           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                             Assigned on Briefs October 7, 2008

             STATE OF TENNESSEE v. CHRISTOPHER M. BLACK

              Direct Appeal from the Criminal Court for Davidson County
                      No. 2004-A-246    Monte D. Watkins, Judge


                 No. M2007-00970-CCA-R3-CD - Filed February 26, 2010


Defendant-Appellant, Christopher M. Black, was convicted by a Davidson County Jury of
two counts of aggravated rape, a Class A felony, and two counts of aggravated robbery, a
Class B felony. For each aggravated rape conviction, Black received a twenty-year sentence
to be served consecutively to one another. For each aggravated robbery conviction, Black
received a ten-year sentence to be served concurrently with one another. The trial court
ordered the aggravated rape sentences to be served consecutively to the aggravated robbery
sentences, for an effective sentence of fifty years.1 On appeal, Black argues that (1) the
evidence was insufficient to support his convictions; (2) the prosecution failed to establish
a legitimate chain of custody for the evidence swabs collected from the crime scene; (3) it
was constitutionally improper to allow a witness, Dwight Brewer, to identify Black at trial;
(4) it was improper to admit proof of the original “CODIS hit” without establishing a chain
of custody; and (5) the imposition of consecutive sentencing was improper. We affirm
Black’s convictions but remand for a resentencing hearing regarding Black’s sentencing
status with respect the 2005 sentencing act and regarding the issue of consecutive sentencing.

  Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                        and Remanded for Resentencing

C AMILLE R. M CM ULLEN, 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.

Richard Tennent, Nashville, Tennessee, for the Defendant-Appellant, Christopher M. Black.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth Bingham Marney, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; Deborah Housel and
Roger Moore, Assistant District Attorneys General, for the Appellee, State of Tennessee.
                                         OPINION


       1
         On May 3, 2007, the trial court entered a corrected judgment to reflect that the defendant is to
receive community supervision for life.
       Trial. This case stems from a brutal attack upon a female victim, L.P., and a male
victim, D.B., beginning in the late hours of February 12, 1999, and ending in the early
morning hours of February 13, 1999. The victims had been friends for several years.
Around 11:30 p.m. on the night of the offense, the female victim drove to the male victim’s
parent’s home where the male victim lived to borrow a movie. She pulled her vehicle in
front of his home and paged him to come outside. The male victim came outside, gave her
the movie, and sat inside her vehicle to talk. About fifteen minutes later, the male victim was
getting out of the vehicle when he and the victim saw two men with hoods coming through
his yard.

        The female victim stated that the two men came around from behind her vehicle, over
to the driver’s side, and knocked on the window. Neither victim knew the two men. The
female victim cracked the window, and a revolver was stuck in the window to her temple.
The men screamed at the female victim, “Get out of the car, bitch. Get out of the car bitch.”
The vehicle was still running, and she unlocked the door and opened it. The female victim
said that a chrome revolver was put to her head. She stated, “[I]t looked like it had a pearl,
or like, an engraved handle. Looked more like a collector’s gun.”

       When the female victim began to get out of the vehicle, the men pushed her back
inside. At this point, she stated that she was in the front seat of her vehicle. The male victim
had gotten out of the vehicle and was on the ground. The men went through the vehicle and
told the victim they wanted her wallet and money. She told them that she only had ten
dollars, and they yelled at her for not having more money. The men looked through the trunk
twice and took the female victim’s credit cards.

         The female victim differentiated between the two men by their skin tone. After the
men asked for the female victim’s money, the female victim stated that the man with the dark
complexion demanded that she perform oral sex on him. She testified that he said,
“‘[Y]ou’re going to suck my d***.’” She said that she complied because she had a gun to
her head and was terrified. She stated, “It started in the street. He made me get on my knees
in the street and perform oral sex. And they both switched back and forth between four to
six times.” Both men forced her to perform oral sex against her will and consent by
threatening her with a weapon.

        The female victim testified that after the men forced her to perform fellatio on them,
the man with the lighter complexion said, “‘I want to f*** this b****.’ And they made [her]
pull down [her] pants and bend over in the street. And they took turns raping [her] from
behind.” When one man was raping her, the other was watching for oncoming cars. After
being vaginally raped, the female victim was forced back inside the car to perform oral sex.
Initially, the female victim could not recall if either man ejaculated. However, she later
stated that, at some point, one of the men ejaculated in her mouth. She could not recall where


                                              -2-
she was physically positioned but she gagged, and spit the ejaculate outside the vehicle on
the pavement of the street.

       The female victim recalled that the male victim begged the men to stop. The men
began to leave, but came back. They ordered the male victim to run down the street while
they held the female victim by her hair at gunpoint. The men then pushed the female victim,
and told her to run and not to look back. The female victim found the male victim, and they
ran down the street knocking on doors until someone gave them a phone to call 911. The
male victim’s father came to pick them up and later took them to the crime scene to wait on
the police. When the female victim returned to the scene, her vehicle was still there with the
four doors open.

        At trial, the female victim identified photographs from the crime scene. She
specifically identified a photograph of the ejaculate that she spit out onto the pavement. It
was admitted into evidence as collective exhibit 1G. She recalled that the police officers
marked exhibit 1G as significant. She described both men as in their early twenties. She
also estimated that the attack lasted around thirty to forty-five minutes. She stated that the
men were dressed alike. They wore masks, black jeans and sweatshirts, but one man had on
a red shirt and the other a blue shirt. The man with the blue shirt had a dark complexion and
the man with the red shirt had a light complexion.

       The female victim was not missing any of her credit cards, but the men took her ten
dollars. She told the police what happened and was given a gynecological examination that
night. The police obtained internal vaginal swabs and swabs of her mouth. A black light
was placed over her naked body to determine the existence of any pubic hairs or semen. The
police also took the female victim’s clothes. The female victim stated that she did not
discuss what she was going to tell the police with the male victim.

       The female victim recalled that, at some point, the two men took their masks off.
However, she could only remember seeing the lighter complected man’s face. She and the
male victim provided the police with a sketch; however, she had no input in the sketch
developed by male victim. She stated that she did not remember anything about the man
with the dark complexion.

       On cross-examination, the female victim acknowledged that she had trouble
remembering the sequence of events; specifically, whether she was forced to perform oral
sex or was vaginally raped first. In regard to the events leading up to the man’s ejaculating
in her mouth, she said she could not remember whether both men or only one man forced her
to perform oral sex. She further conceded that she was unsure if the man with the lighter
complexion ejaculated in her mouth. She also admitted that she had previously misidentified
a busboy that she saw at a restaurant from a photographic lineup as the man with the lighter
complexion. This photographic lineup was admitted into evidence as exhibit 8.

                                             -3-
        The female victim explained that the attack occurred in a residential neighborhood and
that the area was illuminated by the headlights on her vehicle and by various streetlights.
She recalled that the inside of the vehicle was illuminated from the dash board. She
explained that the men wore masks when they pistol-whipped Brewer but took them off
during the rape. She had no memory of either man wearing gloves but stated that both men
held her credit cards in their hands.

       The male victim testified and corroborated the female victim’s testimony. He
explained that when he went outside to meet her that night, everyone else inside his house
was asleep. He stated that the men took his coat, which contained his wallet and $350. He
also had a “stereo face” inside his coat pocket. The two men also took his earrings, skull cap,
and tennis shoes. He noticed that the men had a silver weapon, and he saw one of the men
forcing the victim to perform oral sex on him.

        The male victim also distinguished the men by skin tone and said that the man with
the dark complexion had the gun. He saw the darker complected man, whom he later
identified as Black, forcing the victim to perform oral sex on him. The male victim
confirmed that the man with the dark complexion also hit him in the back of the head with
the gun. He went to the hospital and received nine stitches to the head and had a scar as a
result. He provided a statement to the police and worked on a sketch that same day. The
male victim said that he worked on the sketch which was admitted into evidence as exhibit
2-A. When the sketches in this case were developed, the male victim and the female victim
were not in the same room.

        The male victim identified Black as the person he saw forcing the female victim to
perform oral sex on him from a photographic lineup, which was admitted into evidence as
exhibit 4. The male victim testified that it was “the eyes” that stood out to him. He said that
the man was younger than he, 5'10" tall and 130 pounds. He admitted that he had previously
been confused about whether Black wore a red shirt or a blue shirt but said he was certain
of his identification.

        On cross-examination, the male victim stated that his credit card was used at a gas
station and two other stores within thirty minutes of the offense. He conceded that in two
prior photographic lineups, he identified another individual as someone who “looked like”
the dark complected man. He clarified that in each of those lineups, he told Detective
Sutherland that he “wasn’t one hundred percent sure” or was “not positive” of the
identification. Four years after the initial photographic lineups, the male victim was brought
in to view another photographic lineup. Detective Sutherland told him he had a possible
suspect and that there was a DNA match. The male victim testified that when he identified
Black from the photographic lineup, Detective Sutherland told him that he had chosen the
person confirmed by DNA analysis.


                                              -4-
       The male victim’s sister testified that she was at home on the night of the offense. She
heard noises outside and heard someone say “Make those ‘hos run.” She woke her father,
went outside, and noticed the female victim’s vehicle in front with the doors open and things
on top of the roof. There was no one around at the time. She called the non-emergency
number, and she and her father closed the doors to the vehicle. She later received a call from
a neighbor indicating the female victim and her brother were there and had been hurt. She
went inside to upgrade her previous non-emergency call to a 911 call.

        Michael Evans, a ten-year veteran with the Metro-Nashville Police Department, was
one of the first officers to respond to the scene on the night of the offense. He secured the
crime scene, blocked one of the side roads, and called the “ID division” because it was a
major crime. He received a description of the suspects from the male victim and put out a
“BOLO” or “be on the look-out” announcement containing the male victim’s description of
the two men involved in the offense. He was told that one of the men had on blue jeans, not
black jeans. He was also told that one of the men had on a red pullover sweater, not a red
t-shirt and a black pullover sweater. He was further told that the other man wore a blue
pullover sweater and blue jeans.

        Johnny Lawrence, an officer with the Technical Investigation Division (TID) of the
Metro-Nashville Police Department, testified that he responded to the crime scene on the
night of the offense. He did not completely examine the vehicle at the scene that night.
However, he took the vehicle to another location to be processed. All of the items at the
scene were collected by Officer Lawrence. He stated that he collected evidence of bodily
fluid off the roadway, which was located near the center of the street on the driver’s side of
the vehicle, and was visible to the naked eye. Officer Lawrence photographed the substance
and obtained samples of the evidence. At trial, he explained his efforts to collect this
evidence:

       I attempted to pick some of it up with what we call a filter paper. We use that
       to do rugs with, mainly with blood. I also use them to collect hair samples and
       items. But I tried to rub the stain to try to pick it up, because it was such a
       broad area, but I tore the paper doing that. So, then, I used cotton swabs with
       distilled water, so I could pick it up and get a better collection of it.

        Officer Lawrence identified an evidence bag with the number 9972874 as the original
bag in which he placed the evidence swabs collected from the crime scene. He stated that
the bag also contained filter paper and swabs. He observed that other people had placed their
initials on the bag, which indicated that the contents had been processed or examined. He
turned the evidence bag over to the “refrigeration” unit, specifically Brad Johns, a detective
in the homicide unit. He had no further contact with the evidence. The bag was admitted
into evidence as part of collective exhibit 11.


                                              -5-
        Officer Lawrence acknowledged on cross-examination that although he normally puts
his initials on evidence bags, this bag did not contain his initials. He confirmed that the
handwriting on the bag was his. He further stated that he wrote the complaint number, date,
time, location, and a description of the evidence swabs on the evidence bag. On re-cross
examination, he stated he may have forgotten to put his initials on the bag but affirmed that
he turned the evidence over to Detective Johns. The state admitted exhibit 15, entitled
“Supplemental Report,” in support of Officer Lawrence’s testimony. Exhibit 15 was a typed
report containing the victim’s name, the date of the instant offense, and complaint number
9972874. Exhibit 15, which was signed by Detective Brad Johns, stated the following:

       At approximately 0220hrs on February 13, 1999, ID Officer Lawrence gave
       me a bag containing swabs that he took from the street near [the offense
       location]. These swabs were put in the drying box by myself, and an evidence
       tracking form was started on these items.

       At the time of the offense, Detective Brad Johns was assigned to the homicide unit.
He testified and confirmed that he obtained the bag of evidence from Officer Lawrence from
the crime scene in the instant case. He said that he stood in front of Officer Lawrence and
watched him fill out the time the evidence was collected, the contents of the bag, and the
complaint number. Detective Johns opened the evidence bag and saw that it contained three
swabs and one cloth. He carried that bag of evidence to the property room and placed it in
the drying cabinet for storage. He filled out exhibit 14, an evidence tracking form which
showed the chain of custody, and exhibit 15, the supplemental report of the evidence. He
verified that he locked the storage cabinet and gave the key to Detective Steve Cleek that
morning.

       Steve Cleek was a detective in the homicide unit at the time of the offense. He did
not go to the crime scene but became involved in the chain of custody. Detective Cleek said
that Detective Brad Johns had a rape kit, put it in an air-drying box, and gave him the key to
the box because Detective Johns was not working the next two days. Detective Johns gave
Detective Cleek the key to the box to give to the detectives in the sex crimes unit. Detective
Cleek testified that he gave the key to Detective Sutherland. Exhibits 20A and 20B, reports
by Detective Cleek, were admitted into evidence in support of his testimony.

        Phillip Sage, a sergeant with the Metro-Nashville Police Department property room,
testified that only police officers and employees have access to evidence kept in the property
room warehouse. He described a sheet of paper which documented the police department
custody of the evidence in this case. The sheet was admitted into evidence as exhibit 19.
Exhibit 19 showed that on April 15, 1999, Mary Wilhoite and Mike Nichols took the rape
kit from the property room to the Tennessee Bureau of Investigation (TBI) crime lab. On
August 17, 1999, Detective Sutherland returned the evidence to the property room from the
crime lab.

                                             -6-
        Sandy Myers, a nurse practitioner at the Nashville General Hospital, testified
regarding the medical legal exam (MLE) performed on the female victim. Myers stated that
she had previously conducted over 500 MLE’s and was tendered as an expert in the field of
medical legal examination. Myers also testified as the records custodian for the hospital and
explained the female victim’s rape report. The report showed the areas of contact as the
mouth, the vulva, and the vaginal area. It corroborated that the perpetrator ejaculated on the
street and was consistent with the female victim’s being sexually penetrated. The report
further indicated that the perpetrator did not wear a condom, and swabs from the rape kit
tested negative for sperm. The report was admitted into evidence as exhibit 16, and the rape
kit was admitted into evidence as exhibit 17.

       Myers stated that the kit was not retrieved by the police that night. She explained that
in such cases, the kit is locked in a cabinet specified for MLE’s. She then verified that
exhibit 16 showed that the kit was locked in the cabinet at 4:01 a.m. on the night of offense
and released at 8:00 p.m. the same day to Detective Sutherland. Based on exhibit 18, another
hospital report, Myers stated that Black was brought to the hospital on September 22, 2003,
to have his blood drawn. Exhibit 18 showed all of Black’s identifying information including
his name, date of birth, and social security number.

        Detective Keith Sutherland was assigned to this investigation; however, he did not go
to the crime scene or collect any evidence. He relayed the BOLO’s, took written statements
from the victims, scheduled the sketch with the victims, and arranged for a time for the
victims to review composites. Detective Sutherland testified that Officer Lawrence had
collected certain evidence which was secured in a drying box in the property room.
Detective Cleek gave him the key which contained the swabs that were taken from the crime
scene. He stated that he went to the hospital to retrieve the rape kit on February 15, 1999.
The kit was sealed, and Detective Sutherland did not observe anything unusual about it.
Detective Sutherland confirmed that it was his signature on exhibit 16, the hospital report,
showing that he obtained the rape kit. On February 18, 1999, Detective Sutherland took the
rape kit and placed it in the property room inside the drying cabinet, with the exception of
the blood sample which he placed in the refrigerator. Detective Sutherland stated that he did
not add anything to the rape kit or the bags containing the swabs recovered from the scene.
He later took the evidence from the property room to the crime lab. Detective Sutherland
conceded that he mistakenly wrote victim/MLE instead of subject/MLE on the TBI request
to examine blood from another suspect. He also explained the fingerprint analysis did not
result in a match with Black.

       Detective Sutherland stated that he entered the female victims’ description of the
perpetrators in the computer in order to develop the photographic lineup. As a result, the
computer generated a pool of people. Detective Sutherland additionally explained that unlike
the computer generated photographs, he had to get a photograph of the busboy that the
female victim initially believed was involved in the offense from the Department of

                                              -7-
Transportation. He confirmed that the female victim initially identified the busboy as the
perpetrator. Other than a telephonic interview wherein the busboy denied involvement in the
offense, Detective Sutherland did not do any further investigation regarding the busboy.
Detective Sutherland also stated that he did not investigate the charges on the male victim’s
credit card because he believed that any surveillance tapes that existed at the time of the
offense had already been taped over due to the passage of time.

        Detective Sutherland received exhibit 22, a serology report dated July 19, 1999, from
Agent Minor stating that sperm and semen were present on the evidence swabs taken from
the crime scene. Exhibit 22 provided that DNA analysis could be performed upon receipt
of a subject blood standard and a request from the district attorney general. On December
27, 2002, Detective Sutherland filled out a re-submittal form requesting Agent Minor to
compare another suspect’s DNA with the DNA located at the crime scene and to enter the
results into the Combined DNA Index System (“CODIS”).2 Detective Sutherland said that
he physically checked exhibit 11 out of the property room and took it to the TBI crime lab.
He stated that he did not manipulate the evidence in any way.

       Exhibit 36, another serology report, was dated August 20, 2003. Based on exhibit 36,
the suspect’s blood that Detective Sutherland sent for analysis did not match the DNA
recovered from the crime scene. However, Detective Sutherland received Black’s name from
Agent Minor as a potential match from the CODIS database. Detective Sutherland
subsequently obtained a search warrant for a sample of Black’s blood. He also observed the
blood sample being drawn from Black and physically took the blood sample to the TBI.
Exhibit 29 was admitted into evidence and was described as a box containing vials of Black’s
blood. After receiving confirmation that Black’s blood sample matched the DNA from the
semen located at the crime scene, Detective Sutherland obtained a warrant for Black’s arrest.


       Following the DNA confirmation, Detective Sutherland set up a photographic lineup
with the male victim. He did not tell the male victim anything prior to the viewing.
Specifically, Detective Sutherland informed the male victim that he wanted to set up another
photographic lineup “due to a CODIS hit – I don’t know that I went in to detail.” Detective
Sutherland said that the male victim picked Black “almost immediately” from the
photographic lineup.

       Detective Sutherland acknowledged that a second vehicle in Brewer’s driveway had
been touched by the perpetrator, but no fingerprint analysis had been performed. He also
confirmed that none of the fingerprints lifted from the scene belonged to Black. Detective
Sutherland further conceded that in the photographic lineup containing Black, the

        2
          CODIS is a local, state, and national database of DNA profiles collected from crime scene evidence
as well as convicted offenders.

                                                    -8-
background of Black’s photograph was blue while the background of the other photographs
was brown. He also admitted that there was no documentation of the location of the rape kit
between February 18 and February 23. He stated that “[t]he custody of this would have been,
either, one, locked in my office; or , two, locked in . . . the drying box, along with the large
bag of clothing we just discussed.” Detective Sutherland said that he did not break the rape
kit down, but he did take the blood sample out and place it in the refrigerated cabinet. He
conceded that this action was not documented.

        Joe Minor, a forensic scientist for twenty-three years and a special agent with the TBI
crime laboratory, testified that he was the Nashville DNA supervisor. He was originally
provided with evidence from the crime scene in the instant case in April 1999. The items
submitted to the crime lab included a vial of the female victim’s blood, saliva and vaginal
swabs, and a brown bag containing three evidence swabs. All of the items were brought into
the lab on April 15, 1999, by Mary Wilhoite. He also received the evidence from the MLE
on the victim. He examined (1) the vaginal swabs, (2) the oral swabs, (3) the evidence
swabs, and (4) the TBI bloodstain card containing the victim’s blood sample. He retrieved
the MLE kit from the evidence vault, recorded the time, and took it back to his work area.
He then broke the seal from the Metro Police Department to perform his examination. His
file noted that he received the kit “sealed with blue evidence tape.”

        In Agent Minor’s first report, there was no exam performed on the female victim’s
DNA. He explained that TBI’s policy at that time was not to perform an exam when there
was no suspect blood standard unless there was a request from the district attorney.
Regarding the vaginal swabs, Agent Minor observed the presence of both sperm and semen.
No sperm was present on the oral swabs. However, the swabs containing the bodily fluid
collected from the street tested positive for sperm, and Agent Minor took additional cuttings
for later DNA comparison and testing. Agent Minor placed the evidence back in the box, and
sealed it with tamper proof tape.

        When he received the re-submittal form, Agent Minor performed DNA analysis from
the semen on the evidence swab against the requested suspect. The comparison was not
consistent with the DNA from the semen recovered from the crime scene; however, it did
show an unknown male profile which enabled Agent Minor to run that profile in the CODIS
database. As a result of the unknown male profile, Agent Minor received a “CODIS hit” on
the defendant, Christopher Black. Agent Minor stated that when the box containing the rape
kit was returned to him, it was sealed with his original TBI tape. Agent Minor broke the seal
to get into the box, and took the evidence swabs out. He obtained a complete profile from the
evidence swabs.

       Agent Minor explained that exhibit 26 was the re-submittal form for the female
victim’s rape kit. The evidence from the kit that was tested in 1999 was re-submitted in 2002.


                                               -9-
He further stated that exhibit 35 was a copy of the report with his additions to it. Agent Minor
stated:

       So, the first time . . . that I got [the rape kit] in 1999 it had been sealed. When
       I received it for DNA analysis I broke my own seals, took the evidence out, set
       it up for DNA analysis. And then at the conclusion resealed it with the
       evidence tape. . . . So, it was initially sealed. It came in sealed. I returned it
       sealed, and taped again.

Agent Minor then provided detailed testimony on his search of the DNA database called
CODIS that contained DNA profiles.

        Agent Minor stated that although he received a CODIS “hit” on Black, he needed an
actual blood sample from Black to confirm the CODIS hit. He received a blood sample from
Black on September 23, 2003. Agent Minor stated that he developed a profile based on
Black’s blood sample and that Black’s profile “matched” the evidence swab collected from
the rape kit containing the semen. Agent Minor testified that the word “match” meant that
the numbers that are the actual allele types in the DNA profile. He explained that “for those
thirteen locations, every one of those numbers are the same.” He further stated that the
probability that it was not a match in the Caucasian population is one in sextillion, and in the
African American population it was one in thirty-nine sextillion. He testified that the
probability that it could be someone other than Black exceeded the world’s population by “at
least a million times over[.]” In conclusion, Agent Minor opined that there was no one else
on earth who would have the same profile.

        On cross-examination, Agent Minor acknowledged a typographical error in the report
as to the date the evidence was received.

        I. Sufficiency of the Evidence. Black argues the evidence was insufficient to support
his convictions. Specifically, he claims that no rational juror could accredit the male victim’s
identification or trust that Detective Sutherland properly preserved the evidence swabs. The
State contends the direct evidence was more than sufficient to warrant the jury’s guilty
verdict.

        We resolve this issue by recognizing the well-settled rule that the State, on appeal, is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn from that evidence. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). When
a defendant challenges the sufficiency of the evidence, this Court must consider “whether,
after reviewing 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, 442 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e)
of the Tennessee Rules of Appellate Procedure states, “Findings of guilt in criminal actions

                                              -10-
whether by the trial court or jury shall be set aside if the evidence is insufficient to support a
finding by the trier of fact of guilt beyond a reasonable doubt.” Guilt may be found beyond
a reasonable doubt in a case where there is direct evidence, circumstantial evidence, or a
combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)
(citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895,
897 (Tenn. 1961)). The trier of fact must evaluate the credibility of the witnesses, determine
the weight given to witnesses’ testimony, and must reconcile all conflicts in the evidence.
State v. Odom, 923 S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the
sufficiency of the evidence, this Court shall not “reweigh or reevaluate the evidence.” State
v. Philpott, 882 S.W.2d 394, 398 (Tenn. Crim. App. 1994) (citing State v. Cabbage, 571
S.W.2d 832, 836 (Tenn. 1978), superseded by statute on other grounds as stated in State v.
Barone, 852 S.W.2d 216, 218 (Tenn. 1993)). This court has often stated that “[a] guilty
verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d
at 659 (citation omitted). A guilty verdict also “removes the presumption of innocence and
replaces it with a presumption of guilt, and the defendant has the burden of illustrating why
the evidence is insufficient to support the jury’s verdict.” Id. (citing Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982)).

       As pertinent to this case, section 39-13-502 provides:

       (a) Aggravated rape is unlawful sexual penetration of a victim by the defendant
       or the defendant by a victim accompanied by any of the following
       circumstances:

       (1) Force or coercion is used to accomplish the act 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;

T.C.A. § 39-13-502; see also State v. Dominy, 6 S.W.3d 472, 479 (Tenn. 1999).

        Additionally, to convict Black of aggravated robbery, the State was required to prove
that he used a deadly weapon to commit an “intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” T.C.A § 39-13-401, -402.

          Black does not dispute that the crimes charged in this case occurred. He challenges
the sufficiency of the convicting evidence by attacking the credibility of two witnesses, D.B.,
the male victim, and Detective Sutherland. The male victim was extensively cross-examined
at trial regarding the photographic lineup procedure and his identification of Black as one of
the perpetrators of the crimes. Based on the record, the male victim did not identify with
certainty either person in the two prior photographic lineups because he “wasn’t one hundred
percent sure” or was “not positive” about those identifications. However, he identified Black

                                              -11-
“immediately” in the photographic lineup. When asked whether he was sure of his
identification of Black as the perpetrator in the last photographic lineup, D.B. replied, “Yes.”
Detective Sutherland was also extensively cross-examined on how he handled the evidence
swabs which ultimately connected Black to the crimes through DNA analysis. Detective
Sutherland stated that he did not tamper with or alter the evidence in this case. In addition,
there was substantial testimony in support of the chain of custody in this case. Each of the
arguments Black offers in support of this issue was presented to and rejected by the jury. As
previously stated above, it is for the jury, not this court, to decide what weight to give to the
evidence and to determine the credibility of the witnesses. Moreover, the DNA analysis in
this case established that the probability that the perpetrator was someone other than Black
exceeded the world’s population by “at least a million times over[.]” Based on all the
evidence, we conclude that a rational trier of fact could have found that Black was the
perpetrator of the crime. Black is not entitled to relief on this issue.

        II. Chain of Custody. Black argues that the prosecution failed to establish the chain
of custody for the evidence swabs containing the sperm collected from the crime scene that
led to the DNA match. In response, the State contends the trial court correctly ruled that the
State had established a sufficient chain of custody for this evidence.

        In order to admit physical evidence, the party offering the evidence must either
introduce a witness who is able to identify the evidence or must establish an unbroken chain
of custody. State v. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App. 1998) (citing State
v. Goodman, 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982)). Whether the required chain of
custody has been sufficiently established to justify the admission of evidence is a matter
committed to the sound discretion of the trial court, “and the court’s determination will not
be disturbed in the absence of a clearly mistaken exercise of such discretion.” Id. at 701
(citing State v. Beech, 744 S.W.2d 585, 587 (Tenn. Crim. App. 1987)). On appeal, challenges
to the integrity of the chain of custody of evidence are reviewed for an abuse of discretion.
State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008) (citing State v. Scott, 33 S.W.3d 746, 752
(Tenn. 2000); Beech, 744 S.W.2d at 587. Under this standard, we will not reverse unless the
“‘court applied an incorrect legal standard, or reached a decision which is against logic or
reasoning that caused an injustice to the party complaining.’” State v. Shirley, 6 S.W.3d 243,
247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

       Rule 901(a) requires that evidence be authenticated or identified as a condition
precedent to its admissibility. Tenn. R. Evid. 901(a). This court has previously held that for
tangible evidence, “a witness must be able to identify the evidence or establish an unbroken
chain of custody.” State v. Kilpatrick, 52 S.W.3d 81, 87 (Tenn. Crim. App. 2000) (citing
Goodman, 643 S.W.2d at 381). The purpose of this requirement is to “demonstrate that there
has been no tampering, loss, substitution, or mistake with respect to the evidence.” State v.
Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993) (citing Orr v. State, 472 N.E.2d 627,
630 (Ind. App. 1984)). Absolute certainty of identification is not required, however. See

                                              -12-
Kilpatrick, 52 S.W.3d at 87 (citing Ritter v. State, 462 S.W.2d 247, 250 (Tenn. Crim. App.
1970). “Reasonable assurance, rather than absolute assurance, is the prerequisite for
admission.” Id.

       In addition, the Tennessee Supreme Court has observed:

       Even though each link in the chain of custody should be sufficiently
       established, this rule does not require that the identity of tangible evidence be
       proven beyond all possibility of doubt; nor should the State be required to
       establish facts which exclude every possibility of tampering. An item is not
       necessarily precluded from admission as evidence if the State fails to call all of
       the witnesses who handled the item. Accordingly, when the facts and
       circumstances that surround tangible evidence reasonably establish the identity
       and integrity of the evidence, the trial court should admit the item into
       evidence. On the other hand, if the State fails to offer sufficient proof of the
       chain of custody, the evidence should not be admitted . . . unless both identity
       and integrity can be demonstrated by other appropriate means.

Cannon, 254 S.W.3d at 295-96 (internal citations and quotation omitted).

       Black argues that the trial court abused its discretion in admitting the evidence swabs
containing his DNA. He argues the chain of custody was not sufficiently established because
(1) Officer Lawrence testified on cross-examination that he individually packaged each
evidence swab in a paper sack and that he normally would have placed his initials on the bag;
(2) the State failed to introduce documents pertaining to the swabs; namely, the “sheet of
paper” that showed the evidence swabs had been received by the property room; and (3) there
was no documentation of (a) when the swabs were added to the MLE rape kit, (b) where the
swabs were located between removal from the drying cabinet and placement into the MLE
rape kit, or (c) where the evidence swabs were located for the twenty-four hour period
between the time that Detective Sutherland retrieved them from the property room and the
time that he delivered them to the TBI laboratory for re-examination. In response, the State
contends the trial court did not abuse its discretion in finding that the State had sufficiently
established the chain of custody and in admitting the evidence swabs. We agree with the
State.

       The record reflects that Officer Lawrence collected all of the evidence, including the
swabs from the crime scene. He identified “the original bag” in which he placed the evidence
swabs. When he identified the bag, it had been processed or examined by other people. He
stated that Exhibit 11, the bag containing the evidence swabs, was placed into the
“refrigeration unit” and later turned over to Detective Brad Johns. Detective Johns stated that
he obtained a bag of evidence from Officer Lawrence from the crime scene. He carried that
bag of evidence to the property room and observed Officer Lawrence place the time the

                                              -13-
evidence was collected, the contents of the bag, and the complaint number on the bag.
Detective Johns also opened the bag, noted that it contained three swabs and one cloth, and
put the bag in a locked drying cabinet for storage. He filled out an evidence tracking form
showing the chain of custody which was admitted as exhibit 14. The key to the unit was
given to Detective Cleek that morning. Detective Cleek testified that he gave the key to the
storage cabinet to Detective Sutherland.

         Detective Sutherland testified that he received the key to the evidence, and did not
manipulate the evidence in any way. Detective Sutherland further testified that he obtained
the evidence containing the swabs collected from the crime scene and personally delivered
it to the TBI crime laboratory. Agent Minor testified that he received the evidence in “sealed
condition.” The gravamen of Black’s argument is that there was not written documentation
of some of the links in the chain of custody. However, the State was not required to provide
such documentation, and in each instance there was sufficient testimony regarding the status
of the evidence.

        Black additionally implies that the chain of custody for the evidence swabs was
compromised because Officer Lawrence stated that he individually packaged each evidence
swab in a paper sack, and Detective Johns stated that he received the swabs together in one
bag. We are not persuaded that this testimony alone compromised the chain of custody. In
our view, the facts and circumstances surrounding the evidence swabs reasonably established
their identity and integrity. Accordingly, the trial court did not abuse its discretion, and Black
is not entitled to relief on this issue.

       III. Identification of Black. Black contends that it was constitutionally improper to
allow the male victim to identify him at trial in light of the inherent suggestiveness of the
photographic lineup, the lead detective’s improperly suggestive actions, and the factual
uncertainty of D.B’s identification.

       “On review, an appellate court may consider the evidence presented at the suppression
hearing as well as at trial in determining whether the trial court properly denied a pretrial
motion to suppress.” State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). In conducting
our review, it has long been settled that “[f]indings of fact made by the trial judge after an
evidentiary hearing of a motion to suppress are afforded the weight of a jury verdict, and this
court will not set aside the trial court’s judgment unless the evidence contained in the record
preponderates against his findings.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996) (quoting
State v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992)). In addition, the Tennessee
Supreme Court has stated:

       Questions of credibility of the witnesses, the weight and value of the evidence,
       and resolution of conflicts in the evidence are matters entrusted to the trial
       judge as the trier of fact. The party prevailing in the trial court is entitled to the

                                               -14-
       strongest legitimate view of the evidence adduced at the suppression hearing
       as well as all reasonable and legitimate inferences that may be drawn from that
       evidence. So long as the greater weight of the evidence supports the trial
       court’s findings, those findings shall be upheld. In other words, a trial court’s
       findings of fact in a suppression hearing will be upheld unless the evidence
       preponderates otherwise.

Id. at 23.

        Our analysis of this issue is based upon the United States Supreme Court holdings in
Simmons v. United States and Neil v. Biggers. In Simmons, the Court held that “convictions
based on eyewitness identification at trial following a pretrial identification by photograph
will be set aside on that ground only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968). In Neil v. Biggers, the
Court established a two-part analysis which the trial court must apply to determine the validity
of a pre-trial identification. 409 U.S. 188, 198-99, 93 S. Ct. 375, 381-82 (1972). First, the
trial court must determine whether the identification procedure was unduly suggestive. Id.
at 198, 93 S. Ct. at 381-82. Next, if the trial court determines that the identification was
unduly suggestive, it must then consider whether, under the totality of the circumstances, the
identification procedure was nonetheless reliable. Id. at 199, 93 S. Ct. at 382. In Tennessee,
it is unnecessary to apply the totality of the circumstances test described in Biggers if the trial
court determines that the identification procedure was not unduly suggestive. See State v.
Butler, 795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).

        Here, the trial court granted Black’s motion to suppress in part and denied his motion
in part. Specifically, the female victim’s in-court identification of Black at the arraignment
was excluded because she identified someone other than Black in the photographic lineup.
However, the trial court stated, “The photo lineup identification by [the male victim] was not
suggestive. Since the procedure was not unduly suggestive, the Court does not need to delve
into the second prong of the Biggers analysis.” The trial court reasoned:

       There is nothing in the proof or testimony presented at the suppression hearing
       that Detective Sutherland’s actions throughout the identification process were
       improper. Secondly, this Court has thoroughly scrutinized the exhibits
       presented in this case, particularly the photographic lineup sheets. There is
       nothing in these photographs that indicates a gross dissimilarity to the Court.


The trial court denied the motion to suppress the male victim’s identification of Black, finding
that “[t]he individuals depicted in each of the photo lineups are all similar in appearance to
each other.”

                                               -15-
        Based on our review of the record, we agree with the trial court and conclude that there
was nothing unduly suggestive about the photographic lineup or the overall identification
process. The photographic lineup contains photographs of six African American males, all
of whom had a bald head and a goatee. Each photograph is uniform in size. Except for one
person, all, including Black, wore dark-colored clothes. Moreover, despite the difference in
the background color, nothing about Black’s photograph was “grossly dissimilar” to the others
in the photographic lineup. We also do not consider Detective Sutherland’s statements to the
male victim that there was “a possible suspect” or “a DNA match” or “a CODIS hit” prior to
viewing the photographic lineup as unduly suggestive. Accordingly, the trial court did not
err in denying Black’s motion to suppress.

       IV. Admission of “Codis Match” Testimony. Black claims that it was improper to
admit proof of the original “CODIS match” or hit between his DNA and the crucial evidence
swabs because there was no chain of custody establishing his DNA as the source of the match.
The State argues that Black failed to preserve this issue by lodging a contemporaneous
objection to Agent Minor’s testimony; therefore, this issue is waived.

        Here, the record clearly shows that this issue was properly preserved by pre-trial
motion and objection. Prior to Agent Minor’s testimony, defense counsel filed a motion in
the first trial in this case, requesting that the trial court exclude testimony regarding a CODIS
match. The trial court allowed the State to “allude to the hit, only in the sense that his name
came up, not to say you had a prior DNA on Christopher Black.” Following Agent Minor’s
testimony in the instant case regarding the discovery of an unknown male profile, the
prosecutor questioned, “And was there a match?” Agent Minor replied, “Yes.” One question
later, defense counsel asked to approach the bench and stated, “Again, I thought it was going
to be consigned to DNA hit as a possible subject. What I heard out there was ‘DNA match.’
I keep saying we don’t have a chain of custody on whatever blood we use to do a match.”
Agent Minor was then counseled not to use the word “match” regarding the CODIS report.
He then advised that the CODIS report actually used the term “match” but would comply with
the court’s instruction.

      Prior to the State admitting exhibit 36, the report showing the CODIS information, into
evidence, defense counsel objected and stated:

              At pre-trial last time I objected to all CODIS, because there is no chain
       of custody on Christopher Black’s blood. So anything [that] has to do with this
       is based on zero chain of custody, I would proceed – the prior ruling was they
       can say ‘hit.’ So, I don’t object to ‘CODIS hit.’ I do object, but I respect Your
       Honor’s prior ruling.

The last full paragraph of exhibit 36, a two-page report, was redacted to read: “The above
DNA profile was searched against the CODIS database and [blank space] was detected. To

                                              -16-
confirm this [blank space] a liquid blood sample from Christopher Black must be submitted
to the Nashville Laboratory for DNA testing.”

        Black correctly argues that there was no evidence supporting the chain of custody for
the blood drawn to establish the CODIS “hit.” However, based on the authority discussed in
Issue II, we are not persuaded that such evidence was necessary for exhibit 36 to be properly
admitted. Although it contained CODIS information, exhibit 36 was the serology report
analyzing the female victim’s DNA. The last paragraph provided that law enforcement had
searched the resulting DNA profile against the CODIS database, and Black was developed
as a suspect. Exhibit 36 specifically stated that a liquid blood sample from Black was
necessary for DNA testing. As such, the CODIS information within the report was not
intended to be used as confirmation of Black’s DNA. Rather, the CODIS information in the
report, which was testified to by Agent Minor, established a basis to request a liquid blood
sample from Black. See People v. Johnson, 139 Cal.App.4th 1135, 1151 & n.17 (Cal. App.
5 Dist. 2006) (Proof regarding the chain of custody is not necessary where the CODIS match
is used for further investigation, not as proof of an individual’s guilt). In addition, Agent
Minor testified that he compared Black’s blood with the DNA profile developed from the
evidence swabs taken from the scene. The chain of custody regarding the blood drawn from
Black that was compared to the evidence taken from the crime scene, though not challenged,
was proper. Accordingly, the trial court did not err in admitting exhibit 36.

       V. Consecutive Sentences. Black argues the trial court erred in imposing consecutive
sentencing because the court failed to make the requisite findings under State v. Wilkerson,
905 S.W.2d 933, 938 (Tenn. 1995). He further contends that the imposition of consecutive
sentencing violates his rights under the Sixth Amendment.

       On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d). Nevertheless, “the presumption of correctness which accompanies the trial
court’s action is conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant, not the State, has the burden of
showing the impropriety of the sentence. T.C.A. § 40-35-401(d), Sentencing Commission
Comments.

        Where a defendant is convicted of one or more offenses, the trial court has discretion
to decide whether the sentences shall be served concurrently or consecutively. T.C.A. § 40-
35-115(a). A trial court may order multiple offenses to be served consecutively if it finds by
a preponderance of the evidence that a defendant fits into at least one of the seven categories
in section 40-35-115(b). An order of consecutive sentencing must be “justly deserved in
relation to the seriousness of the offense.” T.C.A. § 40-35-102(1). In addition, the length of


                                             -17-
a consecutive sentence must be “no greater than that deserved for the offense committed.”
T.C.A. § 40-35-103(2).

        Although the offenses for which Black was convicted occurred before June 7, 2005,
the effective date of the amended sentencing act, he was not sentenced until January 17, 2007.
The record shows that the trial court sentenced him pursuant to the amended sentencing act.
Defendants sentenced on or after June 7, 2005, for crimes committed before that date but after
July 1, 1982, “may elect to be sentenced under the provisions of the act by executing a waiver
of such defendant’s ex post facto protections.” T.C.A. § 40-35-210, Compiler’s Notes.
However, the record before us does not contain a written waiver.

        At sentencing, there was confusion over which law was applicable. Defense counsel
initially conceded that two enhancement factors applied. He further argued that “while there
[were] enhancing factors, they [were] not significant enough to warrant a sentence any more
than the middle of the range.” The State replied:

              Based on what [defense counsel] said about starting at the bottom of the
       range, means that we’re dealing with post Blakely sentencing and not
       presumptively it being twenty years. And that’s fine, because that means the
       enhancement factors are guidelines, as opposed to being bound – so, no
       problem with that. I just wanted to make that clear.

Defense counsel then noted his disagreement with State v. Gomez [163 S.W.3d 632, 654-61
(Tenn. 2005) (Gomez I )], vacated and remanded, Gomez v. Tennessee, 549 U.S. 1190, 127
S.Ct. 1209 (2007), and argued that “these enhancement factors are unconstitutional in any
advisory rule; and, my position as a matter of law [is] that unless a jury has found the
enhancement factors that they cannot be relied on and he should be given the minimum
sentence.” After this discussion, the trial court stated that it could “use the enumerated
enhancement factors as a guideline” and sentenced Black according to Tennessee’s amended
sentencing act.

       Based on the above exchange, we must remand this case for the trial court to determine
which law applies to Black’s sentence. We note that under the prior law, Black’s sentence
may not be enhanced based upon judicially determined facts other than his prior criminal
record. State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007). On the other hand, under the
amended sentencing act, Black must execute a written waiver of his ex post facto rights, and
the trial court must state on the record its findings in support of any enhancement it
determ ines applies to the sentence.               See State v. M ooneyhan, No.
M2006-01330-CCA-R3-CD, 2007 WL 3227066, at *17-18 (Tenn. Crim. App., at Nashville,
Oct. 30, 2007).



                                             -18-
       We further note that the trial court imposed consecutive sentencing based on Tennessee
Code Annotated section 40-35-115(b)(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.” Regarding this subsection, the Tennessee
Supreme Court has stated:

       Proof that an offender’s behavior indicated little or no regard for human life
       and no hesitation about committing a crime in which the risk to human life was
       high, is proof that the offender is a dangerous offender, but it may not be
       sufficient to sustain consecutive sentences. Every offender convicted of two
       or more dangerous crimes is not a dangerous offender subject to consecutive
       sentences; consequently, the provisions of [s]ection 40-35-115 cannot be read
       in isolation from the other provisions of the Act. The proof must also establish
       that the terms imposed are reasonably related to the severity of the offenses
       committed and are necessary in order to protect the public from further criminal
       acts by the offender.

State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (quoting State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn. 1995)) (emphasis added). Unlike the other six subsections, the trial court
must make additional factual findings for the “dangerous offender” factor because it is “the
most subjective and hardest to apply.” Id. (quoting State v. Lane, 3 S.W.3d 456, 461 (Tenn.
1999)).

       In regard to consecutive sentencing, the trial court’s determination was limited to the
following:

       In this particular case the Court does find that the defendant is a dangerous
       offender whose behavior indicates little or no regard for human life and no
       hesitation – had no hesitation about committing a crime in which the risks to
       human life was high. Again, a weapon was used.

We conclude that a remand is also necessary for the trial court to “specify the reasons” for its
imposition of a consecutive sentence in this case and to make the additional factual findings
required for the dangerous offender classification. See Tenn. R. Crim. P. 32(c)(1); see also
Imfeld, 70 S.W.3d at 708. Accordingly, Black’s convictions are affirmed, but the case is
remanded to the trial court for a resentencing hearing, following the election by Black to
proceed under either the pre-2005 sentencing act or the post-amendment act with waiver of
ex post facto protections.

       Finally, in regard to Black’s challenge to the constitutionality of the consecutive
sentencing statute and without engaging in a lengthy discussion, we note that the Tennessee

                                              -19-
Supreme Court rejected an identical challenge in State v. Allen, 259 S.W.3d 671, 689 (Tenn.
2008). Accordingly, Black is not entitled to relief on this issue.

                                       CONCLUSION

       We affirm Black’s conviction and conclude that (1) the evidence was sufficient to
support his conviction, (2) the chain of custody was properly established for the evidence
collected from the crime scene as well as the blood sample collected from Black, (3) the male
victim’s identification of Black was properly admitted by the trial court, and (4) the trial court
properly admitted proof of the original “CODIS hit.” We affirm Black’s convictions but
remand for a resentencing hearing following Black’s election to proceed under either the
pre-2005 sentencing act or the amended sentencing act with waiver of ex post facto
protections and regarding the issue of consecutive sentencing.


                                                      ______________________________
                                                      CAMILLE R. McMULLEN, JUDGE




                                               -20-
