        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned On Briefs November 20, 2013

             STATE OF TENNESSEE v. TEDDY R. ROBBINS, JR.

                     Appeal from the Criminal Court for Scott County
                          No. 9239 E. Shayne Sexton, Judge



                  No. E2013-00527-CCA-R3-CD - Filed February 10, 2014


Appellant, Teddy Russell Robbins, Jr., was indicted by the Scott County Grand Jury for
domestic assault, aggravated assault, especially aggravated kidnapping, and aggravated rape
based on acts committed against his wife. After a jury trial, Appellant was convicted of all
the offenses as charged in the indictment. As a result, he was sentenced to an effective
sentence of fifty years in incarceration. After the denial of a motion for new trial, Appellant
filed a timely notice of appeal. On appeal, Appellant argues: (1) the evidence was
insufficient to sustain the convictions for especially aggravated kidnapping and rape; and (2)
the trial court erred by refusing to grant a mistrial. After our review, we determine that the
evidence was sufficient to support the convictions, and the trial court did not abuse its
discretion in denying a mistrial where the juror in question was dismissed from the jury pool
and the trial court issued a curative instruction. Accordingly, the judgments of the trial court
are affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT. J R.,
and D. K ELLY T HOMAS, J R., JJ., joined.

Clarence E. Pridemore, Jr., Knoxville, Tennessee, for the appellant, Teddy R. Robbins, Jr..

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William P. Phillips, District Attorney General; and Thomas E. Bartlay, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                   OPINION

                                             Factual Background


       In the early morning hours of February 22, 2009, A.R.,1 the victim, used a hidden cell
phone to call the police from her home on Howard Jeffers Lane in Scott County, Tennessee.
The victim and Appellant were married and lived at the home with their two children. When
police arrived at the scene, they found the victim. She was bleeding, her hair was falling out,
and she had bruises on her torso and on her ribcage. The victim refused medical attention
and informed the officers that responded to the scene that Appellant “made [her] do things
[she] didn’t want to do.”

       The victim initially denied that a sexual assault had occured. However, two days after
the ordeal, she informed Officer Roger Douglas of the Scott County Sheriff’s Department
that she had been raped.

      As a result of the statements made by the victim, Appellant was indicted by the Scott
County Grand Jury with domestic assault, aggravated assault, especially aggravated
kidnapping, and aggravated rape.

       At trial, A.R. testified that she awoke on the morning of February 21, 2009, because
Appellant was cursing at her. Appellant beat her by kicking her and throwing her down to
the floor. The victim received knots on her head and bruises on her body.

       At one point, Appellant tried to take the victim and the children from the trailer. The
victim tried to escape by running away, but Appellant chased her down and caught her. He
forced her back into the trailer where he continued to beat her.

       Around 2:00 p.m., Appellant left the trailer. He informed the victim that if she tried
to leave while he was gone he would kill her parents. The victim was afraid to leave.

       A few hours later, Appellant returned with “some people.” The victim was unable to
identify the people who accompanied Appellant. Appellant argued with the victim. After
a time, he left the trailer, taking the people with him. When Appellant returned the second
time, he was “really mad.” Appellant claimed he saw a police officer outside, and he
continued to beat the victim.


       1
           It is the policy of this Court to identify victims of sexual crimes by their initials.

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       At some point, Appellant cut the victim with his knife, “poked” her with his knife, and
scraped the knife across her neck. The victim described the knife as a black pocket knife
inscribed with the word “Gerber.” When Appellant was using the knife to scare and cut the
victim he told her that he was going to kill her. The victim testified that Appellant used the
knife “off and on” during the ordeal. Appellant was drinking the entire time.

       Appellant followed the victim everywhere to prevent her escape, even following her
to the bathroom. One time in the bathroom, Appellant ordered the victim to take off her
clothes. When she refused to comply with his demands, Appellant ripped her clothes off and
informed her that they were going to have anal sex. Appellant told the victim he was “gonna
fuck [her] in the ass whether [she] liked it or not.” First, Appellant forced the victim to
perform oral sex. The victim’s teeth scraped Appellant’s penis, and he hit her. Appellant
applied baby oil to his penis and the victim’s behind before penetrating her anally. The
victim begged him to stop and tried to get away. Appellant moved the victim to the couch
and continued to penetrate her anally while holding a knife to her throat.

        The victim estimated that this portion of the ordeal lasted from about 7:00 p.m. on
February 21, 2009, to around 4:00 a.m. on February 22, 2009. Around 4:00 a.m., Appellant
fell asleep. The victim was able to use a hidden cell phone to call the police.

       During the trial, the assistant district attorney informed the trial court that the district
attorney was approached by a juror. The woman exchanged a greeting with the district
attorney and gave him a hug. The event took place outside court while the jury was on break
but prior to the conclusion of the case for the day. The trial court conducted a hearing on the
matter. At the hearing, the bailiff, Michael Wilson, testified. He stated:

               When I took the jury to the jury room from the courtroom, as we exited
       the courtroom, the lady - she looks like she’s in her seventies - she hollered at
       Judge [ ], said, “That’s one of my favorite persons.” And, which, you know,
       Judge [ ] was so far away, he just - he may have waved or something. I don’t
       think he even heard her. As we neared the jury room, General [ ] came in. She
       said, “There’s another of my favorite people.” And General [ ] didn’t hear
       what she said. And like I say, she just kind of walked past me and before I
       could stop her, General [ ] backed up next to the wall and she spoke to him,
       said, “Hi, [General]” and kind of hugged his neck and she turned and walked
       in the jury room.

Officer Wilson thought that it was a short exchange and did not occur within earshot of the
majority of the jury. The assistant district attorney stated that the district attorney had no
direct knowledge of the State’s case other than who was assigned to the case from his office.


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The trial court identified the juror in question. The juror testified that she did not exchange
any information with the district attorney other than a casual hello and made no mention of
the case. The juror was unable to recall if she relayed any of this information to other jurors.

       At the conclusion of the hearing, the trial court excused the juror and polled the
remaining jury members about their knowledge of or interaction with the event. None of the
remaining jurors discussed the conversation with the dismissed juror. The trial court
instructed the remaining members of the jury that they were to have no contact with anyone
involved in the case. The trial court renewed this admonishment at the conclusion of the
proof and instructed the jury to make its determination based solely on the evidence
presented in court and the law as instructed.

       Counsel for Appellant moved for a mistrial. The trial court denied the motion.

        At the conclusion of the proof, Appellant was convicted of the offenses as charged
in the indictment. Appellant was sentenced to twenty-five years for especially aggravated
kidnapping and twenty-five years for aggravated rape, to be served consecutively. As to the
remaining charges, Appellant was sentenced to five years for aggravated assault and eleven
months and twenty-nine days for domestic assault. The sentences for aggravated assault and
domestic assault were ordered to be served concurrently with the remaining sentences, for
a total effective sentence of fifty years.

       After the denial of a motion for new trial, Appellant filed this appeal.

                                           Analysis
                                  Sufficiency of the Evidence

        Initially, Appellant insists that the evidence is insufficient to support his convictions
for especially aggravated kidnapping and aggravated rape. Specifically, he argues that the
State failed to produce a weapon that was used during the kidnapping or rape and that there
was minimal evidence other than the testimony of the victim to show that the rape or
kidnapping actually occurred. The State disagrees.

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994) (citing State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992)). Thus,
although the accused is originally cloaked with a presumption of innocence, the jury verdict
of guilty removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639


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S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the
defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant
question the reviewing court must answer is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. See
Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord
the State “the strongest legitimate view of the evidence as well as all reasonable and
legitimate inferences that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As
such, this Court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App.
1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may
not substitute our own “inferences for those drawn by the trier of fact from circumstantial
evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning the credibility of
the witnesses and the weight and value to be given to evidence, as well as all factual issues
raised by such evidence, are resolved by the trier of fact and not the appellate courts. State
v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether
the conviction is 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)).

       Aggravated rape “is the unlawful sexual penetration of a victim by the defendant or
the defendant by a victim accompanied by . . . [f]orce or coercion . . . and the defendant is
armed with a weapon or any article used or fashioned in a manner to lead the victim
reasonably to believe it to be a weapon . . . [or][t]he defendant causes bodily injury to the
victim[.]” T.C.A. § 39-13-502. 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
defendant’s, or any other person’s body, but emission of semen is not required[.]” Id. § 39-
13-501(7). Coercion “means a threat, however communicated, to[ ] . . . commit any
offense[,]” and force “means compulsion by the use of physical power or violence.” Id. §
39-11-106(a)(3)(A), (a)(12). Bodily injury “includes a cut, abrasion, bruise, burn or
disfigurement, and physical pain or temporary illness or impairment of the function of a
bodily member, organ, or mental faculty[.]” Id. § 39-11-106(a)(2). Especially aggravated
kidnapping, as applicable to the case herein, is defined as the knowing and unlawful removal
or confinement of another “so as to interfere substantially with the other’s liberty” and
accomplished with a deadly weapon. T.C.A. §§ 39-13-302, -305.

        In the case herein, the testimony at trial from the victim was that Appellant confined
her to their home for several hours against her will by the use of a knife and by threatening
the lives of her parents. The victim was able to describe the knife to the jury and recounted
exactly how Appellant used the knife while he raped and beat her. The officers who
responded to the scene saw “poke” marks around the victim’s neckline, and the victim told


                                              -5-
the officers that Appellant threatened her with a knife. Although no knife was recovered
from the scene, Officer Sandra Tucker recalled recovering a knife from Appellant.
Additionally, the officers suspected that some type of sexual assault had occurred, although
the victim did not report the rape until a few days after the ordeal. We note that physical
evidence is not a prerequisite to a conviction. See, e.g., State v. Joseph William Wilson, No.
W2001-03007-CCA-R3-CD, 2003 WL 261939, at *6 (Tenn. Crim. App., at Jackson, Feb.
3, 2003), perm. app. denied (Tenn. May 27, 2003); State v. Antonio Kendrick, No.02-C-01-
9604-CR00121, 1997 WL 686266, at *2 (Tenn. Crim. App., at Jackson, Nov. 5, 1997), perm.
app. denied (Tenn. July 13, 1998). As previously stated, we will not disturb the jury’s
implicit credibility findings. Pruett, 788 S.W.2d at 561. The proof is sufficient for the jury
to conclude that Appellant was “armed with a weapon or . . . article used or fashioned in a
manner to lead the victim reasonably to believe it to be a weapon.” See T.C.A. § 39-13-
502(a)(1). Appellant also argues that no weapon was found. This contention, however, goes
to the victim’s credibility, which, as discussed above, we will not second guess. We also note
that there is no requirement in the statute that a defendant still be in possession of the weapon
used to commit the crime when he is apprehended or that the weapon be recovered. The
proof as accredited by the jury’s verdict, showed that Appellant accomplished the act while
armed with a knife used to intimidate the victim. Appellant is not entitled to relief with
respect to this issue.

                                            Mistrial

        Next, Appellant complains that the trial court erred by refusing to grant a mistrial
when one of the members of the jury had contact with the district attorney during a recess in
trial. Appellant argues that “it was never determined what [the juror] may or may not have
said or what comments she may or may not have made to the other jurors” despite the denial
by each individual member of the jury of having any conversation with the juror about her
interaction with the district attorney. In Appellant’s brief, he recounts the events that took
place, then makes the following argument on this issue: “Therefore, [Appellant] contends
that he was not tried before a fair and impartial jury.” He cites the United States and
Tennessee Constitutions to support his argument. The State insists that Appellant has failed
to show error or prejudice and does not demonstrate that a manifest necessity exists for a
mistrial.

        The purpose of a mistrial is to correct the damage done to the judicial process when
some event has occurred which would preclude an impartial verdict. See Arnold v. State, 563
S.W.2d 792, 794 (Tenn. Crim. App. 1977). The decision whether to grant a mistrial is within
the trial court’s discretion and will not be disturbed absent an abuse of that discretion. State
v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (citing State v. Hall, 667
S.W.2d 507, 510 (Tenn. Crim. App. 1983)). For this reason, an appellate court’s review


                                               -6-
should provide considerable deference to the trial court’s ruling in determining whether an
occurrence or event at trial has so prejudiced the defendant or the State as to preclude a fair
and impartial verdict. See State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

       In determining whether there is a “manifest necessity” for a mistrial, “‘no abstract
formula should be mechanically applied and all circumstances should be taken into
account.’” State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (quoting Jones v. State, 403
S.W.2d 750, 753 (Tenn. 1966)). Only when there is “no feasible alternative to halting the
proceedings” can a manifest necessity be shown. State v. Knight, 616 S.W.2d 593, 596
(Tenn. 1981).

        Recently, in State v. William Darelle Smith, No. M2010-01384-SC-R11-CD, ___
S.W.3d ___, 2013 WL 4804845, at *5 (Tenn. Sept. 10, 2013), our supreme court discussed
the proper steps for a trial court to take when extra-judicial communication occurs between
a juror and a third-party. The court stated:

               When a trial court learns that an extra-judicial communication between
       a juror and a third-party has occurred, the court must take steps to assure that
       the juror has not been exposed to extraneous information or has not been
       improperly influenced. In most circumstances, the appropriate first step is to
       conduct a hearing in open court in the presence of the defendant to place the
       facts in the record and to determine on the record whether cause exists to find
       that the juror should be disqualified. Whitmore v. Ball, 77 Tenn. 35, 37
       (1882); Smith v. State, 566 S.W.2d 553, 559-60 (Tenn. Crim. App. 1978). [ ]
       As the Court of Appeals has noted, when misconduct involving a juror is
       brought to a trial court’s attention, “it [is] well within [the judge’s] power and
       authority to launch a full scale investigation by summoning . . . all the affiants
       and other members of the jury, if need be, with a view of getting to the bottom
       of the matter, and this, if necessary, upon [the judge’s] own motion.” Shew v.
       Bailey, 260 S.W.2d at 368.

               Because of the potentially prejudicial effect of a juror’s receipt of
       extraneous information, the State bears the burden in criminal cases either to
       explain the conduct of the juror or the third party or to demonstrate how the
       conduct was harmless. Error is harmless when “it appears beyond a reasonable
       doubt that the error complained of did not contribute to the verdict obtained.”
       State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010) (quoting Neder v. United
       States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L. Ed. 2d 35 (1999)).




                                              -7-
               When a jury is not sequestered, something more than a showing of an
       extra-judicial communication between a juror and a third party is required to
       shift the burden to the State. There must also be evidence that, as a result of
       the extra-judicial communication, some extraneous prejudicial fact or opinion
       “was imported to one or more jurors or some outside improper influence was
       brought to bear on one or more jurors.” State v. Blackwell, 664 S.W.2d at 689;
       see also State v. Meade, 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996)
       (quoting State v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App. 1988)).
       Thus, when it is shown that a juror has been exposed to extraneous prejudicial
       information or an improper influence, a rebuttable presumption arises and the
       burden shifts to the State to explain the conduct or demonstrate that it was
       harmless. State v. Adams, 405 S.W.3d [641, 651 (Tenn. 2013)]; Walsh v.
       State, 166 S.W.3d 641, 647 (Tenn. 2005).

Smith, ___ S.W.3d at ___, 2013 WL 4804845, at *5.

        In the case herein, the trial court inquired whether extra-judicial communication
occurred between the district attorney and the juror. The juror testified during a hearing to
the trial court that she gave the district attorney a hug because he was her “cousin.” The juror
denied sharing this experience with any of the other jurors on the panel. The trial court went
on to poll each individual member of the jury separately in order to ascertain whether the
juror in question had discussed her interaction with the district attorney. All of the jurors
denied knowledge of the event. The trial court dismissed the offending juror and
admonished the remaining jurors about their task to determine the proof based on the facts
presented during trial and the law as charged by the court. The trial court did not find the
communication to be prejudicial. In fact, the trial court found the communication harmless.
We agree. Appellant has not shown prejudice or bias in the remaining jury and is, therefore,
not entitled to relief on this issue.

                                          Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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