went to check on the
victim at her aunt‟s house. He stated that he used the back door to enter and exit the
house. He recalled that the door was “flimsy.” Mr. Craig testified that he knew the
Defendant through the Defendant‟s family. Mr. Craig stated that, after he checked on
the victim the night of April 6, he returned the next day, April 7, to check on her again.
He recalled that, when he left the victim on April 6, she was lying on the couch where she
normally slept. Mr. Craig stated that the victim did not have a cell phone and that there
was no landline in the house where she slept.

       Mr. Craig testified that on April 7, when he was visiting the victim at her aunt‟s
house, the Defendant and his cousin stopped by. Mr. Craig recalled that the victim left

                                                3
the house when the two men arrived and did not return until after Mr. Craig left. He
testified that he had no knowledge of any type of relationship between the victim and the
Defendant, and he stated that the victim had not lived in Tennessee for very long. Mr.
Craig stated that he did not find out about the rape until the following week.

       The victim‟s grandmother testified that she lived with her husband and that the
victim stayed with them sometimes. She recalled that the victim told her about being
raped by the Defendant. The victim was crying and hurt. At the time, the victim had
been living in Tennessee a few weeks and did not know the Defendant. The victim‟s
grandmother took the victim to the police station and then the health department where
she was examined. The victim‟s grandmother was not permitted to be present for the
examination because the victim was not a minor.

        The victim‟s aunt testified that the victim lived with her. The victim‟s aunt
testified that she went out of town the weekend of April 6-7, 2013, and returned Sunday
night, April 7. The victim told her aunt about the rape after she returned home. The
victim was “very upset” and crying when she told her aunt what had happened. The
victim‟s aunt stated that she was not surprised by what the victim told her had happened.
The victim‟s aunt testified that the victim did not have a cell phone and that there was no
landline at the aunt‟s house.

       On cross-examination, the victim‟s aunt testified that the Defendant‟s cousin was
married to her cousin. She stated that the Defendant did not “hang out” at her house but
that she would see him out around town. She testified that she had never seen the victim
and the Defendant together, other than the night they were all present at Ms. Grant‟s
house. After the victim told her about the rape, the aunt checked the back door or her
house and described it as “chipped.”

       Andrew Hefner, a police officer, testified that he interviewed the victim on
Monday, April 8. The victim and her grandmother came to the police department
together to file a complaint. Sergeant Hefner described the victim as very upset, and he
could tell she had been crying. He said she cried a couple of times while talking to him
and seemed embarrassed to talk about what had happened. The victim told him that on
the night of April 6 or the early morning of April 7, the Defendant had raped her. After
talking with the victim, Sergeant Hefner assigned the case to Detective Willis.

        Detective Alan Willis testified that he met with the victim on Monday, April 8
about her rape complaint. He also met with the Defendant separately. Detective Willis
testified that he visited both the victim‟s aunt‟s house and her grandmother‟s house.
Detective Willis also went to the Defendant‟s brother‟s house and requested that the
Defendant be interviewed at the police department. The Defendant came to the police

                                                4
department where he was given an Admonition and Waiver of Rights document, which
the Defendant signed to indicate that he understood his rights. During the interview, the
Defendant told Detective Willis that the victim called him on the night of the rape around
2:00 a.m. He went over to the victim‟s aunt‟s house around 4:00 a.m. and had sex with
the victim. The Defendant stated that the victim let him inside the house. He also
stated that their sexual encounter was consensual.

        Detective Willis testified that he subpoenaed the Defendant‟s cell phone records to
determine if the victim had called him the night of the rape. The phone records were
admitted into evidence over the Defendant‟s objection that the documents were not
self-authenticating. Detective Willis testified that the phone records did not show an
incoming call on the morning of April 7, 2013, at 2:00 a.m. Detective Willis stated that
the victim did not have a cell phone and there was no landline at her aunt‟s house. He
testified that the victim‟s aunt had a cell phone, but that she was out of town at the time
of the rape and her cell phone was with her.

       Based on his investigation, Detective Willis arrested the Defendant. Detective
Willis testified that he was not made aware that the victim had pants with blood on them
from the rape. He agreed that the victim was taken to a rape crisis center, but his
recollection was that she had already taken a shower when she was examined.

        On cross-examination, Detective Willis testified that he only spoke to the victim at
the police department and not the victim‟s grandmother. He stated that a female officer
was present when he spoke to the victim. Detective Willis recalled that the victim told
him it was her second time having sexual intercourse and that she did not like intercourse
the first time. He “remembered something” about the victim menstruating at the time of
the rape.

       Detective Willis testified that he never told the victim to get a physical
examination because the Defendant admitted to having intercourse with her and because
the victim stated that there had not been a struggle between her and the Defendant.
Detective Willis testified that he did not ask the victim to bring any of her clothes in as
evidence because all they would have shown was that she had intercourse with the
Defendant, a fact to which the Defendant admitted.

        Detective Willis testified that the Defendant willingly came to the police
department and spoke with him. The Defendant admitted to having intercourse with the
victim but said it was consensual. Detective Willis agreed that he subpoenaed the
Defendant‟s phone records to see if the victim had called him the night of the rape to
invite him over; no calls were made to the Defendant‟s cell phone during the time period
of the rape.

                                                5
       On behalf of the Defendant, Rollo Jones, Sr., the Defendant‟s first cousin, testified
that he was with the Defendant and the Defendant‟s cousin on the night of the rape and
that Mr. Jones dropped the Defendant off at the victim‟s aunt‟s house at around 3:30 or
4:00 a.m. He watched the Defendant go inside the house through the side door but
never saw the Defendant force the door open. Mr. Jones drove away after the
Defendant went inside the house.

      On cross-examination, Mr. Jones agreed that he had called the Defendant at
around 12:30 a.m. on the night of the rape.

        Quinton Hill, another first cousin of the Defendant, testified that he used to live
with a man named Jeremy Grant, who was the victim‟s cousin. He stated that he knew
the victim from the occasions when she visited the Grants from out of town. Mr. Hill
testified that on Saturday, April 6, he, the Defendant, and Mr. Jones went to a club and
drove home early Sunday morning. Mr. Hill stated that he was asleep in the car. The
men dropped the Defendant off at the victim‟s aunt‟s house, and then Mr. Hill dropped
off Mr. Jones before he went home. Mr. Hill called the Defendant the next morning and
picked the Defendant up at the store before driving to the victim‟s aunt‟s house. Mr.
Hill stated that it was his idea to go there at “random.” When they arrived, Larry Craig
was at the house, as well as the victim. The victim did not seem upset but was quiet,
which Mr. Hill described as her usual demeanor. Mr. Hill could not recall whether the
victim spoke to the Defendant.

       On cross-examination, Mr. Hill agreed that he had pleaded guilty to delivery of
Schedule II cocaine on the day of the Defendant‟s trial and that he received a sentence of
eight years. Mr. Hill denied that he was a cocaine dealer but stated that he was “in the
wrong place at the wrong time.”

       Based upon this evidence, the jury convicted the Defendant of rape.

                                      B. Sentencing

       At the sentencing hearing, the State offered the presentence report and certified
copies of the Defendant‟s convictions. Those convictions showed that the Defendant
had previously been convicted of three felony drug charges, sufficient to classify him as a
multiple offender. April McCommon testified that she had prepared the presentence
report and that the Defendant had not filled out the questionnaire she provided to him.

       Based upon this evidence, the trial court found that the Defendant would be
sentenced as a multiple offender, stating that the Defendant had multiple convictions

                                                6
beyond those necessary to establish the appropriate range, including multiple
misdemeanor convictions in Tipton and Haywood counties. The trial court found no
mitigating factors and sentenced the Defendant to fifteen years to be served at one
hundred percent. It is from this judgment that the Defendant now appeals.

                                        II. Analysis

        On appeal, the Defendant contends that: (1) the evidence was insufficient to
sustain his conviction; (2) the trial court erred when it admitted the Defendant‟s phone
records into evidence; (3) the Defendant was prejudiced by the jury venire and the jury
selection process; (4) the trial court erred when it failed to instruct the jury regarding the
collection and preservation of evidence; (5) the trial court erred when it allowed the State
to impeach a witness through another witness‟s testimony; (6) the trial court erred when it
restricted the Defendant‟s cross-examination of the victim; (7) the State made improper
comments throughout trial; and (8) the trial court erred when it sentenced the Defendant.

                                      A.   Sufficiency

      The Defendant contends that the evidence was insufficient to support his
conviction because there was no physical evidence indicating that the sexual encounter
was not consensual and because the victim‟s testimony is “riddled with conflicting facts.”
The State responds that the victim‟s testimony alone is sufficient evidence for a jury to
convict the Defendant of rape. It further contends that physical evidence is not a
prerequisite to conviction. We agree with the State.

       When an accused challenges the sufficiency of the evidence, this Court‟s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn.
R. App. P. 13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v.
Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999). In the absence of direct evidence, a criminal offense may be established
exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn.
1973). The jury decides the weight to be given to circumstantial evidence, and “[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the
jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted). “The
standard of review [for sufficiency of the evidence] is the same whether the conviction is


                                                  7
based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the
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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the trial
judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978);
State v. Grace, 493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee Supreme Court
stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there
       human atmosphere and the totality of the evidence cannot be reproduced
       with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record, as well as all reasonable
inferences which may be drawn from the evidence. Goodwin, 143 S .W.3d at 775
(citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt
against a defendant removes the presumption of innocence and raises a presumption of
guilt, the convicted criminal defendant bears the burden of showing that the evidence was
legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000).

       As applicable to this case, rape is defined as the “unlawful sexual penetration of a
victim by the defendant or of the defendant by a victim accompanied by any of the
following circumstances: force or coercion is used to accomplish the act[.]” T.C.A. §
39-13-503(a)(1) (2014).        Sexual penetration is defined as “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part
of a person‟s body or of any object into the genital or anal opening of the victim‟s, the


                                                8
defendant‟s, or any other person‟s body, but emission of semen is not required[.]”
T.C.A. § 39-13-501(7).

       The evidence in this case, viewed in the light most favorable to the State, showed
the victim went to sleep at her aunt‟s house, after locking the back door after her uncle‟s
visit. She was awakened in the middle of the night by the Defendant, who was inside
the house. The Defendant forcibly held her down on the sofa where she lay, pinning her
shoulders down by holding her leg up. He pulled the victim‟s pants down and then he
penetrated her vagina with his penis. The victim told him, “No” and used her leg to
kick the Defendant in the face. The Defendant then kissed her and left the house. We
conclude that this evidence is sufficient to prove that the Defendant unlawfully sexually
penetrated the victim by force. As for the lack of physical evidence, no such evidence is
required to corroborate the victim‟s testimony that she was raped. See State v. Bobby
Barrett, No. W1999-02002-CCA-R3-CD, 2000 WL 1840073, at *8 (Tenn. Crim. App., at
Jackson, Dec. 12, 2000), perm. app. denied (Tenn. May 21, 2001). The Defendant is
not entitled to relief on this issue.

                                    B.   Phone Records

       The Defendant next contends that the trial court erred when it admitted his cell
phone records into evidence because they were unauthenticated and were not admitted
pursuant to statutory procedure found at Tennessee Code Annotated section 24-7-116.
The State agrees that the phone records were hearsay evidence that should not have been
admitted without authentication; however, it contends that the admittance of the records
and the correlating testimony did not substantially impact the outcome of the trial and
thus constitutes harmless error.

       Tennessee Code Annotated section 24-7-116 (2014) governs the admissibility of
telephone records and the process by which they should be admitted into the record.
The required procedure dictates that a “custodian or other authorized agent of the
company shall . . . file with the court clerk a true and correct copy of all records . . . [and]
be accompanied by an affidavit of the custodian stating in substance:

       (A) That the affiant is duly authorized custodian of the records and has
       authority to certify the records;

       (B) That the copy is a true copy of all the records described in the
       subpoena; and

       (C) That the records were prepared by the personnel of the company acting
       under the control of the company, in the ordinary course of business.

                                                   9
T.C.A. § 24-7-116(a)(1)(A)-(C). The Defendant contends, and the State concedes, that
this procedure was not followed when the Defendant‟s cell phone records were
introduced into evidence through Detective Willis‟s testimony. Based on our review of
the testimony, we agree with the Defendant‟s contention that the phone records were
admitted in error.

        However, the State argues that this error was harmless, stating that “evidentiary
rulings . . . are subject to a non-constitutional harmless error analysis,” and that this error
did not affect the outcome of the trial. We agree with the State. Evidentiary errors
such as this one are analyzed under the non-constitutional framework. State v. John
Daniel Simmons, No. M2014-02086-CCA-R3-CD, 2015 WL 7354311, at *10 (Tenn.
Crim. App., at Nashville, Nov. 20, 2015), no perm. app. filed (citing State v. Rodriguez,
254 S.W.3d 361, 371 (Tenn. 2008)). Pursuant to the non-constitutional harmless error
analysis, “the defendant bears the burden of demonstrating that the error more probably
than not affected the judgment or would result in prejudice to the judicial process.” Id.
at 8 (internal quotation marks omitted). Furthermore, “the stronger the evidence of the
defendant‟s guilt, the heavier the burden is on the defendant to prove that a
non-constitutional error was not harmless.” Id. The question of harmless error,
however, does not rest upon “whether there was sufficient evidence to support a
defendant‟s conviction,” rather, “what impact the error may reasonably be taken to have
had on the jury‟s decision-making.” Id.

        We conclude that the admission of the cell phone records was harmless error.
The records were introduced to refute the assertion that the victim called the Defendant in
the middle of the night to invite him over to her aunt‟s house. The victim testified that
she did not call the Defendant, that she did not have her own cell phone, and that there
was not a landline at her aunt‟s house. Multiple other witnesses confirmed that the
victim‟s aunt‟s house had no landline. The victim‟s aunt confirmed this and also stated
that she had taken her own cell phone with her on her trip. The victim‟s uncle further
corroborated the victim‟s testimony that the victim had no access to a phone on the night
of the incident and thus, could not have called the Defendant‟s cell phone. The admitted
phone records merely added credence to that which three witnesses testified to: that the
victim did not and could not have called the Defendant and invited him over because she
did not have a phone. In light of the consistent testimony from the three witnesses, we
do not believe that the phone records changed the jury‟s verdict or affected the outcome
of the trial. The error was harmless, and the Defendant is not entitled to relief on this
issue.

                              C. Jury Venire and Selection


                                                 10
       The Defendant next contends that he was convicted by a jury that was “not a
group of his peers,” contending that there were only two African-American males in the
jury pool. He also contends that, because the Tipton County jury pool had been
subjected to the voir dire process in multiple recent jury trials, the jury pool for the
Defendant‟s trial was “frustrated by the voir dire process” and unresponsive to many of
the questions asked during voir dire. Because the potential jurors were “exhausted from
the process” from “multiple trials,” “there [were] no longer interested in the process,”
depriving him of the right to a fair and impartial jury. The State responds that the record
contains no evidence to support the Defendant‟s assertion and, therefore, this Court
cannot “speculate on whether the representation of African-Americans on the jury venire
was fair and reasonable in relation to their numbers in the community.” The State
further responds that the Defendant‟s claim that the jury was frustrated and exhausted is
not supported by any evidence and that he has failed to demonstrate any prejudice.

        The rules “prescribing jury selection procedures are intended to protect the
integrity of the jury system by providing a uniform and ordered method that ensures the
accused a fair and impartial jury chosen from a fair cross-section of the community.”
State v. Coleman, 865 S.W.2d 455, 458 (Tenn. 1993). When a defendant alleges error
in the jury selection process, “[i]t is the burden of the defendant to prove prejudice or
purposeful discrimination in the selection of a jury. Prejudice will not be presumed.”
Id.

       We first note that the Defendant did not object to the makeup of the jury or the
number of jurors who had previously served on juries until after the State had rested its
case, which the trial court noted was “late” in the process. The trial court responded that
the jury venire included “a number of African-Americans” and noted that the Defendant
excused one or more of them from the pool himself. The trial court also stated that it
was aware that “a number” of the jurors had served on multiple trials in Tipton County
and asked defense counsel for law to support his claim that this prejudiced the
Defendant‟s trial; defense counsel was unable to provide any support for this argument.
In his brief the Defendant does not provide us with any evidence of how the makeup of
the jury, either based on their race or the number of juries upon which they had recently
served, deprived him of a fair and impartial jury. He merely contends that there was
inadequate representation of the races, without providing any statistics related to the
population of Tipton County and the percentage of different races within the county, and
that the jury was not “fresh and ready to listen to a case,” without providing a single
instance when a juror indicated they were not willing to sit and listen as an impartial fact
finder. We will not presume prejudice or discrimination based on his claims alone.
See State v. Shaw, 37 S.W.3d 900, 914 (Tenn. 2001) (the jury is presumed to follow
instructions). The Defendant is not entitled to relief on this issue.


                                                11
                                  D.   Jury Instructions

        The Defendant next contends that the trial court erred when it failed to instruct the
jury on the State‟s duty to preserve evidence, found at Tennessee Pattern Jury Instruction
42.23, which he cites as the duty to preserve any “evidence that might be expected to play
a significant role in the suspect‟s defense.” The Defendant argues that Detective Willis
testified he made no effort to gather evidence of the rape, and thus, the Defendant had a
right to this jury instruction. The State responds that the instruction was not warranted
because the State did not have a duty to collect evidence from the victim or from the
crime scene.

       A trial court has the duty to fully instruct the jury on the general principles of law
relevant to the issues raised by the evidence. See State v. Burns, 6 S.W.3d 453, 464
(Tenn. 1999); State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); State v. Elder, 982
S.W.2d 871, 876 (Tenn. Crim. App. 1998). Nothing short of a “„clear and distinct
exposition of the law‟” satisfies a defendant‟s constitutional right to trial by jury. State
v. Phipps, 883 S.W.2d 138, 150 (Tenn. Crim. App. 1994) (quoting State v. McAfee, 737
S.W.2d 304 (Tenn. Crim. App. 1987)). In other words, the trial court must instruct the
jury on those principles closely and openly connected with the facts before the court,
which are necessary for the jury‟s understanding of the case. Elder, 982 S.W.2d at 876.
Because questions regarding the propriety of jury instructions are mixed questions of law
and fact, our standard of review here is de novo, with no presumption of correctness.
State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State v. Smiley, 38 S.W.3d 521, 524
(Tenn. 2001).

       The Defendant contends that the trial court erred when it failed to instruct the jury
with regards to the State‟s duty to preserve evidence, found at Tennessee Pattern Jury
Instruction 42.23, which states:

              The State has a duty to gather, preserve, and produce at trial
       evidence which may possess exculpatory value. Such evidence must be of
       such a nature that the defendant would be unable to obtain comparable
       evidence through reasonably available means. The State has no duty to
       gather or indefinitely preserve evidence considered by a qualified person to
       have no exculpatory value, so that an as yet unknown defendant may later
       examine the evidence.

              If, after considering all of the proof, you find that the State failed to
       gather or preserve evidence, the contents or qualities of which are an issue
       and the production of which would more probably than not be of benefit to


                                                 12
       the defendant, you may infer that the absent evidence would be favorable to
       the defendant.


T.P.I.-Criminal 42.23. The State‟s duty to preserve evidence, and the exculpatory value
of evidence, is difficult to define, as our Supreme Court noted in State v. Ferguson:

       the duty must be limited to evidence that might be expected to play a
       significant role in the suspect‟s defense. To meet this standard of
       constitutional materiality, evidence must both possess an exculpatory value
       that was apparent before the evidence was destroyed, and be of such a
       nature that the defendant would be unable to obtain comparable evidence
       by other reasonably available means.

2 S.W.3d 912, 917 (Tenn. 1999) (citing California v. Trombetta, 467 U.S. 479, 488-89
(1984)).

        The Defendant specifically attacks the State‟s failure to uphold its duty when it did
not procure the pants the victim was wearing at the time of the rape and when it did not
direct the victim to be subjected to a rape kit examination. We agree with the State that
it did not have a duty to collect or preserve either of these items of evidence. Detective
Willis testified that the Defendant agreed that he had intercourse with the victim, albeit
consensual. As such, the detective did not ask the victim for her pants because she did
not contend to have struggled with the Defendant during their encounter. Therefore, in
our view, the victim‟s pants had no exculpatory value because they did not provide
evidence of consensual sex, only that the victim and the Defendant had engaged in a
sexual act. The same conclusion follows from the assertion that a rape kit examination
should have been conducted; it had no exculpatory value because it would have merely
revealed a sexual encounter between the victim and the Defendant and would not have
made it more or less likely that the encounter was consensual. As such, the State was
under no duty to gather these items of evidence and thus, the trial court did not err when
it declined to instruct the jury accordingly. The Defendant is not entitled to relief on
this issue.

                              E. Impeachment of Mr. Hill


      The Defendant next asserts that the trial court erred when it allowed the State to
impeach a witness, Quinton Hill, through its questioning of another witness, Rollo Jones.
The Defendant argues that Mr. Hill was properly impeached with his own conviction
during his testimony, but that the State should not have been allowed to ask Mr. Jones

                                                13
about Mr. Hill‟s criminal history. The State responds that the Defendant has waived
review of this issue and that plain error review is not warranted. The State further
contends that the Defendant objected to the question directed at Mr. Jones regarding Mr.
Hill‟s criminal history, and that Mr. Jones did not answer the question, and thus the State
did not actually impeach Mr. Jones.

       Rule 609 of the Tennessee Rules of Evidence permits the State to attack the
credibility of a criminal defendant by presenting evidence of prior convictions. See
Tenn. R. Evid. 609. This Court reviews the trial court‟s ruling on the admissibility of
prior convictions for impeachment purposes under an abuse of discretion standard. See
State v. Mixon, 983 S.W.2d 661, 675 (Tenn. 1999); State v. Blanton, 926 S.W.2d 953,
960 (Tenn. Crim. App. 1996). A trial court abuses its discretion only when it “„applie[s]
an incorrect legal standard, or reache[s] a decision which is against logic or reasoning
that cause[s] an injustice to the party complaining.‟” State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)). If a trial
court fails to comply with the procedural requirements of Rule 609, then the trial court‟s
decision is not entitled to deference. State v. Lankford, 298 S.W.3d 176, 182 (Tenn.
Crim. App. 2008).

       The Defendant states that his cousin, Quinton Hill, who testified on behalf of the
Defendant, was properly impeached with his own prior felony criminal history.
However, the Defendant contends that Mr. Jones, another cousin who testified on behalf
of the Defendant, was improperly impeached when he was asked about Mr. Hill‟s prior
criminal history. Although the Defendant does not point us to the exact testimony
during which the alleged erroneous impeachment occurred, we presume it to be when the
State asked Mr. Jones whether he knew that Mr. Hill was a drug dealer. Defense
counsel objected immediately, before Mr. Jones answered the question, and the trial court
sustained the objection. The witness never responded to the question and the State
proceeded with a different line of questioning.

         We agree with the State that because the Defendant failed to raise this evidentiary
issue in his motion for new trial, he risks waiver of appellate review. See Tenn. R. App.
P. 3(e) (“no issue presented for review shall be predicated upon error in the admission or
exclusion of evidence . . . unless the same was specifically stated in a motion for a new
trial[.]”) We also agree that this complaint lacks merit because no actual impeachment
of the witness occurred. The trial court sustained the Defendant‟s objection and Mr.
Jones never answered the question. Furthermore, the impeachment evidence had
already been presented to the jury through impeachment of Mr. Hill. The Defendant is
not entitled to relief on this issue.

                         F.   Cross-Examination of the Victim

                                                14
       The Defendant next contends that the trial court improperly limited the
Defendant‟s ability to cross-examine the victim about the aftermath of the rape. The
State responds that the trial court properly sustained the State‟s objection to a question
directed to the victim because it was not relevant.

      During cross-examination of the victim, the following exchange occurred:

      Victim: Yeah, [the health clinic] gave me a pregnancy test too. Gave me a
      pregnancy test and disease test. They didn‟t give me [a rape kit]. It had
      nothing to do with my vagina.

      Defense counsel: Okay.     Were you nervous you might be pregnant?

      Victim: No, sir.

      Defense: So why did you have a pregnancy test?


       The State objected to defense counsel‟s question, and the trial court sustained the
objection. Defense counsel then asked the victim again why she took a pregnancy test if
she was not nervous that she was pregnant. The State‟s objection to the question was
again sustained.

        In Tennessee, the determination of whether proffered evidence is relevant in
accordance with Tennessee Rule of Evidence 402 is left to the sound discretion of the
trial judge, as is the determination of whether the probative value of evidence is
substantially outweighed by the possibility of prejudice pursuant to Tennessee Rule of
Evidence 403. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999) (citing State
v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995); State v. Burlison, 868 S.W.2d
713, 720-21 (Tenn. Crim. App. 1993)). In making these decisions, the trial court must
consider the questions of fact that the jury will have to consider in determining the
accused‟s guilt as well as other evidence that has been introduced during the course of the
trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). We will only
disturb an evidentiary ruling on appeal when it appears that the trial court arbitrarily
exercised its discretion. State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).

       Initial questions of admissibility of evidence are governed by Tennessee Rules of
Evidence 401 and 403. These rules require that the trial court must first determine
whether the proffered evidence is relevant. Pursuant to Rule 401, evidence is deemed
relevant if it has “any tendency to make the existence of any fact that is of consequence

                                               15
to the determination of the action more probable or less probable than it would be without
the evidence.” See Forbes, 918 S.W.2d at 449 (quoting Tenn. R. Evid. 401). In other
words, “evidence is relevant if it helps the trier of fact resolve an issue of fact.” Neil P.
Cohen, et al., Tennessee Law of Evidence § 4.01[4], at 4-8 (4th ed. 2000). After the
trial court finds that the proffered evidence is relevant, it then weighs the probative value
of that evidence against the risk that the evidence will unfairly prejudice the trial. State
v. James, 81 S.W.3d 751, 757 (Tenn. 2002). If the court finds that the probative value is
substantially outweighed by its prejudicial effect, the evidence may be excluded. Tenn.
R. Evid. 403. “„[E]xcluding relevant evidence under [Tenn. R. Evid. 403] is an
extraordinary remedy that should be used sparingly and persons seeking to exclude
otherwise admissible and relevant evidence have a significant burden of persuasion.‟”
James, 81 S.W.3d at 757-58 (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 227
(Tenn. Ct. App. 1999) (citations omitted)).

        The Defendant complains that the trial court limited defense counsel‟s ability to
explore the possibility that risk of pregnancy was the victim‟s motive to lie and say that
she had been raped. We conclude that this evidence was not relevant in this case and
that its introduction would not have made it more or less likely that her sexual contact
with the Defendant was not consensual. Thus, the trial court properly limited defense
counsel during cross-examination on this issue. The Defendant is not entitled to relief.

                   G. State’s Improper Comments and Argument

       The Defendant contends that throughout the trial the State asked “inappropriate
questions” designed to elicit inappropriate responses from witnesses, and that the State
made improper comments throughout trial and during closing arguments. He contends
that the State “misstat[ed] evidence,” disobeyed the trial court‟s orders, “inject[ed]”
irrelevant issues into the trial, and expressed an opinion about the Defendant‟s guilt. He
contends that these instances constituted a violation of his due process rights. The State
responds that the Defendant has waived review of this issue because he failed to
contemporaneously object at trial and furthermore that the Defendant has failed to
demonstrate prosecutorial misconduct related to these instances.

       When reviewing allegations of prosecutorial misconduct, “[t]he general test to be
applied is whether the improper conduct could have affected the verdict to the prejudice
of the defendant.” Harrington v. State, 385 S.W.2d 758, 759 (1965); see also State v.
Richardson, 995 S.W.2d 119, 127 (Tenn. Crim. App. 1998). The factors relevant to the
court‟s determination are: (1) the conduct complained of viewed in light of the facts and
circumstances of the case; (2) the curative measures undertaken by the court and the
prosecution; (3) the intent of the prosecutor in making the improper arguments; (4) the
cumulative effect of the improper conduct and any other errors in the record; and (5) the

                                                16
relative strength and weakness of the case. State v. Nesbit, 978 S.W.2d 872, 894 (Tenn.
1998). Additionally, there are five recognized areas of prosecutorial misconduct during
closing argument: (1) intentionally misstating the evidence or misleading of the jury on
the inferences it can draw; (2) expressing personal beliefs or opinions; (3) inflaming or
attempting to inflame the passions or prejudices of the jury; (4) adding outside issues to
the guilt or innocence issue; and (5) arguing or referring to outside facts. State v. Goltz,
1 S.W.3d 1, 5-6 (Tenn. Crim. App. 2003).

        The Defendant complains of several instances of misconduct during the
evidentiary phase of the trial. In the first instance, the prosecutor asked the victim‟s
aunt if she was surprised by what the victim had told her the Defendant had done, and the
victim‟s aunt replied that she was not. The witness made no further comment, and the
State did not ask another question on this issue. No objection was made by the
Defendant. He now argues that this was an attempt to open the door to the Defendant‟s
past crimes and behaviors. We conclude that this question and the witness‟s answer did
not prejudice the Defendant, because no further questions on the issue were asked, and
the jury heard no testimony from this witness about the Defendant‟s past crimes or
behaviors. We further note that the Defendant did not request a curative measure from
the trial court.

       The second instance was when the State made a comment about defense counsel
misspelling the victim‟s name. During redirect-examination of the victim, the State
asked her how to spell her last name, which she did, and then the State made a comment
that defense counsel had misspelled her name on a sticky note attached to an exhibit.
No objection was made by the Defendant. The Defendant now contends that the State‟s
comment had no relevance and was an attempt to “inflame the jury and belittle the
defense.” We agree with the Defendant that the comment was unnecessary and
irrelevant to the charge of rape. However, the Defendant has presented no evidence to
support his claim that the comment had any impact on the jury or affected the outcome of
their verdict.

       The final instances complained of by the Defendant occurred during closing
arguments.      First, the Defendant contends that the State made an incorrect,
inflammatory comment about the evidence when it said the following: “With a wicked
grin the next day [after the rape] [the Defendant] came back to his victim and he said to
her, “I want some more.” The Defendant contends that this comment was an
intentionally incorrect statement of the evidence designed to prejudice the jury. We
agree that no evidence was presented that the Defendant had a grin on his face when he
told the victim, at her aunt‟s house the day after the rape, that he “wanted some more;”
we note that the victim did testify that the Defendant made the comment. However, the
Defendant has failed to show how this comment prejudiced the jury or affected its

                                                17
verdict. He also failed to object or request a curative instruction when the irrelevant
comment was made. The Defendant also complains that the State referred to the
Defendant‟s cousin, Mr. Hill, as a “drug dealer” when addressing his credibility as a
witness and that fact was not in evidence. We disagree. Mr. Hill testified that he had
recently pleaded guilty to delivery of Schedule II cocaine, although he denied that he was
a drug dealer. It was well within the State‟s province to argue, based on his conviction,
that Mr. Hill was a drug dealer, and it was for the jury to consider Mr. Hill‟s credibility in
light of his felony conviction. The State‟s comment during closing argument was not
improper.

        Having reviewed each instance complained of, we conclude that there is nothing
in the record to support the Defendant‟s contention that the State‟s comments or
questions fall into the arena of prosecutorial misconduct. The Defendant is not entitled
to relief on this issue.


                                      H.   Sentencing

        The Defendant lastly contends that the trial court erred when it sentenced him.
He alleges that his sentence is excessive considering the mitigating factors and the proof
at the sentencing hearing. The State responds that the trial court properly sentenced the
Defendant.

       The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments
describe the process for determining the appropriate length of a defendant‟s sentence.
Under the Act, a trial court may impose a sentence within the applicable range as long as
the imposed sentence is consistent with the Act‟s purposes and principles. T.C.A. '
40-35-210(c)(2), (d) (2010); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).

       In State v. Bise, the Tennessee Supreme Court announced that “sentences imposed
by the trial court within the appropriate statutory range are to be reviewed under an abuse
of discretion standard with a „presumption of reasonableness.‟” 380 S.W.3d 682, 708
(Tenn. 2012). A finding of abuse of discretion “reflects that the trial court‟s logic and
reasoning was improper when viewed in light of the factual circumstances and relevant
legal principles involved in a particular case.” State v. Shaffer, 45 S.W.3d 553, 555
(Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an
abuse of discretion, the record must be void of any substantial evidence that would
support the trial court‟s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing
court should uphold the sentence “so long as it is within the appropriate range and the
record demonstrates that the sentence is otherwise in compliance with the purposes and

                                                 18
principles listed by statute.” Bise, 380 S.W.3d at 709-10. In other words, so long as
the trial court sentences within the appropriate range and properly applies the purposes
and principles of the Sentencing Act, its decision will be granted a presumption of
reasonableness. Id. at 707. Further, we review a trial court‟s decision to impose
consecutive sentences for an abuse of discretion with a presumption of reasonableness.
State v. Pollard, 432 S.W.3d 851 (Tenn. 2013).

        In the present case, the trial court sentenced the Defendant as a Range II offender
to a fifteen-year sentence, after finding that the Defendant was a multiple offender, with
multiple convictions beyond those necessary to establish the appropriate range, including
multiple misdemeanor convictions in Tipton and Haywood counties. The trial court
found no mitigating factors. The Defendant alleges that the trial court should have
considered as mitigation that the Defendant worked while on bond and had the support of
multiple family members. In light of those factors, the Defendant contends that
ordering him to serve his sentence at one hundred percent was excessive.

        We conclude that the trial court did not abuse its discretion when it imposed a
within range sentence in this case. The Defendant‟s history of criminal convictions,
both felony and misdemeanor, in multiple counties, is lengthy. No evidence of
mitigation was presented at the sentencing hearing. Accordingly, we conclude that the
trial court did not abuse its discretion when it found that the Defendant was a multiple
offender and imposed an in-range sentence to be served in incarceration. Furthermore,
the requirement that the Defendant serve one hundred percent of his sentence is
statutorily required. See T.C.A. § 40-35-501(i)(2) (2014). The Defendant is not
entitled to relief on this issue.

                                        III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court‟s judgment.

                                                    ________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




                                               19
