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

                STATE OF TENNESSEE v. TERRANCE WILKS

                 Appeal from the Criminal Court for Shelby County
                    No. 98-01734    John W. Campbell, Judge


             No. W2014-02304-CCA-R3-PC - Filed September 30, 2015


The Petitioner, Terrance Wilks, appeals from the Shelby County Criminal Court’s order
summarily dismissing his petition requesting deoxyribonucleic acid (“DNA”) testing
pursuant to the 2001 Post-Conviction DNA Analysis Act (“the Act”). See Tenn. Code
Ann. §§ 40-30-301 to -309. The Petitioner contends that the post-conviction court erred
when it concluded that he had not proven the statutory prerequisites for DNA analysis set
forth in the Act. Following our review, we affirm the post-conviction court’s summary
dismissal of the Petitioner’s petition.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment 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.
Lance Chism, Memphis, Tennessee, for the appellant, Terrance Wilks.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Kirby May, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                  FACTUAL AND PROCEDURAL BACKGROUND

       In 1998, a Shelby County jury convicted the Petitioner of one count of rape of a
child. The Petitioner appealed that conviction, challenging the sufficiency of the
convicting evidence and the trial court’s jury instruction on flight. See State v. Terrance
Wilks, No. W1999-00279-CCA-R3-CD, 1999 WL 1097832 (Tenn. Crim. App. Nov. 22,
1999), perm. app. denied (Tenn. May 9, 2000).
       On direct appeal, this court recounted the following evidence produced at the
Petitioner’s trial. On July 8, 1994, the victim, an eleven year-old, was visiting her aunt,
Betty Hawkins. Ms. Hawkins’s boyfriend, Vernon Smith, arrived at Ms. Hawkins’s
home that evening, and the Petitioner, a co-worker, accompanied him. Several other
children, also relatives of Ms. Hawkins, were at the home as well. Later that evening,
Ms. Hawkins and Mr. Smith went into one of the bedrooms to sleep. The Petitioner, the
victim, and the other children remained in the living room to sleep. The victim fell asleep
but later awoke and found that her pants and underwear had been pulled down. The
Petitioner was standing near her. The victim asked the Petitioner what he was doing, and
he told her to go back to sleep. When the victim tried to call for help, the Petitioner
placed his hand over her mouth. The Petitioner then attempted to rape the victim
vaginally, but she was initially able to prevent him from doing so “by moving evasively.”
Wilks, 1999 WL 1097832, at *1.

       However, after a brief struggle, the Petitioner succeeded in penetrating the victim.
Wilks, 1999 WL 1097832, at *1. The victim eventually managed to free herself, and she
kicked the Petitioner in the groin. The Petitioner fell to the floor, and the victim ran to
Ms. Hawkins’s bedroom. The Petitioner fled out the back door. The victim told Ms.
Hawkins about the assault, and when asked whether she had been raped, the victim
replied that “it hurt.” Ms. Hawkins inspected the victim and identified what she believed
was semen on the victim’s body. Id.

       The victim was taken to the Memphis Sexual Assault Resource Center
(“MSARC”), where she was examined by a forensic nurse, Elizabeth Thomas. Wilks,
1999 WL 1097832, at *1. Ms. Thomas collected forensic samples using cotton swabs
inside the victim’s vagina and a cotton pad for the area surrounding the victim’s vulva.
She also collected the victim’s underwear for testing. Id.

       Melissa Suddeth, a serologist at the Memphis Crime Laboratory, retrieved the
samples Ms. Thomas had collected and tested them for the presence of sperm. Wilks,
1999 WL 1097832, at *1. The cotton swabs did not reveal the presence of sperm, but the
cotton pad, used to collect a sample from the vulva, did test positive for sperm. Ms.
Suddeth did not test the underwear. Id.

       Following Ms. Suddeth’s testing, the cotton pad was sent to the Tennessee Bureau
of Investigation’s (“TBI”) Forensic Services Crime Laboratory in Jackson, Tennessee.
Wilks, 1999 WL 1097832, at *2. There, TBI Special Agent Steven Weichman, a forensic
scientist, attempted to conduct a DNA test on the sperm cells from the cotton pad.
However, the sample collected was too small for analysis. Id.
       At trial, the victim “testified unequivocally that [the Petitioner] forcibly penetrated
her and that she was less than thirteen at the time of the offense.” Wilks, 1999 WL
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1097832, at *3. Ms. Hawkins testified that she observed semen on the victim
immediately after the assault and that the victim was visibly upset. Additionally, the
victim, Ms. Hawkins, and Mr. Smith each testified that the Petitioner fled out the back
door after the rape. Id. at *4.

        This court upheld the Petitioner’s conviction on direct appeal. On July 13, 2014,
the Petitioner commenced the instant action requesting post-conviction relief in the form
of DNA analysis pursuant to Tennessee Code Annotated section 40-30-303.1 In his
petition, the Petitioner alleged that at the time of his original trial in 1998, DNA testing
was in its relative infancy and that because DNA technology had “improved substantially
[it] would now allow for the same swabs to be adequately tested.” The Petitioner averred
that this would “show that the material collected from the cotton pad used to swab the
victim’s vulva did not belong to or come from the Petitioner.” On July 25, 2014, the
State filed a response to the petition, alleging that the Petitioner failed to prove that he
was entitled to DNA analysis.

        In its August 22, 2014 order denying the petition for DNA testing, the post-
conviction court concluded that the Petitioner failed to establish the second and third
requirements of Tennessee Code Annotated section 40-30-304. In accordance with those
statutory requirements, the court found that the Petitioner had “filed no evidence with the
[c]ourt that show[ed] that the evidence that [was] to be tested still exist[ed] in such a state
as to allow for DNA testing.” The court noted that the State had “responded with
allegations that the evidence in question no longer exist[ed].” The court further found
that the record reflected that DNA testing had been attempted prior to the Petitioner’s
trial, but the sample was too small for analysis. The court stated that the Petitioner failed
to provide any proof that additional testing “would overcome this problem.” This timely
appeal followed.

                                                      ANALYSIS

       On appeal, the Petitioner contends that the post-conviction court erred by
summarily dismissing his petition for post-conviction DNA analysis. Specifically, he
submits that, even if the post-conviction court did not err in concluding that he failed to
prove that the evidence at issue still existed, his due process rights were violated based on
the State’s failure to preserve that evidence pursuant to State v. Ferguson, 2 S.W.3d 912
(Tenn. 1999). The State responds that the Petitioner is not entitled to relief because the
post-conviction court correctly concluded that he had failed to meet the four criteria in
section 30-40-304. The State further responds that Ferguson is inapplicable because the
Petitioner’s conviction preceded the enactment of the Act.

1
    The Petitioner filed his petition pro se but is represented by counsel on appeal.
                                                             -3-
                        I. 2001 Post-Conviction DNA Analysis Act

        Tennessee Code Annotated section 40-30-303 provides, as relevant to this appeal,
that a person convicted of rape of a child may at any time “file a petition requesting the
forensic DNA analysis of any evidence that is in the possession or control of the
prosecution, law enforcement, laboratory, or court, and that is related to the investigation
or prosecution that resulted in the judgment of conviction and that may contain biological
evidence.” Upon a showing by a petitioner that the following four criteria are met, the
post-conviction court shall order DNA analysis after providing notice and an opportunity
for the State to respond:

       (1) A reasonable probability exists that the petitioner would not have been
       prosecuted or convicted if exculpatory results had been obtained through
       DNA analysis;

       (2) The evidence is still in existence and in such a condition that DNA
       analysis may be conducted;

       (3) The evidence was never previously subjected to DNA analysis or was
       not subjected to the analysis that is now requested which could resolve an
       issue not resolved by previous analysis; and

       (4) The application for analysis is made for the purpose of demonstrating
       innocence and not to unreasonably delay the execution of sentence or
       administration of justice.

Tenn. Code Ann. § 40-30-304.

       When a petitioner proves that the four requirements in section 40-30-304 are met,
the post-conviction court is required to order testing. However, failure to prove any one
of the four criteria is fatal to a petitioner’s claim. See William D. Buford v. State, No.
M2002-02180-CCA-R3-PC, 2003 WL 1937110, at *6 (Tenn. Crim. App. Apr. 24, 2003).
Therefore, “[i]f the [S]tate contests the presence of any qualifying criteria and it is
apparent that each prerequisite cannot be established, the [post-conviction] court has the
authority to dismiss the petition.” Id.

        “The post-conviction court is afforded considerable discretion in determining
whether to grant a petitioner relief under the Act, and the scope of appellate review is
limited.” See Jack Jay Shuttle v. State, No. E2003-00131-CCA-R3-PC, 2004 WL
199826, at *4 (Tenn. Crim. App. Feb. 3, 2004). Before rendering its decision, the post-
conviction court should consider all of the available evidence, including the evidence
                                            -4-
presented at trial and any stipulations of fact made by either party. Id. The post-
conviction court may also consider any opinions of this court and our supreme court on
direct appeal of the petitioner’s convictions and any appeals of the petitioner’s prior post-
conviction or habeas corpus actions. Id. On appeal, we review the post-conviction
court’s decision whether to grant or deny the petition under an abuse of discretion
standard. See State v. Ricky Lee Nelson, No. W2012-00741-CCA-R3-CD, 2014 WL
295833, at *5 (Tenn. Crim. App. Jan. 27, 2014).

        The Petitioner first argues that the post-conviction court erred in concluding that
he had failed to prove that the evidence was still in existence and in a condition sufficient
to allow for testing. The Petitioner asserts that the State’s response alleging that the
requested evidence was no longer in existence is insufficient to prove that the evidence is
in fact no longer available for testing. Further, the Petitioner argues that “a pro se
petitioner should not be required . . . to present proof establishing that the physical
evidence is in such a condition that DNA testing can still be conducted” in order to
survive summary dismissal. Rather, the Petitioner submits that the better practice is for
the post-conviction court to appoint counsel “so that counsel can provide the post-
conviction court with affidavits from experts, which address the testability of the physical
evidence.”
        In its July 25, 2014 response to the petition for DNA analysis, the State recounted
its attempt to locate the relevant evidence as follows:

       The State contacted [the] MSARC. According to Kristin Gable, after the
       victim was seen at [the Rape Crisis Center (“RCC”)], the nurse packaged
       the rape kit and hand delivered it to [the Memphis Police Department
       (“MPD”)] and the evidence ceased to be in the possession of the MSARC
       at that time. The State contacted the [MPD]. According to [Lieutenant]
       Cody Wilkerson and [Sergeant] Quita Knowlton, the rape kit is not
       currently in the possession of the [MPD]. According to MPD records, the
       only evidence that was in possession of the MPD was a cassette tape. That
       cassette tape was forwarded to the Shelby County Clerk’s property room on
       August 4, 1994. The State contacted [the] TBI. According to Donna
       Nelson, the rape kit was in the possession of [the] TBI from February 10,
       1998 to June 18, 1998. The evidence was returned to Lauren Henderson.
       Lauren Henderson, an MPD employee, was assigned to the [RCC]. The
       State contacted the Shelby County Clerk’s property room. According to the
       clerks, they have not been able to locate any evidence associated with this
       matter, but they will continue to research the issue. The State contacted the
       MPD property room. According to the MPD property clerks, they have not
       been able to locate any evidence associated with this matter, but they will

                                             -5-
       continue to research the issue. So, the State has not been able to locate the
       rape kit and other evidence associated with this matter at this time.

       In support of his contention that the State did not provide adequate proof that the
requested evidence is no longer in existence, the Petitioner relies upon Steven Griffin v.
State, No. M2003-00557-CCA-R3-PC, 2004 WL 1562390 (Tenn. Crim. App. July 13,
2004), rev’d on other grounds by Griffin v. State, 182 S.W.3d 795 (Tenn. 2006). In that
case, a panel of this court examined whether the State’s “blanket” response that “[n]o
DNA evidence exists which could be subject to testing or analysis at this time” provided
a substantial basis for the post-conviction court to conclude that the Petitioner had failed
to meet criterion (2) of section 40-30-304. Id. at *4 (brackets and alterations in original).
This court noted that the State’s response “offered no explanation regarding evidence
which might have existed previously or regarding efforts to locate evidence still
existing.” Id. The court went on to say that “[i]f the [S]tate is remiss in providing an
explanation or if its explanation is not sufficiently detailed, the [post-conviction] court
has an obligation to make reasonable factual inquiries before dismissing the petition.” Id.
(Emphasis added). However, post-conviction courts are not required to “conduct lengthy
or protracted evidentiary hearings on the matter . . .” Id.

       We find Griffin distinguishable from the instant case because here, unlike in
Griffin, the State’s response specifically outlined the steps it had taken to locate testable
evidence from the Petitioner’s case. In Griffin, the court merely held that a cursory
assertion that the evidence no longer existed, unsupported by an explanation which is
“sufficiently detailed,” could not support summary dismissal of a petitioner’s action. See
id. The Petitioner asserts that the State’s response is “further weakened” by its failure to
attach affidavits from the people it contacted when attempting to locate the evidence.
However, a panel of this court has previously affirmed a post-conviction court’s
summary dismissal of a petition where the State outlined the specific steps it had taken in
an attempt to locate the evidence, even though no affidavits from the custodians of the
evidence were provided. See Johnny Phelps v. State, E2005-02405-CCA-R3-PC, 2006
WL 2328661, at *3 (Tenn. Crim. App. Aug. 11, 2006) (upholding denial of petition for
post-conviction DNA analysis where the State specifically “outlined the steps of its
investigation,” including conversations with local law enforcement and the TBI, and
stated that it had been “unable to locate any biological evidence”). Because in this case
the State provided a detailed response outlining its unsuccessful attempts to locate the
requested evidence, the post-conviction court had a sufficient basis from which to
conclude that the Petitioner failed to prove the evidence was still in existence.

       Additionally, the Petitioner has provided no authority in support of his argument
that a pro se petitioner should not be required to present proof that evidence is still in
testable condition in order to survive summary dismissal. First, Tennessee Code
                                             -6-
Annotated section 40-30-307 makes clear that the appointment of counsel is
discretionary. (“The court may . . . appoint counsel for an indigent petitioner.”)
(Emphasis added). Moreover, even with the assistance of counsel on appeal, the
Petitioner has provided no proof that the evidence he seeks to have analyzed is currently
in testable condition. See Powers v. State, 343 S.W.3d 36, 59 (Tenn. 2001) (stating that
“a petitioner [is] required to present scientific proof demonstrating that DNA analysis is
possible when the State argues otherwise”); see also Reginol L. Waters v. State, No.
M2003-01870-CCA-R3-CO, 2005 WL 351258, at *2 (Tenn. Crim. App. Feb. 11, 2005)
(holding that where the uncontroverted trial testimony showed that the sperm sample
collected was insufficient for DNA analysis, the petitioner had failed to prove that the
evidence was still in existence and in such a condition that DNA analysis could be
conducted).

        In sum, the Petitioner has failed to satisfy subsection 40-30-304(2)‒that the
evidence is still in existence and in a condition sufficient to allow for DNA analysis. The
failure to prove any one of the requirements of section 40-30-304 is fatal to the action.
See Buford, 2003 WL 1937110, at *6. Therefore, we conclude that the post-conviction
court did not abuse its discretion in summarily dismissing the petition, and the Petitioner
is not entitled to relief.

                                   II. State v. Ferguson

       The Petitioner next asserts that, upon concluding that the evidence is no longer in
existence and in testable condition, his case should nonetheless be remanded for a hearing
pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). The State responds that
Ferguson does not apply because the Petitioner’s conviction precedes the enactment of
the Act.

        In Ferguson, our supreme court addressed the “consequences [that] flow from the
State’s loss or destruction of evidence alleged to have been exculpatory.” Id. at 915. The
analysis in Ferguson was focused on the State’s pre-trial obligation to preserve evidence
that might prove exculpatory. See id. at 917 (stating that its “central objective [was] to
protect the defendant’s right to a fundamentally fair trial”). Therefore, panels of this
court have repeatedly refused to extend the Ferguson holding to cases brought under the
Act, where a petitioner’s conviction predated implementation of the Act. See, e.g.,
Buford, 2003 WL 1937110, at *6 (stating that where the Act did not become effective
until twenty years after the convictions at issue, the pre-trial obligation of the prosecution
to preserve evidence pursuant to Ferguson would not apply); Clinton Wayne Lynch v.
State, No. M2002-02801-CCA-R3-PC, 2003 WL 21349919, at *2 (Tenn. Crim. App.
June 10, 2003) (noting that the “pre-trial obligation of the prosecution to preserve
evidence necessary to assure a fair trial is not applicable” where the Petitioner pled guilty
                                             -7-
fifteen years prior to the adoption of the Act). Furthermore, other panels of this court
have questioned whether the rationale espoused in Ferguson would ever apply in a post-
conviction case. See Tommy Nunley v. State, No. W2003-02940-CCA-R3-PC, 2006 WL
44380, at *6 n.3 (Tenn. Crim. App. Jan. 6, 2006); Edward Thompson v. State, No.
E2003-01089-CCA-R3-PC, 2004 WL 911279, at *2 (Tenn. Crim. App. Apr. 29, 2004).

       These cases reflect the sound policy that it would be “an unreasonable burden on
the State to forever preserve each article of evidence collected in every investigation on
the chance that it may later be called upon for further analysis.” See Ashad R.A.
Muhammad Ali v. State, No. M2005-01137-CCA-R3-PC, 2006 WL 1626652, at *3
(Tenn. Crim. App. June 2, 2006). As the State points out, in this particular case, the
Petitioner was convicted in 1998, three years before the adoption of the Act and sixteen
years before filing this action. The Petitioner has provided no authority or rationale that
would persuade us to change course from the previous decisions of this court and apply
Ferguson to cases where evidence is lost or destroyed prior to adoption of the Act.
Accordingly, the Petitioner is not entitled to relief on this issue.

                                     CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.

                                                  ______________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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