        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 19, 2010

                 STATE OF TENNESSEE v. TOMMY L. WRAY

                  Appeal from the Circuit Court for Marshall County
                     No. 2008-CR-165      Robert Crigler, Judge




                  No. M2009-01654-CCA-R3-CD - Filed June 8, 2010


Following a jury trial, the Defendant, Tommy L. Wray, was convicted of one count of
aggravated burglary, a Class C felony, one count of sexual battery, a Class E felony, and one
count of attempted sexual battery, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-14-
403(b), -13-505(c), -12-107(a). In this appeal, he contends that the trial court erred in
denying his motion for a new trial due to the State’s failure to provide him with a copy of a
statement made by the victim. After our review, we affirm the judgments of the trial court.


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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Christopher Westmoreland, Shelbyville, Tennessee, for the appellant, Tommy L. Wray.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, for the appellee, State of Tennessee
                                                   OPINION

                                            Factual Background

        The events underlying this case began on October 22, 2008. The victim, B.I.,1
testified that she was thirteen years old on that day. She lived at 828 Weaver Street in
Lewisburg with her sixteen-year-old brother and her mother, Tammy Ross.

       The victim testified that, at about 6:00 p.m. on October 22, Karen Edwards picked her
up and drove her to the First Church of the Nazarene in Lewisburg. The victim often
attended church with Ms. Edwards, whom she had known for about four years. The victim
expected that she would be returned to her home after church and that her mother would be
home at that time.

       Church activities ended at about 9:00 p.m. Ms. Edwards drove the victim home. As
they approached the victim’s house, the victim noticed that her mother’s car was not in the
driveway. She saw an SUV in the driveway, but did not recognize it.

        The victim exited Ms. Edwards’ car and walked to her house’s side door which was
next to the driveway in which the SUV was parked. The victim tried to unlock the door, but
her key got stuck. At that time, a woman exited the SUV and offered to help the victim open
the house’s side door. The woman introduced herself as Pam Cherry, and she claimed to be
a friend of the victim’s mother. The victim had never met her before. The victim also noted
that her mother had never been absent before when the victim returned from church.

       The victim successfully opened the side door and gave Ms. Cherry permission to use
the bathroom inside. The victim closed the door after she and Ms. Cherry were inside. Ms.
Cherry went into the bathroom. The victim poured a can of SpaghettiOs into a bowl and put
the bowl into the microwave, setting the timer for ninety seconds. The victim noted that her
brother was not home, and that she did not know where he was.

        The victim then heard the house’s side door open. She turned around and saw the
Defendant entering the house while closing the door behind him. He had not knocked, and
the victim had not seen him before or invited him inside. Shortly thereafter, Ms. Cherry
exited the bathroom and began talking to the Defendant. The victim became scared because
she had broken her mother’s rule that she was not to let strangers into the house.




       1
           It is the policy of this Court to refer to minor victims by their initials.

                                                        -2-
       The victim could not remember the substance of the Defendant’s and Ms. Cherry’s
conversation, but recalled that the Defendant touched Ms. Cherry “like trying to get down
her pants just a little bit.” Ms. Cherry said, “stop it, there is a little girl in this room.” Ms.
Cherry then exited the house through the side door, closing the door behind her.

        The victim told the Defendant to leave because she was not allowed to have strangers
in the house. The Defendant said, “it is all right, I just want to talk.” The victim responded
that she wanted to eat and that she did not think the Defendant should be there because her
mom was not home. The Defendant sat down on a small glass table in the kitchen, near the
victim, and continued to sip from a can of beer he had carried in from outside. He then told
the victim that she “[had] a nice body.” She ignored him. He then patted her on her
buttocks. She became very frightened and, having retrieved her SpaghettiOs from the
microwave, walked into the adjacent living room. She could not leave the house using the
front door because it was blocked by a couch.

        The victim sat down on a sectional couch in the living room and began to eat her
dinner. The Defendant followed her and sat down next to her. After about one-and-a-half
minutes, the victim heard Ms. Cherry’s car’s horn. The Defendant stood up and walked
through the kitchen. He opened the side door, leaned about halfway out, and said “give me
a few more minutes.” The Defendant returned to the living room and sat back down on the
couch. The victim noted that even though she was more scared than she had ever been in her
life, she did not have a phone in the house and could not have called for help.

       The Defendant asked the victim if she had had any boyfriends. She said she had. The
Defendant asked if any boyfriend “[had] ever gotten in [her] pants,” if she had ever taken her
clothes off for a boyfriend, or if she had ever “Fd around” with a boyfriend. The victim
responded in the negative. The Defendant then said he “was getting hard.” The victim did
not understand what he meant. The Defendant then “told [her] to look.” She did so because
she “didn’t know what he was talking about.” She looked down as directed and saw the
Defendant’s exposed penis sticking out of his pants a few inches away from her. She moved
away.

       The Defendant, still sitting down on the couch, told the victim to “feel it.” She
refused and said she “didn’t want to.” She became even more afraid, and “thought [she] was
going to get hurt really bad.” The Defendant grabbed the victim’s hand and tried to put it on
his penis; she was able to pull her hand away before he did so, however. The victim then
heard Ms. Cherry’s car’s horn again. The Defendant stood up and left. The victim estimated
that she had been in the house for a total of about forty-five minutes at that point, and that
the Defendant had sat with her for most of that time.



                                               -3-
       The victim and other witnesses testified regarding: the relationship between Ms.
Cherry and Ms. Ross, the victim’s mother; Ms. Ross’ whereabouts on October 22; the
victim’s procurement of police assistance and photo identification of the Defendant; and the
Lewisburg Police Department’s involvement with this case.

       At the close of the State’s proof, the Defendant chose to testify in his own defense.
The Defendant admitted to entering the victim’s home, telling her she had a “nice butt,”
patting her on the buttocks, and sitting with her in the living room. He said he had knocked
on the door and entered the house only after the victim answered the door and invited him
inside. After sitting on the couch with the victim for at least twenty minutes, he asked the
victim, “if I were to do something, would it bother you.” When the victim responded in the
negative, the Defendant said that he exposed his penis to her. He said he did not try to force
the victim to touch his penis, and did not intend to commit a felony, theft, or assault at the
time he entered the victim’s house.

       The Defendant was convicted as charged. He now appeals.

                                            Analysis
        On appeal, the Defendant contends that the trial court erred in holding that he was not
entitled to a new trial by virtue of the State’s failure to provide him with a statement, made
by the victim on October 22, 2008, that appeared in his presentence report:

               I came home from church & people were sitting in my driveway. They
       asked for my mom and I said she wasn’t here. So I went inside, got me
       something to eat, and he walked in without knocking. He kept asking me if I
       drank or smoked anything and I said no, I’m not that type of girl. He then told
       me that I have a nice body and I got scared. He grabbed my butt, and I went
       into the living room to get away. He came in there and sat beside me. He kept
       getting closer. They beeped the horn and he went out there. 5 mins. later he
       came in again without knocking and said they were messing around in the car.
       He asked me if I wouldn’t tell, and I was going to play along so nothing
       happened to me. Then he asked me if I had a boyfriend and I said I just broke
       up with him. So he kept on asking me if we played with each other while we
       were going out. She said no. I am not that way. He asked about 10 times.
       Then he said that he was getting hard, and I didn’t know what he meant so he
       pulled it out and said look. I didn’t know what he meant by that neither, so I
       looked, then I turned around as fast as possible. Then he told me to touch it,
       and I said no, he asked me about 10 times, I kept saying no. Then they beeped
       the horn again and he left.



                                              -4-
        In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court
established the prosecution’s duty to furnish the accused with exculpatory evidence upon
request by the defense. Id. at 87. Any “suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. The
duty to disclose exculpatory evidence extends to all “favorable information” irrespective of
whether the evidence is admissible at trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001).
“Favorable information” includes evidence that could be used to impeach the State’s
witnesses. Id. at 55-56 (citations omitted). While Brady does not require the State to
investigate for the defendant, it does burden the prosecution with the responsibility of
disclosing statements of witnesses favorable to the defense. State v. Reynolds, 671 S.W.2d
854, 856 (Tenn. Crim. App. 1984).

     In order to establish a due process violation under Brady, a defendant must
demonstrate the following:

       (1) The defendant must have requested the information (unless the evidence
       is obviously exculpatory, in which case the State is bound to release the
       information whether requested or not);

       (2) The State must have suppressed the information;

       (3) The information must have been favorable to the accused; and

       (4) The information must have been material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). In order to establish that exculpatory
evidence is “material,” a defendant must show that “the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995); see also Edgin, 902 S.W.2d at 390.
There must be a “‘reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” Edgin, 902 S.W.2d at 390 (quoting
Kyles, 514 U.S. at 435).

        The Defendant argues that the victim’s undisclosed statement could have been used
to impeach her because “[i]n the trial the victim . . . testified that she never approached the
vehicle in the driveway, but her written statement was different. Her written statement never
mentions admitting Ms. Cherry into the house, but in trial she went into great detail on this
issue.”




                                              -5-
       We disagree that the victim’s undisclosed statement says that she “approached the
vehicle in the driveway,” although it does differ from her trial testimony in that the victim
admits that she saw people in the SUV upon first approaching her house. It is true that the
victim’s undisclosed statement does not mention Ms. Cherry entering the house. We also
note that the victim’s statement does not mention any attempt by the Defendant to force her
to touch his penis.

        The trial court found that there was no reasonable probability that, had the statement
been disclosed to the defense, the result of the trial would have been different. The trial court
also found that the statement was not “exculpatory evidence.” The Defendant admitted to
touching the victim’s buttocks and exposing his penis; at trial, the Defendant only contended
that he entered the victim’s house with her permission and that he did not grab her hand.
After our review of the record, we cannot conclude that the undisclosed statement, in which
the victim failed to mention Ms. Cherry or the Defendant’s attempt to force her to touch his
penis would have significantly damaged her credibility. The Defendant has not established
a reasonable probability that disclosure of the victim’s statement would have changed the
result of his trial. Edgin, 902 S.W.2d at 390. Because the information was not material, the
Defendant cannot establish a Brady violation. Id. at 389. The Defendant is not entitled to
relief on this issue.

                                          Conclusion
         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.




                                                     _________________________________
                                                     DAVID H. WELLES, JUDGE




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