        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 March 30, 2010 Session

             STATE OF TENNESSEE v. DAVID FREEMAN CLAY

                   Appeal from the Criminal Court for Knox County
                          No. 83421 Bob R. McGee, Judge




              No. E2009-00868-CCA-R3-CD - Filed September 16, 2010




The Defendant, David Freeman Clay, was convicted by a Knox County Criminal Court jury
of two counts of sexual battery, a Class E felony, and three counts of assault, a Class B
misdemeanor. The trial court sentenced the Defendant as a Range II, multiple offender to
four years for each sexual battery conviction and six months for each assault conviction and
ordered the sentences to be served consecutively for a total effective sentence of nine years
and six months in the custody of the Department of Correction. In this appeal as of right, the
Defendant contends that the evidence is insufficient to support his convictions and that the
trial court failed to fulfill its duties to approve the jury verdict under Rule 33 of the
Tennessee Rules of Criminal Procedure. Following our review, we affirm the judgments of
the trial court.

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


D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined. J OSEPH M. T IPTON, P.J., concurring in the results only.

Mart S. Cizek, Clinton, Tennessee, attorney for appellant, David Freeman Clay.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Phil Morton, Assistant
District Attorney General, attorneys for appellee, State of Tennessee.
                                         OPINION

       A Knox County Grand Jury indicted the Defendant for ten counts of aggravated rape
and one count of especially aggravated kidnapping concerning the August 5, 2005 sexual
assault of Debbie Rodriguez. Rocky Rogers testified that during the late morning of August
5, he was cutting hair at his Knoxville barber shop when he looked up to see “a lady walking
towards the building naked.” He met her at the front door to tell her she could not come
inside because there were children in the shop. She told him that “she was tied up and had
been kidnapped and raped.” However, Mr. Rogers said that there was not a rope around the
woman’s neck. He told the woman to go to the store next door and that he would call the
police to meet her there. He tried to give her a coat to wear, but she had already left. Mr.
Rogers also stated that there was a car wash a few doors down from his barber shop.

       Knoxville Police Department (KPD) Patrol Officer Keith Lyon testified that on
August 5 when his shift ended he took his patrol car to a car wash where an employee
brought a woman to him who claimed she had been raped. Officer Lyon said that the woman
had a t-shirt and towel “to put around her.” Officer Lyon said that there was not a rope
around the woman’s neck. He said that the woman “appeared to be very traumatized and
scared to death.” The woman told Officer Lyon that she had been raped at a house about two
doors from the car wash. He called for an ambulance and an on-duty officer. Officer Lem
Clemons arrived to complete the investigation.

        The victim, Debbie Rodriguez, testified that she was living in Walter P. Taylor
Homes, “the projects,” on August 5, 2005. She said that she walked to a nearby convenience
store at around 10:00 p.m. to buy a beer. She was wearing jeans, clogs, and a blouse and was
carrying a small change purse. As she was walking to the store, she saw “a black guy”
walking towards her. As their paths met, the man said hello to her, grabbed her by the neck,
and pulled her with him. The victim testified that the man put something around her neck
that “felt like a shoe string” and pulled her into an abandoned house. She said that she tried
to run, but the man was choking her. She said he stuffed something like “a bandana” in her
mouth once they got inside the house. The victim said that as she struggled, the man told her
“do you want me to kill you like I killed that last bitch.” The man next instructed the victim
to take off her clothes and “to walk up those nine steps and if you do what I say then I might
let you live.” The victim said that she could not remember whether she took her clothes off
or the man did because she “kept blacking out and coming to” from the choking.

        The victim testified that she next remembered being “hogtied” with a rope around her
neck and her hands tied behind her back and attached to her legs. She said that she was
laying on a dirty mattress on the floor with a sleeping bag nearby. She described the room
as filthy with pornographic magazines and Milky Way wrappers all over the floor.


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       The victim testified that the man then began to rape her. He penetrated her anally with
his penis for about an hour. She described it as “horrible” and “very painful.” She said that
he talked “obscene” during each act and told her that she deserved what he was doing to her.
He made the victim move into different positions and wanted her to “say obscene things to
him.” She said that the man had a pocket-knife and used it to penetrate her anally once. The
victim said that the man “licked [her]. . . . used his penis in me, his hands, everything” both
anally and vaginally. The victim said that the man forced her to perform oral sex on him
also. The victim estimated that the man penetrated her “ten to twenty” times. She said that
she acted like she enjoyed the rapes because when she did, the man did not hurt her so bad.

        The victim testified that throughout the ordeal she “was just trying to think of how I
was going to live through it. I didn’t think I would live through it.” The man told her not
to try to escape to the next house because “he s[old] drugs for the people next door and they
[would] kill [her].” She said that she finally gained his confidence so he untied her so that
she could urinate. She said that he told her to urinate in a corner of the room and that each
time she did, he would urinate in the same spot. The victim stated that the man eventually fell
asleep. She said she was afraid to move initially, but when she realized that he really was
asleep, she “got up and . . . ran.” She said that the man woke up and tried to pull her back
into the room to give her her clothes, but she jumped from the balcony and landed in the
grass. She said that she ran “[b]arefooted and naked” to the barber shop. The man at the
barber shop told her to go to the convenience store next door for help because there were kids
in his shop. The victim said that she ran to the store where a man in the parking lot gave her
a “big t-shirt” from his car and told her she could find a police officer at the car wash.

        From the car wash, the victim went to the hospital in an ambulance. She said she was
afraid that the man was following her the entire time. She described the rape kit examination
as “very painful.” In the courtroom, the victim identified the Defendant as the man who had
assaulted her. She said that she had never met him before these offenses occurred.

        On cross-examination, the victim admitted that she had consumed “a forty” before the
Defendant assaulted her, but she said that she was sober throughout the incident. She
acknowledged that she may have said hello to the Defendant when he approached her on the
street that night. She also admitted that the arrest warrant contained no information about
the Defendant putting a rope or shoe string around her neck; but, on redirect examination,
she stated that there was not enough room on the warrant to include everything that happened
to her that night. The victim said that Ray Cantrell was her neighbor at Walter P. Taylor
Homes.

      Joseph Cox, a crime lab specialist with the KPD, testified that he went to the
abandoned house to recover evidence for analysis. He said that as soon as he arrived, he


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found a used condom in the driveway.1 He described the house as “extremely dirty” and “not
a comfortable place to be.” He found clothing near some steps – blue jeans, a bra, and an
“undershirt.” Mr. Cox testified that he found a mattress and sleeping bag in a back bedroom,
along with pornographic magazines. He said the floor of the room was filthy. Mr. Cox also
collected from the room a broken belt, Milky Way wrappers and bags, an empty vodka
bottle, and “a broken glass tube that seemed like it had been used as a crack pipe.”

       Jennifer Robbins, a registered nurse, testified that she worked at the Sexual Assault
Crisis Center at the time of the victim’s assault and performed the rape kit examination on
the victim. As a certified sexual assault nurse examiner, Ms. Robbins stated that she
performs a “head to toe assessment” of a victim, gathers evidence, treats injuries, and offers
referrals for psychological counseling or further medical treatment, when necessary.

       Ms. Robbins testified that on August 5, 2005, she met the victim at Baptist Hospital.
She said that the victim was “very disheveled, tearful and sobbing and crying” when she first
saw her. Ms. Robbins took photographs to document the victim’s injuries; the photographs
show ligature marks around the victim’s neck that looked as if they were made with a belt
or rope, abrasions to the victim’s back and shoulders, and suction-like bruises to the victim’s
chest. The victim’s account of her attack mirrored her testimony at trial. The victim also
told Ms. Robbins that her attacker forced her to masturbate him and that he ejaculated on her.
Ms. Robbins determined that the victim’s account was consistent with her injuries which
included ligature marks on her neck and wrists, suction marks on her chest, and other
abrasions and bruises. Specifically, abrasions on the victim’s back correlated to the victim’s
claim that she had been hogtied and suffered “burns” from the carpet and mattress.

       Ms. Robbins testified that the victim was “in a lot of pain” – so much that “she was
unable to tolerate” the rectal examination. Ms. Robbins said that she also had to stop “mid
way through” the vaginal examination due to the victim’s discomfort. Ms. Robbins was able
to determine through her examination that the victim suffered injuries to her vaginal area
consistent with “a forceful penetration.” Ms. Robbins collected saliva, ejaculate, and hair
samples from the victim’s body, which were sent in the rape kit for analysis.

       On cross-examination, Ms. Robbins said that she did not perform any blood tests on
the victim to determine drug or alcohol levels in her blood. She said she was not familiar
with the effects of drugs or prescription medications on vaginal lubrication. She also
conceded that the abrasions on the victim’s back could have occurred by the victim’s landing



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           Detective Patricia Tipton testified that the condom was not tested because it was found outside in an area
prevalent with prostitution and the victim never mentioned her attacker using a condom.

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on the grass when jumping from a balcony. However, on redirect examination, Ms. Robbins
stated that “everything [the victim] said was consistent with the findings.”

       Lawrence James, a forensic serologist with the Tennessee Bureau of Investigation
(TBI), was stipulated as an expert in forensic DNA and serology analysis. His analysis of
the rape kit evidence showed semen and saliva from the victim’s vaginal swabs. Mr. James
was unable to match any DNA on the vaginal swabs due to the limited nature of the samples.
However, swabs taken from the victim’s upper chest revealed the presence of sperm cells and
the DNA testing matched the saliva sample taken from the Defendant. Swabs taken from the
victim’s face also revealed sperm cells that matched the DNA of the Defendant.

        KPD Officer Philip Jenks testified that he arrested the Defendant on August 23, 2005,
for the sexual assault of the victim. Officer Jenks said that the Defendant initially denied his
identity, but when Officer Jenks produced “the wanted poster” and compared it to the
Defendant, the Defendant admitted that he was “David Clay.” Officer Jenks conducted a
routine search of the Defendant incident to the arrest and found a white sock, a blue bandana,
and a glass crack pipe. On cross-examination, Officer Jenks testified that the house where
he found the Defendant was a “known drug house, a problem house in the neighborhood.”

         Detective Patricia Tipton with the KPD violent crimes unit testified that she
interviewed the victim at Baptist Hospital. She described the victim’s demeanor as “almost
like a caged animal. . . . very much in the grip of fight or flight . . . . significantly traumatized.
. . . [and] really quite pitiful.” Six days after the assault, Detective Tipton showed the victim
a photographic line-up from which she made an identification of the Defendant as the man
“who had kidnapped, raped and choked her.” Following the victim’s identification, a warrant
was issued for the Defendant’s arrest.

        On cross-examination, Detective Tipton acknowledged that the victim did not report
in the warrant that the Defendant used a rope or shoe string during the initial confrontation.
Detective Tipton said that it was not uncommon for rape victims not to “remember every
minute detail” of an assault. On redirect, Detective Tipton reviewed her August 5 report
concerning the victim’s account of the assault; the report indicated that the victim reported
the use of the shoelace during the confrontation on the street. Detective Tipton stated that
the victim “always talked about shoe laces . . . and other things being used to bind her and
choke her . . . . [f]rom day one.”

      Ray Cantrell testified on behalf of the Defendant. He testified that he knew both the
Defendant and the victim. He said that sometime in August 2005, both of them were at his
house and that they left together. He also acknowledged that he was serving a sentence for
drug convictions at the time of the trial.


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       The fifty-three year old Defendant testified that he is divorced with two adult children.
 He said that he had a successful life as a computer programmer before he became addicted
to cocaine following his divorce in 1985. His addiction led to a conviction for drug
possession and sale of cocaine which caused the loss of his job at IBM.

        Concerning the offenses, he testified that he and the victim went to the abandoned
house to smoke crack cocaine that they had purchased from Mr. Cantrell. The Defendant
indicated that he and the victim had a conversation about “what she wanted to get offered [in
exchange] for some crack.” The Defendant said that they agreed to go to the abandoned
house. He contended that it would have been impossible for the victim to have walked
through the house naked “without getting scratched or cut up.” He said they went to the
upstairs room where they drank vodka and smoked an “eight ball” of crack cocaine. He said
that they discussed the sexual things she would do in exchange for the cocaine. He described
the encounter as “almost like a business arrangement.” He explained that cocaine “gives you
an illusion that you can do more than you can” but that he was unable to maintain an erection
due to the alcohol and cocaine. He said that the victim was “sexually aroused” and “was
trying to get [him] to do things he couldn’t do” – leading to the variety of sexual acts that
occurred, including bondage. The Defendant said that the victim asked him to place a string
around her neck and pull it while he performed oral sex on her. He testified that he was
unable to penetrate her with his penis. He denied that he gagged the victim with a sock or
bandana or that he “hogtied” her. He said that any sexual activity was “agreed upon . . . I
paid for what I wanted, or she agreed on it.”

       The Defendant said that he fell asleep at around 6:00 in the morning. He awoke to
a noise and discovered $340 dollars missing from his pants. He found the victim on the
porch with his money in one hand and her clothes in the other. They struggled on the porch
for some time before the Defendant, realizing that it would not look good to be seen
struggling with a naked woman on the porch, took the victim’s clothes from her and told her
she would get her clothes back when she handed him his money. The Defendant decided that
the victim was not going to give him his money so he went inside to finish getting dressed.
He planned to confront the victim on her way out of the house, but when he returned to the
porch, the victim was gone with his money. The Defendant went back to work about two
blocks away. He testified that he was embarrassed by the events of the night.

       The jury acquitted the Defendant of the especially aggravated kidnapping count and
five counts of aggravated rape. Concerning the five remaining counts of aggravated rape,
the jury convicted the Defendant of the lesser included offenses of two counts of sexual
battery, a Class E felony, and three counts of assault, a Class B misdemeanor. The trial court
imposed Range II sentences of four years for each sexual battery conviction and sentences



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of six months for each assault conviction, to be served consecutively, for a total effective
sentence of nine years and six months.

       On appeal, the Defendant contends that the evidence is insufficient to support his
convictions because the victim’s “contradictory recollections in this case are too suspect.”
He also contends that the original trial judge failed to approve the verdicts as required by
Rule 33 of the Tennessee Rules of Criminal Procedure, the thirteenth juror rule, and that the
successor trial judge was precluded from approving the verdicts at the motion for new trial
hearing. The State argues that the jury resolved all conflicts in the testimony and credibility
issues by their verdict. The State concedes that it appears that the trial court did not approve
the verdict properly but that the successor trial judge approved the verdict by denying the
motion for new trial, the transcript of the hearing of which is notably absent from the record
on appeal. Following our review, we agree with the State.

                                         ANALYSIS

                                 Sufficiency of the Evidence

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, 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). The
appellate court does not reweigh the evidence; rather, it presumes that the jury has resolved
all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999).

       Essentially, the Defendant argues that the victim’s allegation of non-consensual sexual
contact should not be believed. However, in the light most favorable to the State, the
evidence shows that the victim endured hours of non-consensual sexual contact perpetrated
by the Defendant. The physical examination documented by Ms. Robbins was consistent
with the victim’s account of the assault. Forensic testing further revealed that sexual contact


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occurred between the Defendant and the victim. The jury resolved any conflicts in the
testimony or any credibility issue concerning the victim, as was their province to do, and
acquitted the Defendant of five of the ten aggravated rape counts and convicted him of lesser
included offenses on the remaining counts. We conclude that the evidence is sufficient to
support the convictions for sexual battery and assault in this case.

                                        Rule 33(d) Issue

        The Defendant argues that the original trial judge failed to perform his duties as
thirteenth juror in approving the jury verdict. He argues that the successor trial judge was
then precluded from performing these duties because the credibility of the witnesses was a
critical issue in this case. The State concedes that the original trial judge did not specifically
endorse the verdict as thirteenth juror. However, the State contends, because the transcript
of the motion for new trial hearing is absent from the record, we must conclude that the
successor trial judge was able to perform these duties based upon its review of the transcripts
from the trial. Following our review, we agree with the State.

       Rule 33(d) of the Tennessee Rules of Criminal Procedure provides that a “trial court
may grant a new trial following a verdict of guilty if it disagrees with the jury about the
weight of the evidence.” This rule “is the modern equivalent to the ‘thirteenth juror rule,’
whereby the trial court must weigh the evidence and grant a new trial if the evidence
preponderates against the weight of the verdict.” State v. Blanton, 926 S.W.2d 953, 958
(Tenn. Crim. App. 1996). In State v. Carter, 896 S.W.2d 119 (Tenn. 1995), our supreme
court held that the rule “imposes upon a trial court judge the mandatory duty to serve as the
thirteenth juror in every criminal case, and that approval by the trial judge of the jury’s
verdict as the thirteenth juror is a necessary prerequisite to imposition of a valid judgment.”
Carter, 896 S.W.2d at 122. However, the rule does not require a specific statement on the
record indicating the trial judge’s approval of the verdict, and in the absence of a specific
statement, the trial court’s order denying a motion for new trial constitutes an approval of the
jury’s verdict. Id.

       In this case the original trial judge was unable to rule upon the motion for new trial
due to the election of a successor trial judge. In situations when a trial judge is unable to
perform post-verdict duties due to absence, Rule 25(b) of the Tennessee Rule of Criminal
Procedure provides, in pertinent part,

       (b) After Verdict of Guilt. -




                                               -8-
       (1) In General. - After a verdict of guilty, any judge regularly presiding in or
       who is assigned to a court may complete the court’s duties if the judge before
       whom the trial began cannot proceed because of absence . . . .

       (2) Granting a New Trial. - The successor judge may grant a new trial when
       that judge concludes that he or she cannot perform those duties because of the
       failure to preside at the trial or for any other reason.

Tenn. R. Crim. P. 25(b).

This court has previously held that included in a successor judge’s consideration of its ability
to act as thirteenth juror under Rule 25(b) is “an assessment of his or her ability to [assess]
witness credibility.” State v. Nail, 963 S.W.2d 761, 765 (Tenn. Crim. App. 1997) (citing
State v. Bilbrey, 858 S.W.2d 911, 914 (Tenn. Crim. App. 1993)). Thus, a successor judge
must “determine the extent to which witness credibility was a factor in the case and the extent
to which he had sufficient knowledge or records before him in order to decide whether the
credible evidence, as viewed by the judge, adequately supported the verdict.” State v. Brown,
53 S.W.3d 264, 275 (Tenn. Crim. App. 2000). If the successor judge is unable to make these
determinations, the judge cannot approve the verdict, and a new trial must be granted. Id.
(citing Nail, 963 S.W.2d at 766).

        As noted by the State, the transcript of the motion for new trial hearing is absent from
the record, rendering this court unable to determine whether the successor judge made any
findings relative to his ability to rule as thirteenth juror. The appellant has a duty to prepare
an adequate record on appeal. Tenn. R. App. P. 24(a). While the record fails to show the
trial court’s analysis, there is sufficient proof independent of observation of any witness
demeanor from which the trial court could have based its approval of the verdict, to wit: the
Defendant denied penetrating or ejaculating, yet the medical proof confirmed that the victim
suffered injuries consistent with forcible penetration, and the Defendant’s sperm was found
on the victim’s chest and face; and the Defendant admitted that he gave the arresting officer
a false name at his arrest. Under these circumstances, we conclude that the successor judge
determined that he was able to approve the verdict as was further indicated by his denial of
the motion for new trial. Accordingly, the Defendant is not entitled to relief concerning this
issue.




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                                      CONCLUSION

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

                                                    ___________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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