                                                                                         10/04/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                March 20, 2019 Session

               STATE OF TENNESSEE v. BRANDON E. BANKS

                Appeal from the Criminal Court for Davidson County
                 No. 2015-C-1517     Monte Watkins, Senior Judge



                            No. M2018-00264-CCA-R3-CD



NORMA MCGEE OGLE, J., concurring in part and dissenting in part.

       I join the majority in affirming the defendant’s convictions of aggravated rape and
aggravated sexual battery. But I write separately to dissent from the majority’s
conclusions that Detective Gish was qualified to describe and give his opinion regarding
what the videos and images appeared to show and that the defendant waived his claim
regarding Detective Mayo’s “editorial commentary.”

        First, the majority concludes that Detective Gish was qualified to describe what
the videos and images appeared to show pursuant to Tennessee Rule of Evidence 702,
which provides that “[i]f scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” However, Detective Gish
testified as an expert “in computer forensics analysis, mobile device analysis, as well as
the analysis of those digital images and criminal investigations.” In other words, he
testified as an expert in how he was able to obtain videos and images from electronic
devices. Such expertise did not make him qualified to testify about sexual acts that
appeared to be depicted in those videos and images of which he had no personal
knowledge.

       The majority also concludes that “absent his qualifications as an expert,” Detective
Gish’s testimony was admissible as lay opinion testimony pursuant to Tennessee Rule of
Evidence 701, which provides that a lay witnesses may give testimony in the form of an
opinion when the testimony is “(1) rationally based on the perception of the witness and
(2) helpful to a clear understanding of the witness’s testimony or the determination of a
fact in issue.” As our supreme court has explained, though, “admission of lay opinion
testimony is limited to those situations wherein the jury could not readily draw its own
conclusions on the ultimate issue, without the aid of the witness’s opinion testimony.”
State v. Schiefelbein, 230 S.W.3d 88, 130 (Tenn. Crim. App. 2007). Moreover, “lay
opinion testimony may be improper where the witness giving the lay opinion effectively
usurps the function of the jury.” State v. Mattie Florence Sweeney, No. M2016-02372-
CCA-R3-CD, 2018 WL 1559973, at *8 (Tenn. Crim. App. at Nashville, Mar. 29, 2018),
perm. app. denied, (Tenn. July 18, 2018). Therefore, I would hold that his testimony also
was inadmissible under Rule 701.

       Finally, the majority concludes that the defendant waived a similar issue with
regard to Detective Mayo because the defendant failed to object to the detective’s
“editorial commentary.” However, before trial, the defendant filed a motion in limine to
prohibit the State from “allowing any of their witnesses to provide any type of
interpretation regarding the videos and/or photographic images it intends to introduce in
this matter.” (Emphasis added.) Additionally, during a hearing on the motion, defense
counsel argued as follows:

              I don’t think that there’s a problem with the detective testifying that
      this is a particular person at a particular location. Okay. Because I think
      that’s something that pretty much we can stipulate to. What my objection
      goes to is him testifying what does it appear that person is doing. . . . So,
      just so we’re clear, you know, Mayo or Gish or whoever or the Vanderbilt
      security guy, could all testify that this is, you know, the four defendants
      walking into the dorm, and this is the first floor of the dorm. Now, what
      they’re doing while they’re walking into the dorm, that should be the end of
      it. Because their conduct is what I’m objecting to anybody commenting on.

(Emphasis added.) Therefore, I disagree with the majority’s conclusion that the
defendant waived the issue. In any event, unlike Detective Gish, Detective Mayo did not
describe what appeared to be depicted in any videos or images that were obtained from
electronic devices. Therefore, there was no error as to his testimony.

        In sum, I would conclude that the trial court erred by allowing Detective Gish to
testify about what was depicted in the videos and images because he was not qualified to
do so pursuant to Tennessee Rule of Evidence 701 or 702. Nevertheless, given the
overwhelming evidence against the defendant, I have no hesitation in concluding that the
trial court’s error was harmless.


                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE
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