         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE         FILED
                           AUGUST 1999 SESSION
                                                     October 5, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 01C01-9802-CR-00076
      Appellee,                     )
                                    )    DAVIDSON COUNTY
VS.                                 )
                                    )    HON. SETH NORMAN,
PATRICK THURMOND,                   )    JUDGE
                                    )
      Appellant.                    )    (Aggravated Burglary,
                                    )    Aggravated Rape - 2 Counts,
                                    )    Attempted Aggravated Rape,
                                    )    Aggravated Sexual Battery)



FOR THE APPELLANT:                       FOR THE APPELLEE:

JAMES ROBIN McKINNEY, JR.                PAUL G. SUMMERS
214 Second Avenue North                  Attorney General and Reporter
One Washington Square, Suite 103
Nashville, TN 37201-1647                 ELIZABETH B. MARNEY
(On Appeal)                              Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
TERRANCE E. McNABB                       425 Fifth Avenue North
430 Third Avenue North                   Nashville, TN 37243-0493
Suite 200
Nashville, TN 37201-1105                 VICTOR S. JOHNSON III
(At Trial)                               District Attorney General

                                         KYMBERLY H. HAAS
                                         Assistant District Attorney General
                                         222 Second Avenue North
                                         Washington Square, Suite 500
                                         Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                     OPINION



       A Davidson County jury convicted defendant of aggravated burglary, a Class

C felony; two counts of aggravated rape, Class A felonies; attempted aggravated

rape, a Class B felony; and aggravated sexual battery, a Class B felony. The trial

court sentenced defendant to sentences of three years for aggravated burglary,

twenty years for each aggravated rape, ten years for attempted aggravated rape,

and ten years for aggravated sexual battery. The trial court imposed consecutive

sentencing for the two aggravated rapes and the attempted aggravated rape

resulting in an effective fifty-year sentence. In this appeal as of right, defendant

raises the following issues for our review:

       1.     whether the evidence was sufficient to support the
              verdicts;

       2.     whether the trial court correctly denied his motion in
              limine seeking to ensure the presence of other African-
              American males in the courtroom during in-court
              identifications;

       3.     whether the trial court erred in allowing the introduction
              of fiber evidence;

       4.     whether the trial court correctly allowed the jury to view
              the photo lineup;

       5.     whether the trial court correctly ruled that a detective’s
              notes were not Jencks material;

       6.     whether defendant was denied a speedy trial;

       7.     whether the trial court erred by not giving the
              eyewitness identification jury charge; and

       8.     whether the trial court imposed an excessive sentence.

After a complete review of the record, we find no reversible error and AFFIRM the

judgment of the trial court.




                                          2
                                   I. FACTS



      On September 8, 1994, Ana Paulo Majano worked as a housekeeper for the

Drury Inn. At about 9:00 a.m., while cleaning the bathroom of a fourth-floor room,

she heard a noise from the sleeping area. She found a man standing in the room’s

sleeping area. He wore a black shirt, long black shorts, black gloves, and held a

pistol. The man tried to speak to Majano, but she does not understand any English.



      When Majano tried to escape, defendant grabbed her by the shirt and put the

gun to her head. Then, he threw her on the bed and put a pillowcase over her

head. He raped her by performing cunnilingus and penetrating her vaginally with

his penis. When he tried to put his penis in her mouth, she pushed him away. He

also kissed her on her breasts. Trial testimony established that the attack lasted

between one and 1½ hours. Majano later identified defendant as her attacker.



      The assault ceased when fellow Drury Inn staff members, Leah Adams and

Lourdes Rivera, banged on the door and called out to Majano. Defendant motioned

for Majano to re-dress while he did the same. While Adams and Rivera tried to

open the hotel room door, defendant opened the door and pushed his way between

the women.



      Rivera chased defendant down the steps and around the building to a

restaurant parking lot behind the hotel. When she accused him of raping Majano,

defendant replied, “she gave it to me.” Rivera watched defendant get into a gray

Chevrolet Corsica and memorized the license plate number as defendant drove

away. Rivera related the number “099 JKB” to a hotel manager who, in turn, related

it to police. When asked by Detective Danny Baxter for the number from memory,

Rivera related the number “099 JKF.” Baxter found that “099 JKF” was registered

to the wrong type of car, but confirmed that “099 JKB” was the plate number of a

Corsica registered in defendant’s name.



                                        3
       Earlier that morning, Lynn King, a housekeeper at nearby Days Inn saw a

man, wearing all black clothing, roaming the halls of that hotel. She and other

housekeepers had seen the same man, in the same clothing, lingering around the

hotel a couple of weeks earlier. King identified defendant as the man she saw.



       Detective Baxter interviewed the victim and several witnesses. Based upon

the physical descriptions and the owner registration information derived from the

license number given by Rivera, Baxter put together a photo lineup which included

the defendant. Ana Paulo Majano, Lourdes Rivera, and Lynn King identified

defendant as the perpetrator from that lineup.1



       Baxter secured a search warrant for defendant’s residence where he

collected items of clothing thought to be associated with the rape of Majano.

Analysis of that clothing by the Tennessee Bureau of Investigation (TBI) crime

laboratory revealed fiber on the victim’s clothing that was consistent with a fiber on

the defendant’s clothing.



       The defendant did not testify at trial.



       Based upon the evidence introduced at trial, the jury convicted the defendant

of aggravated burglary, two counts of aggravated rape (cunnilingus and penile

penetration), attempted aggravated rape (fellatio), and aggravated sexual battery.



                       II. SUFFICIENCY OF THE EVIDENCE



       In his first issue, defendant challenges the sufficiency of the evidence used

to convict him. Specifically, he claims the lack of physical evidence and the victim’s



       1
        Kristin Fletcher, another Days Inn housekeeper, identified defendant as the man
she saw lingering around the hotel in August 1994. Another Days Inn housekeeper
apparently picked someone other than defendant from the lineup; two other witnesses
made no identification at all.

                                           4
failure to identify defendant as her assailant signifies a failure by the state to carry

its burden of proof.



         When a defendant challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution to determine

whether “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, 318, 99 S.Ct.

2781, 2789, 61 L.Ed.2d 560, 573 (1979). We do not reweigh or reevaluate the

evidence and are required to afford the state the strongest legitimate view of the

proof contained in the record as well as all reasonable and legitimate inferences

which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).     It is the defendant’s burden to show this Court why the evidence is

insufficient to support the verdict returned by the trier of fact in his or her case.

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



         Evaluation of witnesses’ credibility, the weight and value to be given to the

evidence, and resolution of factual issues raised by the evidence is left to the trier

of fact. Cabbage, 571 S.W.2d at 835. A guilty verdict rendered by the jury and

approved by the trial judge accredits the testimony of the state’s witnesses, and a

presumption of guilt replaces the presumption of innocence. State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973).



         As for the lack of physical evidence such as semen, body fluids, and hairs,

a vaginal swab taken from the victim during a medical-legal examination (MLE)

produced some seminal fluid. However, the sample was insufficient for purposes

of DNA analysis.



         A florescent light scan revealed the possible presence of semen on the

victim’s panties which might have provided a sufficient sample for testing. However,

misplacement of the panties by the hospital precluded analysis by the TBI.



                                           5
       Nonetheless, contrary to defendant’s assertion, the victim did make positive

photo lineup and in-court identifications of defendant, as did Lourdes Rivera and

Lynn King. The victim identified defendant as the man who raped and sexually

assaulted her at gunpoint; Rivera identified defendant as the man she pursued

away from the hotel room where Majano was raped; and King identified defendant

as the man she witnessed lingering at the nearby Days Inn. The license plate

number provided by Rivera linked the type of car driven by the assailant to a car

registered in defendant’s name. Other eyewitnesses gave consistent descriptions

of defendant’s physical features and clothing.



       Taken in the light most favorable to the state, this evidence is more than

sufficient to support the defendant’s convictions for aggravated burglary, two counts

of aggravated rape, attempted aggravated rape, and aggravated sexual battery.



       This issue is without merit.




                        III. IN-COURT IDENTIFICATIONS



       Defendant assigns as error the trial court’s denial of his request to have other

African-American males present when witnesses made their in-court identifications.

Defendant claims the victim failed to make any out-of-court identification prior to

trial. He further claims to have been the only African-American male in the

courtroom when the witnesses made their in-court identifications. This, defendant

argues, caused the in-court identification process to be unduly suggestive which

gave rise to a substantial likelihood of misidentification.        He advocates the

application of the five-factor test established by the United States Supreme Court

in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), to reach a

finding that the in-court identifications violated his due process rights.




                                          6
       First, we note that there is nothing in the record that indicates the trial court

refused defendant the opportunity to have other African-American males in the

courtroom at the time of the in-court identifications. The record reflects neither a

written denial nor an oral denial.      Furthermore, defense counsel offered no

contemporaneous objections to the in-court identifications.



       Second, contrary to defendant’s assertion, the victim did make an out-of-

court photo identification prior to trial, as discussed above.



       Third, the record is devoid of information regarding the racial make-up of the

courtroom audience. Defendant does not cite to any place in the record that

supports his allegation that he was the only African-American in the courtroom at

the time of the in-court identifications. When no evidence is preserved in the record

for review, we are precluded from considering the issue. State v. Roberts, 755

S.W.2d 833, 836 (Tenn. Crim. App. 1988).



       Nevertheless, assuming the trial court did deny defendant’s motion, and

assuming that defendant was the only African-American male in the courtroom,

denial of the motion was not an abuse of discretion. A trial court has the inherent

power to supervise and control its own court proceedings. State v. Cazes, 875

S.W.2d 253, 260 (Tenn. 1994); State v. Bragan, 920 S.W.2d 227, 239 (Tenn. Crim.

App. 1995). Defendant has failed to demonstrate prejudice.



       This issue is without merit.




                               IV. FIBER EVIDENCE



       Defendant also assigns as error the trial court’s denial of his motion

requesting the prosecution be prohibited from introducing fiber evidence. In his



                                           7
brief, defendant charges the state with failure to disclose information through the

pre-trial discovery process and cites to Tenn. R. Crim. P. 16(a)(1)(d) and 16(c).



       As the motion in limine was filed eight days prior to trial, clearly defendant

was aware pre-trial that the state intended to introduce fiber evidence. Furthermore,

our reading of the trial transcript reveals no contemporaneous objection to TBI

Agent Linda Littlejohn’s expert testimony regarding the fiber evidence in this case.



       This issue simply reflects a pre-trial discovery dispute. Given defense

counsel’s thorough cross-examination of Littlejohn, it is apparent that defendant

suffered no prejudice from the evidence’s late disclosure and admission.



       This issue is without merit.




                                V. PHOTO LINEUP



       Defendant next argues that the trial court erred in allowing the jury to view the

photo lineup containing defendant’s photograph. He claims the obvious use of

“mug shots” gave rise to a prejudicial inference of a criminal history.



       The lineup contained front-view and side-view photographs of six individuals,

including defendant. All the photographs were “mugshots,” and trial counsel made

no objection to the lineup’s exhibition to the jury. There is no prejudice.



       This issue is without merit.



                                           8
                             VI. JENCKS MATERIAL



       Defendant contends the trial court erred in finding notes taken by Detective

Baxter during Ana Paulo Majano’s interview did not qualify as Jencks material

subject to discovery under Tenn. R. Cr. P. 26.2(a).



       Rule 26.2(a) provides that:

              After a witness other than the defendant has testified on
              direct examination, the trial court, on motion of a party
              who did not call the witness, shall order the [non-
              moving] attorney . . . to produce, for the examination
              and use of the moving party, any statement of the
              witness that is in their possession and that relates to the
              subject matter concerning which the witness has
              testified.



       Investigative notes made in the course of a witness interview do not fall within

the requirement of Rule 26.2(a) where they are not a “substantially verbatim recital”

of a witness’ oral statement under Rule 26.2(g). State v. Payton 782 S.W.2d 490,

494-95 (Tenn. Crim. App. 1989).

       During his taped interview of Majano, Baxter took investigative notes. A

copy of the taped interview was provided to defendant. Appropriately, the trial court

denied defendant’s request for Baxter’s notes. Further, there is nothing to indicate

that the notes contained anything exculpatory. The trial court did not err, and no

prejudice inured to defendant.



       This issue is without merit.




                                VII. SPEEDY TRIAL



       Defendant complains in his next issue that the state denied him his

                                          9
constitutional right to a speedy trial, and that he was prejudiced by the delay.

Specifically, defendant charges that the delay between his indictment and trial

resulted in the prejudicial loss of crucial evidence.



       Without question, criminal defendants are constitutionally and statutorily

entitled to a speedy trial. U.S. Const. amend. VI; Tenn. Const. art. I, § 9; Tenn.

Code Ann. § 40-14-101. There is no set time limit within which the trial must

commence; rather, consideration must be given to the circumstances of each case.

The Tennessee Supreme Court has adopted the balancing test set forth in Barker

v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) as the method for

determining whether a defendant's right to a speedy trial has been violated. State

v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); State v. Baker, 614 S.W.2d 352, 353

(Tenn. 1981); State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1973). If, after

conducting this balancing test, it is concluded that the defendant was in fact denied

a speedy trial, constitutional principles require that the conviction be reversed and

the criminal charges dismissed. State v. Bishop, 493 S.W.2d at 83. The triggering

factor is the length of the delay. "Until there is some delay which is presumptively

prejudicial, there is no necessity for inquiry into the other factors that go into the

balance." Barker v. Wingo, 407 U.S. at 530.



       Defendant’s brief summarily states that he experienced a “lengthy pre-trial

detention,” that the “[s]tate was to blame for the delay,” and “[defendant] asserted

his right prior to his indictment.” His amended motion for new trial makes reference

to the trial court’s denial of a speedy trial motion. However, the record contains no

such motion or order of denial.



       It is the appellant’s duty to have prepared an adequate record in order to

allow a meaningful review on appeal. Tenn. R. App. P. 24. When no evidence is

preserved in the record for review, we are precluded from considering the issue.

Roberts, 755 S.W.2d at 836.



                                          10
      Nevertheless, assuming defendant timely asserted his right to a speedy trial,

he must show he was prejudiced by the delay. State v. Vance, 888 S.W.2d 776,

778 (Tenn. Crim. App. 1994). The most important inquiry with regard to prejudice

is whether the delay impaired the defendant's ability to prepare a defense. Id.



      No more than fourteen months passed between defendant’s arrest and trial.

Defendant attributes the loss of the victim’s underwear and “exculpatory” license

number information to this delay. Furthermore, he claims that Detective Baxter

caused the prejudicial delay of the TBI fiber analysis.       We find defendant’s

arguments uncompelling.



      First, testimony at trial showed that the victim’s underwear never came into

the state’s possession, but was misplaced by the hospital that performed the MLE.

Second, additional testimony showed the underwear might have proven detrimental

to defendant, since a fluorescent light test revealed the possible presence of semen

on them. Third, the license information related to law enforcement, both correct and

incorrect, was sufficient to identify defendant as a suspect.       And finally, as

discussed above, defendant was able to prepare for the presentation of fiber

evidence.



      Defendant has failed to demonstrate that he suffered any prejudicial delay

between arrest and trial.



       This issue is without merit.




                    VIII. JURY CHARGE - IDENTIFICATION



       In his next issue, defendant argues that the trial court should have given the

identification jury charge promulgated by State v. Dyle, 899 S.W.2d 607 (Tenn.



                                         11
1995). Defendant failed to include the jury charge in the record which precludes our

review and waives the issue. Tenn. R. App. P. 24. Nevertheless, assuming the

instruction was not given, we would find such failure to be harmless error.



       In Dyle, the Tennessee Supreme Court formulated a jury instruction to be

given in cases where identification is a material issue. The instruction provides that

the state carries the burden of proving “identification of the defendant as the person

who committed the crime” beyond a reasonable doubt. 899 S.W.2d at 612. It also

sets forth a list of factors which the jury may consider in determining whether the

state has met that burden. Those factors include:

       (1)    the witness’ capacity and opportunity to observe the
              offender;

       (2)    the witness’ degree of certainty and whether the
              identification is a product of his or her own recollection;



       (3)    any occasions on which the witness failed to make an
              identification or made an identification inconsistent with
              that at trial;

       (4)    any occasions on which the witness                  made
              identifications consistent with that at trial.

Id.; see also T.P.I. - CRIM. 42.05 (4th ed. 1995).



       The Tennessee Supreme Court held that it is plain error not to give this

instruction “when identification is a material issue and it is requested by defendant’s

counsel.” Dyle, 899 S.W.2d at 612. If identification is a material issue and the

instruction is not requested by defense counsel, “failure to give it will be reviewable

under a . . . harmless error standard.” Id.



       Identification is a material issue “when the defendant puts it at issue or the

eyewitness testimony is uncorroborated by circumstantial evidence.” Id. at n.4. In

this case, the record clearly shows defendant put identification at issue. However,

defendant also concedes that no identification instruction was requested.

Therefore, we review the trial court’s alleged failure to give the Dyle instruction

                                          12
under a harmless error analysis.



      Four witnesses (Majano, Rivera, Adams, and King) made in-court

identifications of the defendant. Three of those four (Majano, Rivera, and King)

made out-of-court identifications as well.      Defense counsel vigorously cross-

examined each of the three witnesses regarding the accuracy of the out-of-court

identifications and attempted to cast doubt upon the identifications by eliciting

testimony regarding the statements that accompanied them. Further, defense

counsel elicited testimony that Adams failed to make an out-of-court identification,

and another housekeeper from Days Inn identified someone other than defendant

as the man roaming the Days Inn premises.




       Nonetheless, the record unequivocally reflects that three witnesses picked

defendant’s photograph from Detective Baxter’s lineup. After receiving instructions

from Baxter, Majano placed her finger on defendant’s photograph. Rivera identified

defendant as the man who exited the room where Majano was raped. King

unequivocally identified defendant’s photograph as the man she witnessed at her

place of employment shortly before Majano’s rape.



       Our review of the entire transcript shows there were no misidentifications by

Majano, Rivera, or King. Any “uncertainty” expressed in the women’s statements

accompanying the identifications, when read in context, was satisfactorily explained.



       Clearly, the defendant placed identification into issue at trial. Identification

was obviously a material issue which should have dictated the giving of the

identification jury charge set forth by Dyle. Nonetheless, given the reliability of

these identifications in conjunction with the other evidence tying defendant to these

crimes, any error for failure to give the Dyle charge was harmless.




                                         13
                                  IX. SENTENCE



       Defendant received sentences of three years for aggravated burglary, twenty

years for each aggravated rape, ten years for attempted aggravated rape, and ten

years for aggravated sexual battery. Defendant does not contest the length of each

sentence, but challenges the trial court’s application of consecutive sentencing

which resulted in an effective fifty-year sentence. Specifically, defendant avers the

trial court disregarded the consecutive sentencing criteria set forth in Tenn. Code

Ann. § 40-35-115(b) and imposed an excessive sentence.




       A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that:

       ...

       (2) [t]he defendant is an offender whose record of criminal activity is
       extensive; [or]

       ...

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

Tenn. Code Ann. § 40-35-115(b)(2), (4); see also State v. Black, 924 S.W.2d 912,

917 (Tenn. Crim. App. 1995). Furthermore, the court is required to determine

whether the consecutive sentences (1) are reasonably related to the severity of the

offenses committed; (2) serve to protect the public from further criminal conduct by

the offender; and (3) are congruent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).



       Contrary to the defendant’s assertion, the trial court in this case did consider

Tenn. Code Ann. § 40-35-115(b). After determining the length of each sentence,

the court stated, “[w]ith regard to multiple convictions, the Court finds there are

reasons and factors [for the imposition of consecutive sentences], particularly




                                          14
reason two under consecutive sentencing law.” See Tenn. Code Ann. § 40-35-

115(b)(2).



       Thus, the trial court relied on defendant’s extensive criminal history, which

included the five offenses at issue in this case, the adult rape conviction, and the

juvenile adjudication, to impose consecutive sentencing. Upon our de novo review,

we conclude defendant also qualifies for consecutive sentencing as a dangerous

offender. Based upon the trial court’s finding that he committed these crimes

shortly after release from the penitentiary for his prior rape conviction, and the

uncontroverted testimony that he accomplished these crimes by use of a deadly

weapon, we find his “behavior indicates . . . no hesitation about committing a crime

in which the risk to human life is high.” See Tenn. Code Ann. § 40-35-115(b)(4).



       Furthermore, it is clear that a fifty-year sentence reasonably relates to the

severity of defendant’s offenses and is “necessary . . . to protect the public against

further criminal conduct by the defendant.” Wilkerson, 905 S.W.2d at 938. In this

case, defendant’s presence at another nearby hotel weeks before and again shortly

before his attack on an unsuspecting housekeeper demonstrates a deliberate and

predatory nature. His prior record indicates an on-going history of sexual offenses.

Defendant is a sexual predator from whom the public deserves protection.



       Consecutive sentencing is proper. This issue is without merit.




                                 X. CONCLUSION



       Based upon the foregoing, we AFFIRM the judgment of the trial court in all

respects.




                                         15
                                    ____________________________
                                     JOE G. RILEY, JUDGE



CONCUR:



____________________________
THOMAS T. WOODALL, JUDGE



____________________________
L.T. LAFFERTY, SENIOR JUDGE




                               16
