                                                                                        05/09/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               February 7, 2017 Session

 STATE OF TENNESSEE v. JARVIS SHERROD and ANTONIO DODSON

                 Appeal from the Criminal Court for Shelby County
                      No. 11-00787       Chris Craft, Judge
                     ___________________________________

                           No. W2015-02022-CCA-R3-CD
                       ___________________________________

The Defendants, Jarvis Sherrod and Antonio Dodson, were each convicted by a Shelby
County Jury of three counts of especially aggravated kidnapping, two counts of
aggravated robbery, one count of aggravated rape, one count of aggravated burglary, and
one count of employing a firearm during the commission of a dangerous felony. Sherrod
was also convicted of one count of aggravated sexual battery and was sentenced to
seventy-three years’ incarceration; Antonio Dodson was sentenced to forty-four years’
incarceration. In Jarvis Sherrod’s appeal, he argues that the trial court erred by: (1)
denying his motion to sever his case from that of his co-defendant; (2) denying his right
to a speedy trial; (3) improperly admitting a gun into evidence at trial; (4) allowing the
victims’ prior consistent statements at trial; and (5) improperly exercising its duty as
thirteenth juror. In Antonio Dodson’s appeal, he argues that the trial court erred by: (1)
denying his motion to sever his case from that of his co-defendant; (2) finding that the
evidence was sufficient to support two of his especially aggravated kidnapping
convictions; (3) allowing improper closing argument by the State; (4) allowing the
victims’ prior consistent statements at trial; (5) allowing improper expert witness
testimony; and (6) denying his motion to dismiss count ten of the indictment for failure to
provide sufficient notice of the charge. Upon review, we affirm the judgments of the trial
court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, JJ., joined.

Charles Edgar Waldman, Memphis, Tennessee, for the Defendant-Appellant, Jarvis
Sherrod.

Michael R. Working and Seth M. Segraves, Memphis, Tennessee, for the Defendant-
Appellant, Antonio Dodson.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Alexia Fulgham Crump and Eric
Christensen, Assistant District Attorney Generals, for the Appellee, State of Tennessee.

                                           OPINION

        On August 8, 2010, and into the early morning hours of August 9, 2010, the
Defendants, along with their co-defendant, Lorenzo McKinney, invaded the home of
Reno Stafford and Paula Diana and held them captive, along with Stafford’s girlfriend,
S.C.1 The Defendants burglarized the home, made multiple trips to the ATM to withdraw
money from Stafford’s account, and raped and sexually assaulted S.C. On February 5,
2011, the Shelby County Grand Jury returned a twelve-count indictment charging the
Defendants with three counts of especially aggravated kidnapping in counts one through
three, two counts of aggravated robbery in counts four and five, one count of aggravated
rape in count seven, one count of aggravated burglary in count eight, and one count of
employing a firearm during the commission of a dangerous felony in count ten. Sherrod
was also indicted for a second count of aggravated rape in count six and for unlawful
possession of a gun by a convicted felon in count twelve.2 On February 26, 2013,
Dodson filed a motion to sever his case from Sherrod’s case, contending that Sherrod had
displayed improper behavior in court and might prejudice Dodson’s case. The record on
appeal does not include a written order disposing of this motion or a transcript of the
hearing on the motion. However, following a series of continuances, the Defendants
were tried together in April 2015. In their joint trial, both Defendants were convicted as
charged with the exception of count seven, in which Sherrod was convicted of the lesser
included offense of aggravated sexual battery.

       Trial. Reno Stafford testified that he and S.C. were at a hotel in Memphis on the
evening of August 8, 2010. They left the hotel to get some clothes at Stafford’s house on
1795 Capri where he lived with his mother, Paula Diana. Stafford recalled that he and
S.C. entered the house, Stafford gave her the clothes, and S.C. went back outside and
waited for Stafford in the car. When Stafford walked outside, he was approached by two
armed men, who he identified as Sherrod and McKinney. Stafford testified that Sherrod
said “‘[g]ive me everything,’” and Stafford emptied his pockets of cash, his keys, and a
small amount of marijuana. Sherrod and McKinney then forced Stafford and S.C. into
the house. Stafford testified that his mother came out of her bedroom and Sherrod and
McKinney forced all three victims into the living room. Sherrod forced Diana to lay

       1
         It is this court’s policy to refer to victims of sexual crimes by their initials only.
       2
         The Defendants’ co-defendant, McKinney, was the only individual charged in counts nine and
eleven. McKinney was also named with the Defendants in counts one through five, eight, and ten.
                                               -2-
facedown on the couch and Stafford and S.C. to lay down on the living room floor.
Stafford testified that they beat him with a broom, hit S.C. in the face, and took his shorts
and shoes off while demanding money and drugs. Stafford also testified that Sherrod
pulled S.C.’s pants down “and started raping her with his gun.” Stafford said that a third
man entered the house while Sherrod was raping S.C. He heard the third man say “make
sure he keeps his face down,” referring to Stafford, and he saw that the man had a towel
over his face.

        Sherrod and Dodson took S.C. to the back of the house while McKinney stayed in
the living room with Stafford and his mother. Stafford testified that they were in the back
of the house for about fifteen or twenty minutes while McKinney beat Stafford with a
baseball bat, threatened him, and told him “we’re going to rape your girlfriend.” When
the Defendants came back into the living room, Sherrod and McKinney beat Stafford
until he gave them his debit card PIN number. Stafford testified that he gave them a fake
pin number, hoping they would leave, but that the Defendants took S.C. with them to the
ATM and left McKinney at the house. Before the Defendants left, they tied Stafford’s
hands and feet with clear plastic tape. Stafford testified that the Defendants took his car
to the ATM and were gone for fifteen or twenty minutes while McKinney continued to
hit Stafford and ask him for drugs and money. When the Defendants and S.C. came
back, Stafford “made up some story” that the card did not work because he had already
withdrawn the maximum for the day. The Defendants and McKinney decided to wait
until midnight so that they could withdraw more money, and Stafford eventually gave
them the correct pin number. While they were waiting, Sherrod and McKinney
threatened to shoot Stafford and Dodson beat Stafford and called him names. Stafford
testified that he then recognized Dodson’s voice.

       After midnight, the Defendants went back to the ATM and again took S.C. with
them, leaving McKinney at the house. After the Defendants came back from the ATM,
they dragged Stafford into the bathroom closet and threatened to kill him if he called the
police. The Defendants and McKinney then left the house and Stafford broke out of the
tape around his hands and feet. S.C. returned in Stafford’s car and told Stafford she had
been raped. Stafford drove S.C. to the hospital where they met with officers and later
gave formal statements. Stafford testified that the Defendants and McKinney were able
to withdraw about $400 from his bank account and that they also took about $250 from
his pocket as well as some marijuana and Promethazine. Stafford testified that they also
took the radio out of his car.

       Stafford identified Dodson, Sherrod, and McKinney in photographic lineups the
next day. Stafford testified that he knew Dodson from school but that he did not know
Sherrod or McKinney. Stafford identified a photograph of Sherrod wearing his shorts,
belt, and shoes that were taken from him at his house. Stafford also identified a
                                            -3-
photograph of a gun and testified that it was “[t]he gun that [Sherrod] used to rape my
girlfriend.”

        Stafford confirmed that his testimony at the preliminary hearing was consistent
with his trial testimony. However, Stafford admitted to giving another statement on April
4, 2011, after the preliminary hearing, in which Stafford told the State’s investigator that
he “had reason to believe that [S.C.] was involved.” Stafford told the investigator that he
had seen S.C. in a car with someone who was wearing a red shirt, and that he thought it
was one of the shirts taken from his house. Stafford also told the investigator that S.C.
received victim’s compensation money for the rape and that S.C. “didn’t show no [sic]
kind of emotion like being offended when they was [sic] raping her with the gun.”
Stafford told the investigator that he was not sure about his identification of Dodson and
that it might instead be someone named Jerald McKinney. At trial, Stafford explained
that he had been upset with S.C. when he gave the statement because she had ended their
relationship and filed a restraining order against him that day. Stafford also explained
that he was only questioning his identification of Dodson based on suggestions from
other people. Stafford testified that he no longer believed S.C. was involved.

       On cross-examination, Stafford admitted that he smoked marijuana and took
Promethazine while at the motel but denied being high when he was at his house.
Stafford confirmed that he and S.C. had sex at the motel before driving to his house.
Stafford denied that he had seen the Defendants’ pictures or names on television before
he formally identified them in the lineup, although he recalled seeing the Defendants on
the news after his identification. Stafford described the two guns that Sherrod and
McKinney had as “a revolver and an automatic.” Stafford testified that the revolver was
brown or black and that the automatic was black. However, Stafford acknowledged that
in his statement to officers he initially identified the revolver as silver. Stafford also
acknowledged that the gun in the photograph he had previously identified was not silver
and that he could be mistaken about the description of the gun. Stafford agreed that the
tape around his hands and feet was easily broken once he tried to free himself.

       S.C. testified consistently, in large part, with Stafford’s testimony. S.C. said that
she left all of her belongings in the motel when they drove to Stafford’s house, including
her cell phone, ID, and cash. S.C. waited in the car for about ten or fifteen minutes while
Stafford was in the house. When Stafford came outside and walked up to the car, S.C.
saw “two guys r[u]n up on him.” S.C. testified that she had never seen the two men
before and that they both had guns and were reaching into Stafford’s pockets. S.C. stated
that one of the men got in the car, pointed a gun at her, and told her to go inside the
house. Once they were inside, Sherrod hit S.C. in the head with his gun and made her lay
facedown on the floor, where Sherrod forced her to pull her pants down and raped her
vaginally with his gun. Sherrod then ordered S.C. at gunpoint to go to a room in the back
                                           -4-
of the house and perform oral sex on him. While S.C. was performing oral sex on
Sherrod, Dodson entered the room and said “let me get a piece of that b****.” S.C.
testified that Dodson’s face was covered with a shirt and that he did not have a gun.
Sherrod made S.C. wash herself because she was bleeding, and then Dodson vaginally
raped her in the bathroom.

       After she was raped, S.C. was forced to go with Sherrod to the ATM in Stafford’s
car. S.C. recalled that Sherrod drove and that Dodson or McKinney may have been with
them. S.C. testified that the first PIN number Stafford gave them did not work, so they
drove back to the house and McKinney and Sherrod beat Stafford until he gave them the
real PIN number. S.C. was then ordered to drive Dodson to the ATM and withdraw the
maximum amount, which was about $400. When they arrived back at the house, S.C.
was told to sit on a bench in the living room while the Defendants and McKinney
“gathered everything up in black bags.” After they were done, S.C. testified that they
told Stafford his car “would be in the Robin Hood Apartments,” but then they changed
their mind and ordered S.C. in the car. S.C. was told to put her head down in the
backseat, and the Defendants and McKinney got in the car and drove for about ten
minutes. S.C. testified that the car stopped and “[t]hey popped the trunk and took
[Stafford’s] radio system and tossed the keys and told me how to get out and told me to
leave.” S.C. testified that she drove away “[a]s fast as possible” back to Stafford’s house
and then Stafford drove her to the hospital. At the hospital, S.C. was referred to the
Memphis Sexual Assault Resource Center (“MSARC”) where she had an examination
and rape kit performed. S.C. acknowledged that she had applied for and received
victim’s compensation from the State.

        S.C. testified that she “instantly” identified Sherrod in a photographic lineup the
next day. S.C. also testified that the gun Sherrod used to rape her was a revolver. S.C.
identified a photograph of her face taken at the hospital and identified a bruise on her face
near her eye. S.C. testified that the bruise was caused by Sherrod hitting her in the face
with his gun.

       On cross-examination, S.C. was shown the same photograph of the gun that
Stafford was shown, and S.C. testified that “[i]t look[ed] to be the gun that [Sherrod] used
that night . . . [t]o rape [her].” S.C. denied consuming any drugs or alcohol on the day of
the offenses but confirmed that she was “rolling up a blunt” in Stafford’s car while she
was waiting on him. S.C. denied taking anything from the house or assisting the
Defendants or McKinney to take any stolen property out of the house. S.C. confirmed
that she was not bound or tied up at any point. S.C. also confirmed that she could not
pick Dodson out of a photographic lineup. S.C. stated that she did not learn Sherrod’s
name until after she identified him in the lineup and that she did not see the Defendants
on television. On redirect, S.C. was again asked about the photograph of the gun. S.C.
                                            -5-
agreed that it was possible that the gun in the photograph was not the one used to rape her
but that “[i]t look[ed] awfully similar.”

        Paula Diana testified that she lived at 1795 Capri with her son, Stafford. On the
night of the offense, Diana was asleep in her bedroom when she heard loud voices and
screaming. Diana walked toward the living room when she saw a man, who she
identified at trial as McKinney, look around the corner. McKinney told someone to “take
care of her,” and another man approached Diana, held a gun to her head, and told her to
put her head down. Diana testified that the second man, who she identified at trial as
Sherrod, frisked her and took her into the living room. Diana saw Sherrod hit S.C. in the
head with his gun and say “don’t look at me.” Diana was ordered to lie facedown on the
couch while her ankles and wrists were tied with cords and tape. Diana kept her face
down but “peeked up” occasionally and saw Sherrod and McKinney beating Stafford.
Diana said both Sherrod and McKinney had guns and were running around the house
looking for things. At one point, Diana heard Stafford say “please don’t hurt her,” but
she could not tell what was happening. Diana also heard Sherrod and McKinney talking
about a PIN number and going to the bank, and she remembered a third man entering the
house. Diana testified that the third man was wearing a shirt on his head to hide his face.
When they returned from the bank the second time, Diana heard the perpetrators
“ransack[ing] the house.” Diana testified that the tape around her hands was “really
loose” and that she could have broken out of it but she stayed still “[b]ecause they told
[her] to and they had guns.”

       After the Defendants and McKinney left, Diana was able to free herself and she
found Stafford tied up in the bathroom closet. Diana testified that the Defendants and
McKinney took electronics, jewelry, wallets, cell phones, clothing, and a purse from her
house. Because their phones were stolen, Diana drove to a friend’s house to call the
police while Stafford and S.C. went to the hospital. Diana estimated that the entire
incident lasted about an hour. Diana was not able to identify anyone in photographic
lineups the next day. On cross-examination, Diana admitted that she only learned the
Defendants and McKinney’s identities after she “looked them up and studied them for
five years.” Diana also admitted that she could not identify the third man because he had
his face covered. Diana said that once the attackers left she waited “about five minutes”
and then she broke out of the tape around her wrists and ankles in “[o]ne second.”

       Co-defendant Lorenzo McKinney substantially confirmed the victims’ testimony.
McKinney acknowledged that he participated in the crimes and that he had a criminal
history, including convictions for aggravated robbery and theft. McKinney also
confirmed that he expected favorable treatment in exchange for his testimony.
McKinney said that he had known Sherrod for about fifteen years and Dodson for a few
years. McKinney did not previously know Stafford or S.C.
                                           -6-
        McKinney testified that, on August 8, 2010, he was with Sherrod at the Hillview
Apartments when Dodson came over and told them that someone “just received a large
quantity of marijuana.” Dodson told them that this person did not have a gun, that they
could easily rob him, and that he knew the address. The Defendants and McKinney then
got a ride to Stafford’s house. McKinney testified that he and Sherrod both had guns;
McKinney had an automatic and Sherrod had a “big silver revolver.” As they
approached the house, McKinney saw Stafford walking out of the front door so he and
Sherrod approached him with their guns while Dodson stayed outside. McKinney
testified that he pointed a gun at Stafford, demanded marijuana, and Stafford emptied his
pockets of a small amount. McKinney and Sherrod forced Stafford and S.C. inside and
taped up Stafford and Diana. Stafford denied having any more marijuana, and McKinney
took his pants and beat him with a baseball bat and a broom. McKinney saw Sherrod
force S.C. to pull her pants down and threaten Stafford that if he did not tell them where
the marijuana was he would “stick the gun up [S.C.’s] behind.” McKinney also saw
Sherrod put the gun near S.C.’s genital area, but he could not tell whether Sherrod
penetrated S.C. with the gun. Sherrod then took S.C. to the back of the house. A few
minutes later, Dodson came inside with a “shirt or something around his face” and also
went to the back of the house. McKinney testified that he called Dodson back to the
living room and gave Dodson his gun while he went to the back of the house to search for
marijuana.

        McKinney testified that they decided to take S.C. to the ATM to withdraw money
after finding Stafford’s debit card in his wallet. McKinney also testified that he took
Stafford’s ID card from the wallet and gave it to Sherrod. McKinney said that Stafford
initially gave them the wrong PIN number, and McKinney beat him with a baseball bat
until he gave them the correct number. McKinney stayed at the house during both trips
to the ATM. McKinney testified that he eventually realized that Stafford “was telling the
truth” about the marijuana, so they took items from the house and left. McKinney said
that they took a TV, a watch, some clothes, about $300 from the ATM, and Stafford’s
clothes and shoes. McKinney denied that the black revolver in the photograph was the
gun used in the crimes. McKinney testified that the guns they used were from “someone
at the apartment where [they] hang out,” and that they later returned the guns to the
owner.

        The next day, McKinney was with Sherrod at a house on Brandale when police
arrived. McKinney attempted to hide in the attic and Sherrod attempted to hide in a
closet, but both were found and arrested. After his arrest, McKinney waived his rights
and made a statement to police about the incident. McKinney was unaware of any
communication between the Defendants and S.C. before the robbery.

                                          -7-
        On cross-examination, McKinney testified that S.C. asked for one of Diana’s
purses while they were going through the house. McKinney also confirmed that S.C. was
not tied up and he claimed that no one hit her. McKinney said that officers arrived at the
Brandale house to execute an arrest warrant against Sherrod for a domestic violence
charge. McKinney initially told police that Sherrod organized and led the home invasion
because he was mad at Sherrod for getting them arrested. However, at trial, McKinney
testified that the home invasion had actually been Dodson’s idea.

       Lieutenant David Sloan of the Memphis Police Department (“MPD”) received
instructions to go to the hospital to interview the victims of a home invasion, rape, and
robbery. Lieutenant Sloan testified that when he first met S.C. she was highly upset,
crying, and had visible injuries, including a large bruise on her neck. S.C. told Lieutenant
Sloan that three people had robbed them and that two of them had raped her both
vaginally and orally. S.C. also told Lieutenant Sloan that two of the men were unmasked
and that Stafford might know the third masked man. Lieutenant Sloan instructed officers
to take S.C. to the rape crisis center for a forensic exam, to take Stafford to Lieutenant
Sloan’s office to make a formal statement, and to process Stafford’s car for fingerprints.
After leaving the hospital, Lieutenant Sloan visited the scene at 1795 Capri where he
gave instructions to tag evidence and test for DNA and fingerprints.

       Lieutenant Sloan interviewed Stafford later at his home and testified that he was
“very lethargic, tired, upset,” and had multiple injuries to his head and face. Stafford told
Lieutenant Sloan that he had been approached by two unmasked men with guns outside
his house and that they forced him and S.C. inside where they began beating Stafford and
asking him for money, drugs, or anything of value. Stafford also told Lieutenant Sloan
that, while he was being beaten, his mother came out of her bedroom and was forced to
lie on the couch facedown with her legs and hands taped. Stafford said that the
perpetrators threatened him, raped his girlfriend with a gun barrel, and then took her into
the bathroom. Stafford also told Lieutenant Sloan that a third person entered the house
with a towel or shirt covering his face and that he immediately recognized this person’s
voice. Stafford told Lieutenant Sloan that he did not know the man’s name but that he
could recognize him if he saw him.

       Lieutenant Sloan testified that Sherrod was developed as a suspect because he was
found at the Brandale house with Stafford’s ID card in his pocket while wearing blood-
stained shoes similar to those taken from Stafford. Dodson was developed as a suspect
when the crime lab notified Lieutenant Sloan that they found Dodson’s fingerprints on
the car. Lieutenant Sloan prepared photographic lineups of the suspects, and Stafford
picked out Dodson’s photograph immediately. Lieutenant Sloan testified that Stafford
and S.C. also picked out Sherrod and McKinney in lineups as the two unmasked men.

                                            -8-
S.C. could not positively identify Dodson in the lineup, and Diana could not pick out
anyone’s photograph since her head was down during the entire incident.

       On cross-examination, Lieutenant Sloan maintained that he did not provide
Sherrod’s name to Stafford before he picked him in the photographic lineup. Lieutenant
Sloan also confirmed that there was no video footage from the ATM where the
Defendants withdrew money because the bank “had a problem with the camera system at
that branch.”

        MPD Officer William Warren testified that, on August 10, 2010, he drove to 2845
Brandale to execute two arrest warrants for Sherrod. Officer Warren found Sherrod
hiding in a closet and arrested him. After conducting a pat down search of Sherrod,
Officer Warren found $492 cash and Stafford’s ID card in his pocket. Officer Warren
testified that officers also found McKinney at the Brandale house hiding in the attic. At
trial, Officer Warren identified a photograph of Sherrod wearing the clothes he was
arrested in. Officers tagged the clothing collected from Sherrod when he was arrested,
including a pair of white tennis shoes, jeans, boxers, a belt, and a shirt. On cross-
examination, Officer Warren acknowledged that the warrants for Sherrod were not
related to the present case and involved a domestic violence incident.

        MPD Sergeant Eric Kelly identified and collected evidence at the Brandale house
where Sherrod and McKinney were arrested. In the closet where Sherrod was found,
officers found garbage bags full of clothes and a gun. Officers also recovered a TV, a
shotgun, multiple phones, and a large amount of marijuana at the house. Sergeant Kelly
identified photographs of the gun and identified the actual gun, which was entered into
evidence without objection. Sergeant Kelly also processed Stafford’s vehicle for
fingerprints and identified a palm print that he picked up on the passenger rear door.

        Nathan Gathright, an expert in the field of fingerprint examination, testified that he
was a latent print examiner for the MPD’s crime scene investigation unit. Gathright
testified that the print found on Stafford’s car belonged to Dodson. Gathright also
testified that he did not identify any prints belonging to McKinney or Sherrod.

        Judy Pinson testified that she had been a nurse examiner at MSARC for twenty-
five years. Pinson testified that her role required her to provide health care to rape
victims and collect evidence for trial. Pinson was qualified as an expert in the area of
“sexual forensic nurse examiner.” Pinson was also a custodian of MSARC’s records and
identified the MSARC report of S.C.’s examination, which was completed by a MSARC
nurse who no longer resided in Tennessee. Pinson read from the report, which stated that
S.C. was forced to perform oral sex on two men and was vaginally raped by two men.
The report indicated that neither man wore a condom and that a foreign object had been
                                            -9-
used. The report further indicated that one of the perpetrators “put the gun barrel in
[S.C.’s] butt,” but that there had been no anal assault. Pinson agreed that the discrepancy
could have been a typing mistake. Pinson further testified that the report indicated S.C.
had a petechiae on her cervix, which Pinson described as “little collections of blood
underneath the skin.” Pinson noted that the petechiae could have been caused by a gun or
by penile penetration, but agreed that it was more likely the petechiae was caused by a
gun. The report further indicated that S.C. had vaginal sex within four days of the
assault, and the exam took place seven hours after the assault. Pinson testified that the
report also noted that S.C. had “left [p]eriorbital purple bruising,” or “a black eye,” and
that S.C. was “trembling and sobbing.” On cross-examination, Pinson confirmed she had
no personal knowledge of S.C.’s injuries.

       Jessica Marquez, an expert in DNA forensic analysis, testified that she was
employed by the Tennessee Bureau of Investigation and assigned to the forensic biology
section where she performed serology and DNA testing. Marquez testified that she was
given samples from S.C., Stafford, the Defendants, and McKinney. Marquez testified
that swabs from the gun found at the Brandale house indicated a DNA profile from an
unidentified male. Marquez testified that the blood found on Sherrod’s shoes tested
positive for Stafford and S.C.’s DNA. Marquez also testified that a vaginal swab from
S.C.’s rape kit tested positive for Dodson’s DNA. On cross-examination, Marquez
confirmed that none of the DNA samples tested positive for Sherrod’s DNA. Marquez
also confirmed that the DNA tests could not indicate whether sexual activity was
consensual.

       Sherrod testified on his own behalf. He stated that, on the morning of August 10,
2010, he arrived at the Brandale house to meet with McKinney. Sherrod said that
McKinney and Antonio Dodson, Sr., Dodson’s father, lived at the house with another
man. Sherrod said he took a shower and then put on McKinney’s clothes and shoes,
which he found in a “black bag” in the closet. Sherrod testified that he was aware of an
outstanding warrant for his arrest on domestic violence charges, and that he planned to
turn himself in that day. Sherrod said McKinney gave him an ID card and told him to
give it “to a female” they knew, and Sherrod put it in his pocket. When the police
showed up, Sherrod hid in a closet while McKinney hid in the attic. Sherrod hid because
he “wanted to turn [him]self in” rather than be arrested. Sherrod claimed that he did not
know anything about the home invasion at 1795 Capri or where the ID card came from.
Sherrod also testified that he had never seen the gun in the photograph identified by
Stafford and S.C. Sherrod said that he had seen S.C. with Dodson multiple times in the
past at the Brandale house. Sherrod claimed that the money found in his pocket came
from gambling and that, on the night of the crimes, he was at a strip club with his father,
brother, and cousins.

                                          - 10 -
        On cross-examination, Sherrod confirmed his belief that the officers were
attempting to frame him for the offenses in this case. Sherrod denied raping S.C. and
contended that officers coerced her to pick him in the photographic lineup. Sherrod
testified that S.C. was not a victim and that she “want[ed] to exclude herself from being
prosecuted.” Sherrod said that the victims’ identification of him and the fact he was
wearing Stafford’s clothes and shoes and had Stafford’s ID card in his pocket were all
coincidences. He also testified that he believed the shoes he was wearing at the time of
his arrest had been “tampered with” by Lieutenant Sloan to test positive for Stafford and
S.C.’s DNA. Sherrod testified that he did not really know Dodson but that he had seen
him a couple of times.

       Dodson presented testimony from Jennifer Hoff, his investigator, who testified
that she interviewed Stafford and Diana at their home on April 30, 2012. Hoff confirmed
that Diana told her “something was fishy about that night” and that Diana and S.C. did
not get along. She also confirmed that Diana stated Stafford had been cheating on S.C.,
that S.C. “might be trying to get back at them,” and that she believed S.C. set them up.
On cross-examination, Hoff confirmed that her testimony was based on a summary of
notes from her interview with Diana and that Diana never reviewed or signed off on the
notes and that the interview had not been recorded.

       At the conclusion of the proof, the Defendants were found guilty of three counts of
especially aggravated kidnapping in counts one through three, two counts of aggravated
robbery in counts four and five, one count of aggravated burglary in count eight, and one
count of employing a firearm during the commission of a dangerous felony in count ten.
Sherrod was found guilty of aggravated rape in count six and Dodson was also found
guilty of aggravated rape in count seven. Sherrod was found guilty of the lesser included
offense of aggravated sexual battery in count seven. Additionally, count twelve, charging
Sherrod with unlawful possession of a handgun as a convicted felon, was dismissed.3
The trial court sentenced Dodson to an effective sentence of forty-four years and Sherrod
to an effective sentence of seventy-three years. The Defendants both filed motions for
new trial, which were denied after an evidentiary hearing on October 8, 2015. This
timely appeal followed.

                                                ANALYSIS

        On appeal, both Defendants challenge (1) the trial court’s denial of their motions
to sever their cases and (2) the admission of the victims’ prior consistent statements at
trial through the testimony of Lieutenant Sloan. Additionally, Sherrod argues that the

        3
         There are two different judgment forms indicating the dismissal of count twelve, one entered in
April 2015 and one in August 2015.
                                                - 11 -
trial court erred by (3) denying his right to a speedy trial; (4) improperly admitting a gun
into evidence at trial; and (5) improperly exercising its duty as thirteenth juror. Dodson
argues that the trial court also erred by (6) finding that the evidence was sufficient to
support two of his especially aggravated kidnapping convictions; (7) allowing improper
closing argument by the State; (8) allowing improper expert witness testimony; and (9)
denying his motion to dismiss count ten of the indictment for failure to provide sufficient
notice of the charge.

       I. Severance. First, both Defendants argue on appeal that the trial court
improperly denied their motions to be tried separately. Dodson contends that he was
prejudiced by Sherrod’s behavior at the sentencing hearing, by Sherrod’s refusal to
accept a settlement contingent on both Defendants’ acceptance, and by Sherrod’s
additional charge of aggravated rape and introduction of the gun allegedly used in that
rape, which Dodson argues “was not relevant to his case and was so prejudicial that the
cases should have been severed for a fair determination of guilt or innocence.” Sherrod
argues that the entry of the gun also prejudiced his case, along with the DNA evidence
against Dodson and “the differences in the indictments against the two defendants.” The
State argues that the severance issue is waived because the Defendants failed to provide a
complete and accurate record on appeal and because Sherrod failed to file a pretrial
motion for severance. The State contends that, waiver notwithstanding, the Defendants
are not entitled to relief.

        Tennessee Rule of Criminal Procedure 14(c)(2) provides that a defendant is
entitled to a severance if it is appropriate or necessary to promote or achieve a fair
determination of that defendant’s guilt or lack thereof. However, the decision to grant or
deny a motion for severance of defendants rests within the sound discretion of the trial
court, and this court will not disturb the trial court’s ruling absent clear abuse of that
discretion. State v. Dotson, 254 S.W.3d 378, 390 (Tenn. 2008). “Where a motion for
severance has been denied, the test to be applied in determining whether the trial court
abused its discretion is whether the defendant was ‘clearly prejudiced’ in his defense as a
result of being tried with his co[-]defendant[.]” State v. Price, 46 S.W.3d 785, 803 (Tenn.
Crim. App. 2000). The defendant must show that he or she “was clearly prejudiced to the
point that the trial court’s discretion ended and the granting of severance became a
judicial duty.” Parham v. State, 885 S.W.2d 375, 383 (Tenn. Crim. App. 1994).

       Dodson filed a pretrial motion for severance on February 26, 2013. However, the
record provided on appeal does not include a written order disposing of his motion or a
transcript of the hearing on the motion. In fact, it is noted in a pretrial hearing transcript
by the court reporter that “a motion for severance was heard as to Dodson, Tuesday,
February 26th, using Jarvis Sherrod as causing a possible outburst, impacting Dodson,
but not requested to be made a part of this transcript.” Sherrod concedes that he did not
                                            - 12 -
file a motion for severance but claims that he joined with Dodson for an “oral request for
severance” on the first day of trial. However, the record reflects the trial court did not
respond to the Defendants’ brief mention of severance, and no further discussion or
objection followed. Although both Defendants raised severance issues in their written
motions for new trial, at the hearing on the motions the trial court simply remarked that
there was “no legal requirement for severance.”

        We conclude that both Defendants have waived this issue by failing to provide an
adequate record on appeal. The appellant has a duty to prepare a record that conveys “a
fair, accurate and complete account of what transpired with respect to those issues that
are the bases of appeal.” Tenn. R. App. P. 24(b). “Where . . . the record is incomplete,
and does not contain a transcript of the proceedings relevant to an issue presented for
review, or portions of the record upon which a party relies, this Court is precluded from
considering the issue.” State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)
(citing State v. Groseclose, 615 S.W.2d 142, 147 (Tenn. 1981); State v. Jones, 623
S.W.2d 129, 131 (Tenn. Crim. App. 1981)). “In the absence of an adequate record on
appeal, we must presume that the trial court’s ruling was supported by the evidence.”
State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584
S.W.2d 811, 812 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230
(Tenn. Crim. App. 1979)). The Defendants have not provided a transcript of the hearing
on Dodson’s motion for severance or any documentation of the motion’s disposition.
Additionally, Sherrod has further waived this issue by failing to make a pretrial motion
for severance. See Tenn. R. Crim. P. 14(1)(A) (providing that a motion for severance
“shall be made before trial” and that “[a] defendant waives severance if the motion is not
timely.”); see also Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as
requiring relief be granted to a party responsible for an error or who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an
error.”). With the present state of the record, we are constrained to presume that the trial
court’s effective denial of the Defendants’ request for severance was correct. See Bibbs,
806 S.W.2d at 790.

        Waiver notwithstanding, the Defendants are still not entitled to relief. Dodson
first argues that he was entitled to severance because he wanted to settle, Sherrod wanted
to proceed to trial, and the State’s offer was contingent on both Defendants pleading
guilty. As the State correctly notes, “[w]hen the state has made an offer of settlement
contingent upon all of the defendants accepting the offer and pleading guilty, a defendant
who wants to accept the offer and plead guilty is not entitled to a severance from a
defendant who has rejected the settlement and opted for trial.” Parham, 885 S.W.2d at
383-84. Dodson also has not proven any prejudice by Sherrod’s behavior at trial,
particularly considering that the only behavior he cites occurred at the sentencing hearing
after he had already been convicted.
                                           - 13 -
       Dodson’s reliance on this court’s holding in State v. Christopher Swift is also
misplaced. No. W2013-00842-CCA-R3-CD, 2015 WL 2128782, at *9 (Tenn. Crim.
App. May 5, 2015). In Christopher Swift, this court held that the trial court improperly
denied a severance based primarily on the disparity of the convicting evidence against
each co-defendant. Id. at *10. This court also held that the trial court improperly
allowed presentation of a gun as demonstrative evidence at trial, which was relevant to
only one defendant’s case. Id. at *15. We found that the presentation of the gun was not
harmless, particularly in light of the fact that the defendants’ cases should have been
severed. Id. However, unlike Christopher Swift, the gun in this case was introduced as
an exhibit at trial and entered into evidence without objection, not used as demonstrative
evidence. Further, the instant gun was found with Sherrod at the time of his arrest, unlike
the gun in Christopher Swift which was completely unrelated to the case. In any event,
the primary holding in Christopher Swift concerned the disparity in the convicting
evidence against the two defendants. In this case, Dodson’s DNA was found on the car
used to drive S.C. to the ATM and on S.C.’s vaginal swab. Dodson’s co-defendant,
McKinney, and a victim, Stafford, also identified him as one of the perpetrators.
Accordingly, Christopher Swift does not apply here and Dodson has not shown prejudice.

       The Defendants’ claims that they were both prejudiced by Sherrod’s additional
rape charge and introduction at trial of the gun he allegedly used in that rape are likewise
without merit. The offenses on trial were so closely connected, involving an extensive
and continuous crime spree inflicted upon the three victims, that it was appropriate to try
the Defendants together. See Tenn. R. Crim. P. 8(c). S.C. testified that she was raped by
both Defendants multiple times, that the assaults occurred in close temporal proximity,
that Sherrod used a gun during one of the assaults, and that the photograph she was
shown at trial looked similar to the gun Sherrod used. Furthermore, “[t]he mere fact that
damaging proof against one defendant is presented will not, by itself, entitle another
defendant to a severance.” State v. Meeks, 867 S.W.2d 375 (Tenn. Crim. App. 1993).

       Lastly, although Sherrod claims that he was prejudiced by the DNA evidence
against Dodson, the DNA evidence did not alone implicate Dodson. Rather, Dodson, as
well as Sherrod, was implicated by an overwhelming accumulation of physical and
circumstantial evidence. Further, the jury clearly considered each Defendant separately
because Sherrod was found guilty of the lesser included offense of aggravated sexual
battery in count seven, which charged him and Dodson with aggravated rape. Sherrod
also has not cited to any evidence introduced against him that would have been
inadmissible in a separate trial. Even considering the merits of the Defendants’ claims,
they are not entitled to relief.



                                           - 14 -
       II. Prior Consistent Statements. The Defendants next argue that the trial court
improperly allowed Lieutenant Sloan to testify about Stafford and S.C.’s statements. The
Defendants contend that neither victim had been impeached as to credibility concerning
those particular statements and that the trial court failed to instruct the jury not to
consider the statement for the truth of the matter asserted. The State responds that the
victims’ credibility was attacked on cross-examination and that the statements were
properly admitted. The State further responds that the Defendants have waived the jury
instruction issue.

       In determining whether a statement is hearsay and, if so, whether it fits within one
of the exceptions to hearsay, a trial court may make factual findings and credibility
determinations in ruling on an evidentiary motion, and “these factual and credibility
findings are binding on a reviewing court unless the evidence in the record preponderates
against them.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015) (citing State v.
Gilley, 297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). However, “[o]nce the trial
court has made its factual findings, the next questions—whether the facts prove that the
statement (1) was hearsay and (2) fits under one [of] the exceptions to the hearsay rule—
are questions of law subject to de novo review.” Kendrick, 454 S.W.3d at 479 (citing
State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling,
196 S.W.3d 703, 721 (Tenn. Ct. App. 2005)).

       “[U]nder general evidentiary rules, prior consistent statements may be admissible,
as an exception to the rule against hearsay, to rehabilitate a witness when insinuations of
recent fabrication have been made, or when deliberate falsehood has been implied.”
State v. Benton, 759 S.W.2d 427, 433 (Tenn. Crim. App. 1988). However, before a prior
consistent statement becomes admissible, “the witness’[s] testimony must have been
assailed or seriously questioned to the extent that the witness’[s] credibility needs shoring
up.” Id. at 433-34. “The impeaching attack on the witness’s credibility need not be
successful for admissibility of the prior consistent statement.” State v. Albert R. Neese,
No. M2005-00752-CCA-R3-CD, 2006 WL 3831387, at *6 (Tenn. Crim. App. Dec. 15,
2006). “A prior consistent statement used to rehabilitate a witness is not hearsay as it is
not offered for the truth of the matter asserted.” Id. (citing Tenn. R. Evid. 801(c)).

       Lieutenant Sloan interviewed S.C. at the hospital immediately after the offenses
and testified about S.C.’s statement that three men robbed her and her boyfriend and that
two of the men raped her. Lieutenant Sloan also testified regarding his interview with
Stafford, in which Stafford recalled being approached by two armed men outside his
house, being beaten, seeing his girlfriend raped by Sherrod in the living room, and that
Stafford recognized the third man’s voice. While Lieutenant Sloan was testifying about
Stafford’s statement, the Defendants objected to hearsay and argued that “none of that
has been disputed as inconsistent” and that “[n]o one challenged [S.C.] or Mr. Stafford on
                                           - 15 -
any of those facts” so the victims’ testimony was being inappropriately bolstered. The
trial court ruled that it was not hearsay because it was being offered “to show the
credibility of Mr. Stafford” and not for the truth of the matter asserted. The trial court
further noted that Stafford had identified both of the Defendants, which put his credibility
at issue and allowed the State “to show prior consistent statements by him.”

       Stafford and S.C. were both vigorously cross-examined regarding contradictions
in their trial testimony and their statements to police and investigators. Each cross-
examination directly challenged the victims’ ability to identify the Defendants and the
victims’ credibility. Counsel repeatedly inferred that Stafford and S.C.’s identifications
of the Defendants were tainted by police officer suggestions and media coverage, that
S.C. was not a victim, and that S.C. was an accomplice in the crimes. Counsel also
questioned both victims’ recollection of the events by repeatedly asking about their drug
use on the day of the offenses. As a result, the victims’ statements to Lieutenant Sloan
were admissible as prior consistent statements to rehabilitate their credibility.
Furthermore, Lieutenant Sloan’s testimony did not exceed the scope of rehabilitation
warranted by the cross-examinations. Stafford and S.C.’s statements to Lieutenant Sloan
did not include any additional details not found in their own testimony, and McKinney’s
testimony also provided corroboration of the statements. The trial court did not abuse its
discretion by admitting Lieutenant Sloan’s testimony. Finally, a review of the record
reveals that the Defendants did not request a limiting instruction. Because an instruction
was not requested, the issue is waived. See Tenn. R. App. P. 36(a); Tenn. R. Evid. 105;
see also State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000) (“A trial court, however,
generally has no duty to exclude evidence or to provide a limiting instruction to the jury
in the absence of a timely objection.”); State v. Robinson, 971 S.W.2d 30, 43 (Tenn.
Crim. App. 1997). The Defendants are not entitled to relief.

       III. Speedy Trial. Next, Sherrod argues that his right to a speedy trial was
violated. He asserts that the trial delay “contributed to material[] and irreversible[]
changes in circumstance in both his mental health and his defense.” The State responds
that Sherrod has failed to establish a speedy trial violation and that the trial court properly
denied relief.

       Sherrod was arrested on August 10, 2010, and indicted by a Shelby County Grand
Jury on February 5, 2011. The first trial date mentioned in the record is March 4, 2013.
On February 25, 2013, Dodson filed a motion for continuance requesting more time to
obtain additional DNA evidence because settlement negotiations with the State had
failed. On February 28, 2013, Sherrod filed a notice of alibi defense. At a March 1, 2013
hearing, Dodson’s counsel informed the trial court that “[b]oth parties have documents
that we are trying to get a hold of before this is tried.” Sherrod’s counsel also informed
the court that he “will certainly go on the record and say that we have no objection to a
                                            - 16 -
continuance.” The parties agreed to a report date of April 3, 2013, but not a new trial
date. The record does not reflect anything else occurring for approximately nineteen
months until Sherrod’s counsel requested another continuance on November 6, 2014, to
complete Sherrod’s competency evaluation. All parties agreed that the new trial date
would be contingent on the completion of Sherrod’s competency evaluation. At the
hearing it was noted that trial was currently set for February 23, 2015. Sherrod never
filed a motion for a speedy trial, and the parties proceeded to trial on April 6, 2015.
Sherrod was convicted on April 13, 2015.

       At the motion for new trial hearing, Sherrod informed the trial court, for the first
time, that one of his alibi witnesses, Warner Gaters, had passed away on January 12,
2014, and that the loss of this witness prejudiced his defense. Sherrod also argued that
his incarceration had caused him to suffer mental health problems. The trial court found
that Sherrod never requested a speedy trial and that, if he had, the court “would have tried
it two weeks later.” As to the notice of alibi, the court said that Sherrod likewise never
brought this issue to the court’s attention and that the trial court “d[i]dn’t know who Mr.
Gaters [wa]s.” The trial court also noted that Sherrod had never raised any issue
regarding his mental or physical status.

        Both the Sixth Amendment to the United States Constitution and Article I, Section
9 of the Tennessee Constitution guarantee an accused the right to a speedy trial. See U.S.
Const. amend VI; Tenn. Const. art. 1, § 9. The right to a speedy trial is also statutorily
protected in Tennessee. See T.C.A. § 40-14-101 (“In all criminal prosecutions, the
accused is entitled to a speedy trial and to be heard in person and by counsel.”). In
addition, Rule 48(b) of the Tennessee Rules of Criminal Procedure provides that the court
may dismiss the indictment if there is unnecessary delay in bringing a defendant to trial.
Tenn. R. Crim. P. 48(b). “The purpose of the speedy trial guarantee is to protect the
accused against oppressive pre-trial incarceration, the anxiety and concern due to
unresolved criminal charges, and the risk that evidence will be lost or memories
diminished.” State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997) (citing Doggett v. United
States, 505 U.S. 647, 654 (1992)).

       The constitutional right to a speedy trial is not implicated until there is an arrest or
a formal accusation from a grand jury. State v. Simmons, 54 S.W.3d 755, 758-59 (Tenn.
2001) (citing Utley, 956 S.W.2d at 491). When evaluating claims of a speedy trial
violation, we apply the four-part balancing test set forth in Barker v. Wingo, 407 U.S.
514 (1972). See also State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1977) (adopting the
Barker analysis in Tennessee). The Barker factors are: (1) the length of the delay; (2) the
reason for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the
prejudice to the defendant because of the delay. Barker, 407 U.S. at 530; Simmons, 54
S.W.3d at 759. “The factors relevant to a speedy trial inquiry are interrelated and depend
                                            - 17 -
upon the particular circumstances of each case.” Simmons, 54 S.W.3d at 762 (declining
to articulate a bright-line rule for speedy trial claims); see also Barker, 407 U.S. at 530
(“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc
basis.”). If a reviewing court concludes that the accused has been denied the right to a
speedy trial, the only remedy is reversal of the conviction and dismissal of the indictment.
See Barker, 407 U.S. at 522; Bishop, 493 S.W.2d at 83. We review a trial court’s
determination of whether a defendant’s right to a speedy trial was violated under an abuse
of discretion standard. State v. Hudgins, 188 S.W.3d 663, 667 (Tenn. Crim. App. 2005)
(citing State v. Jefferson, 938 S.W.2d 1, 14 (Tenn. Crim. App. 1996)); State v. Easterly,
77 S.W.3d 226, 236 (Tenn. Crim. App. 2001); State v. Gai D. Kuot, No. M2012-01884-
CCA-R3-CD, 2013 WL 4539020, at *10 (Tenn. Crim. App. Aug. 26, 2013).

        A. Length of Delay. We first consider the length of the delay. The Tennessee
Supreme Court has held that “either a formal indictment or information or else the actual
restraint imposed by arrest and holding to answer a criminal charge” triggers the speedy
trial analysis. Utley, 956 S.W.2d at 492 (quoting State v. Wood, 924 S.W.2d 342, 345
(Tenn. 1996)); see also State v. Baker, 614 S.W.2d 352, 354 (Tenn. 1981) (holding that
“no speedy trial rights arise until after formal accusation, either by arrest or by grand jury
action.”). A post-accusation delay of one year or more is “presumptively prejudicial” and
will trigger a speedy trial inquiry. Utley, 956 S.W.2d at 494. “The reasonableness of the
length of the delay depends on the complexity of the case.” Wood, 924 S.W.2d at 346.
“[D]elay that can be tolerated for ‘an ordinary street crime’ is generally much less than
for a serious, complex felony charge.” Easterly, 77 S.W.3d at 235 (quoting Barker, 407
U.S. at 530-31). However, the presumption that the delay has prejudiced the defendant
intensifies over time. Simmons, 54 S.W.3d at 759 (citing Doggett, 505 U.S. at 652;
Utley, 956 S.W.2d at 494; Wood, 924 S.W.2d at 346).

       Here, Sherrod was arrested on August 10, 2010, and indicted on February 5, 2011.
Trial began on April 6, 2015, four years and eight months after Sherrod was first arrested.
While this delay triggers a speedy trial inquiry, the delay is not per se unreasonable when
compared to other cases. See Wood, 924 S.W.2d at 346 (delay of thirteen years did not
violate right to speedy trial); see also Barker, 407 U.S. at 533-36 (five-year delay
between arrest and trial did not violate right to speedy trial). This case involved a twelve-
count indictment for twenty-seven felony charges against three defendants. It also
involved numerous pre-trial motions, hearings, and continuances requested by the State
and the Defendants. In our view, the length of the delay, while extensive, does not weigh
heavily against the State.

      B. Reason for Delay. The next factor to consider is the reason for the delay. The
reasons for post-accusation delay generally fall within four categories: (1) intentional
delay to gain a tactical advantage over the defense or to harass the defendant; (2)
                                            - 18 -
bureaucratic indifference or negligence, including lack of due diligence; (3) delay
necessary for the fair and effective prosecution of the case; and (4) delay caused, or
acquiesced in, by the defense. Wood, 924 S.W.2d at 346-47; see also Simmons, 54
S.W.3d at 759. Deliberate delay is weighed heavily against the State. Negligent delay is
also weighed against the State, but less heavily than intentional delay. Delay necessary
for effective prosecution, such as locating a missing witness, is considered valid and not
weighed against either party. A delay caused or agreed to by the defendant is weighed
against the defendant. Wood, 924 S.W.2d at 346-47; see also Barker, 407 U.S. at 531.

        The first trial delay was requested by Dodson to obtain more DNA evidence
because settlement negotiations with the State had failed. Sherrod’s counsel acquiesced
to the request. The second continuance was requested by Sherrod to complete a
competency evaluation. There is no information provided about this evaluation in the
record or how long it took to complete. However, based on his acquiescence to the first
trial delay and his request of the second delay, we find that this factor weighs against
Sherrod.

       C. Assertion of Right. The third factor to evaluate is whether the accused asserted
the right to a speedy trial. Assertion of the right weighs strongly in favor of the
defendant, while failure to assert the right will make it difficult to prove that the right has
been denied. Simmons, 54 S.W.3d at 760 (citing Barker, 407 U.S. at 531-32). The
record reflects, Sherrod concedes, and the trial court emphasized, that Sherrod never
asserted his right to a speedy trial. This factor also weighs against Sherrod.

       D. Prejudice from Delay. The final factor, the prejudice to the accused caused by
the delay, is the most important to consider in the speedy trial inquiry. Simmons, 54
S.W.3d at 760 (citing Barker, 407 U.S. at 532; Wood, 924 S.W.2d at 348; Bishop, 493
S.W.2d at 85). The prejudice factor is assessed in light of the interests that the right to
speedy trial is designed to protect. Barker, 407 U.S. at 532 (identifying three interests of
the accused: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the defense will be
impaired.”); see also Simmons, 54 S.W.3d at 760 (citing Bishop, 493 S.W.2d at 85). The
Tennessee Supreme Court has observed that “the most important issue concerning
prejudice to the defendant is the impairment of the ability to prepare a defense.” Berry,
141 S.W.3d at 568 (citing Baker, 614 S.W.2d at 356); see also Barker, 407 U.S. at 532
(“Of these, the most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.”). “Faded memories, erosion or
loss of potentially exculpatory evidence, and loss of potentially favorable witnesses are
all possible results of a lengthy delay.” Wood, 924 S.W.2d at 346.



                                            - 19 -
       Courts have recognized the difficulty in establishing impairment to the defense
and have held that “affirmative proof of particularized prejudice is not essential to every
speedy trial claim.” See Doggett, 505 U.S. at 654-55 (finding delay of eight-and-a-half
years between indictment and arrest caused by government’s negligence to be
“excessive” and a violation of defendant’s speedy trial rights though defendant could not
demonstrate specific prejudice). Nevertheless, in the majority of cases, “courts will still
look for a demonstration of actual prejudice.” Easterly, 77 S.W.3d at 238; Wood, 924
S.W.2d at 348; State v. Roger David Browder, No. 02C01-9606-GS-00201, 1998 WL
47877 (Tenn. Crim. App. Feb. 9, 1998) (“[E]ven though affirmative proof of
particularized prejudice is not essential to every speedy trial claim . . . we find it difficult
to evaluate the degree to which the delay prejudiced the defendant absent some specific
information about the deprivations which he incurred.”).

       Here, Sherrod argues that the nearly five-year delay in his case prejudiced him by
impairing his defense and causing mental anguish. Specifically, he asserts that “his level
of personal anxiety continued to increase during the ongoing pendency of the case” and
that his mental condition further deteriorated as a result of the death of his alibi witness,
Gaters. However, Sherrod never mentioned Gaters or any alibi witness at any hearings or
motions included in the record, and the trial court noted that it “d[i]dn’t know who Mr.
Gaters [wa]s” and that the issue had “never been brought before [the trial court] at all.”
On appeal, Sherrod also relies on facts outside the record regarding his medical
diagnoses, prescriptions, and mental health evaluations. The trial court found at the
motion for new trial hearing that none of Sherrod’s claims about his mental health were
ever raised before or during trial. Further, considering Sherrod’s extensive criminal
history and experience with the criminal justice system, and his four additional sets of
charges that were pending while he was incarcerated for the instant case, we cannot
conclude that any anxiety suffered was so great as to outweigh the other factors in the
analysis.

       After applying the Barker balancing test, we conclude that the Defendant’s right to
a speedy trial was not violated. As we have previously noted, the factors are interrelated
and depend on the particular circumstances of the case. We cannot ignore that Sherrod
never asserted his right to a speedy trial, acquiesced in delaying trial at least once, and
requested another delay. Sherrod has also failed to establish any prejudice to his defense
as a result of the delay. Accordingly, the Defendant has failed to establish a speedy trial
violation.

       IV. Admission of Gun. Next, Sherrod argues that the trial court improperly
admitted a gun into evidence at trial. He contends that the gun was irrelevant and
unfairly prejudicial. The State responds that the gun was relevant because it was

                                             - 20 -
recovered from the home where McKinney and Sherrod were staying and because the
victim initially believed it to be the weapon used in her rape.

       “Generally, the admissibility of evidence rests within the trial court’s sound
discretion, and the appellate court does not interfere with the exercise of that discretion
unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d
799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial
court is found to have abused its discretion when it applies “an incorrect legal standard or
reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Lewis, 235 S.W.3d at 141 (quoting State v. Ruiz, 204 S.W.3d 772, 778
(Tenn. 2006)).

       To be admissible, all evidence must be relevant to an issue the jury must decide.
State v. Thomas, 158 S.W.3d 361, 394 (Tenn. 2005) (citations omitted); State v. Vann,
976 S.W.2d 93, 102 (Tenn. 1998). Relevant evidence is “evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
401. However, relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Tenn. R. Evid. 403. Unfair prejudice has been defined as “‘[a]n
undue tendency to suggest decision on an improper basis, commonly, though not
necessarily an emotional one.’” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978).

       As an initial matter, Sherrod did not object at trial to the introduction of either the
photograph of the gun or the gun itself. Accordingly, he risks waiver of the issue. See
Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”); see also Tenn.
R. Evid. 103(a)(1) (requiring a timely objection as a prerequisite to a finding of error
based on the trial court’s admission of evidence). Potential waiver notwithstanding,
Sherrod is not entitled to relief.

       At trial, S.C. was presented with a photograph of the gun which she identified as
the gun used to rape her; she later admitted that the gun may not have been the actual gun
used to rape her but that “[i]t look[ed] awfully similar.” Stafford also identified the gun
as that used to rape S.C., but acknowledged on cross-examination that he may have been
mistaken about the identification. Lieutenant Sloan testified that the gun was found in
the closet where Sherrod was hiding when he was arrested, along with other relevant
evidence. During closing argument, the State conceded that the gun was probably not the
gun actually used to rape S.C. Sherrod and McKinney both denied that the gun in the
                                            - 21 -
photograph was the gun used in the offenses. At the motion for new trial hearing, the
trial court found that admission of the gun was relevant because the gun was found with
Sherrod when he was arrested. The court also noted that defense counsel never raised
this issue at trial and that “it’s up to the jury to decide what use they’re to make of that
exhibit.” Based on the record, we cannot conclude that the trial court abused its
discretion. The gun was relevant because it was found with Sherrod when he was
arrested and the victim initially identified the gun as the gun used to rape her.
Furthermore, the assault performed with the gun was far more inflammatory than the gun
itself and any prejudice resulting therefrom. The jury was allowed to weigh the evidence
accordingly. Sherrod is not entitled to relief.

        V. Thirteenth Juror. Sherrod also claims that the trial court improperly
exercised its duty as the thirteenth juror by “repeatedly remarking on the lack of a
motion, or an objection, as the foundation for its silence on an issue.” The State responds
that the trial court fulfilled its duty to act as the thirteenth juror.

         Tennessee Rule of Criminal Procedure 33(d) provides that “[t]he trial court may
grant a new trial following a verdict of guilty if it disagrees with the jury about the weight
of the evidence.” This court has held that Rule 33(d) “is the modern equivalent to the
‘thirteenth juror rule,’ whereby the trial court must weigh the evidence and grant a new
trial if the evidence preponderates against the weight of the verdict.” State v. Blanton,
926 S.W.2d 953, 958 (Tenn. Crim. App. 1996). When acting as the thirteenth juror, the
trial judge is not required to make an explicit statement on the record. State v. Carter,
896 S.W.2d 119, 122 (Tenn. 1995). Instead, the reviewing court may presume that the
trial judge has fulfilled its duty as the thirteenth juror when it overrules a motion for new
trial. Id. Only if the record contains statements by the trial court expressing
dissatisfaction or disagreement with the weight of the evidence or the jury’s verdict or
indicating that the trial court absolved itself of its responsibility to act as the thirteenth
juror may an appellate court reverse the trial court’s judgment. Id. (citations omitted).
Otherwise, appellate review is limited to sufficiency of the evidence pursuant to
Tennessee Rule of Appellate Procedure 13(e). State v. Burlison, 868 S.W.2d 713, 718-19
(Tenn. Crim. App. 1993). If the reviewing court concludes that the trial court failed to
fulfill its duty as the thirteenth juror, the appropriate remedy is to grant a new trial. State
v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995).

       First, we note that the trial transcript ends before the jury returned its verdict and,
therefore, does not include any statement by the trial court about acting as thirteenth
juror. However, the transcript from the motion for new trial hearing shows that the trial
court recalled sufficient details from this case and fulfilled his duty as the thirteenth juror
by denying both Defendants’ motions for new trial and expressing his agreement with the
jury’s verdict. See Carter, 896 S.W.2d at 122. Further, the fact that Sherrod waived
                                            - 22 -
certain issues by failing to object at trial or file appropriate motions does not relate to the
trial court’s duty as thirteenth juror. The trial court properly fulfilled its role as the
thirteenth juror, and, therefore, this issue is not subject to appellate review.

       VI. Sufficiency of the Evidence. Next, Dodson argues that the trial court erred
by finding that the evidence was sufficient to support his convictions for the especially
aggravated kidnappings of Stafford and Diana. Specifically, Dodson, citing State v.
White, 362 S.W.3d 559 (Tenn. 2012), argues that the evidence is insufficient to sustain
his convictions for especially aggravated kidnapping because the State failed to prove
that the confinement of the victims was to a greater degree than necessary to commit the
offense of aggravated robbery. The State responds that the evidence showed both victims
were restrained by threats of violence for far longer than required to complete the
robberies.

        When an appellate court reviews the sufficiency of the evidence, it must consider
whether, considering the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). If the evidence is
insufficient to support a finding of guilt beyond a reasonable doubt, the conviction must
be set aside. Tenn. R. App. 13(e). On review, the State is entitled to the strongest
legitimate view of the evidence and to all reasonable and legitimate inferences that may
be drawn from it. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). The appellate
court may not re-weigh the evidence or substitute its inferences for those drawn by the
trier of fact. Smith, 24 S.W.3d at 279. The trier of fact resolves questions about the
credibility of witnesses, the weight and value of the evidence, as well as all factual issues
raised by the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). Accordingly,
“[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.”
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Further, a guilty verdict removes the
presumption of innocence and replaces it with a presumption of guilt, and the defendant
bears the burden of demonstrating that the evidence is insufficient to support the verdict.
State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

       To sustain the conviction for especially aggravated kidnapping, the State had to
prove beyond a reasonable doubt that Dodson knowingly removed or confined the victim
so as to interfere substantially with the victim’s liberty and that the removal or
confinement was accomplished with a deadly weapon. See T.C.A. §§ 35-13-302(a)(1), -
305(a)(1). In State v. White, the Tennessee Supreme Court concluded that the Tennessee
kidnapping statutes were not meant to apply to a removal or confinement of a victim that
was “essentially incidental” to the accompanying felony and that this inquiry was a
factual question for a properly instructed jury to resolve. 362 S.W.3d at 576-78. This is
                                            - 23 -
because the “essentially incidental” language in State v. Anthony, 817 S.W.2d 299 (Tenn.
1991), which previously informed appellate due process review, was now a part of a
material element of kidnapping. White, 362 S.W.3d at 578 (“[W]e are merely providing
definition for the element of the offense requiring that the removal or confinement
constitute a substantial interference with the victim’s liberty.”). Accordingly, to protect
the defendant’s due process rights, trial courts must instruct juries to determine “whether
the removal or confinement is, in essence, incidental to the accompanying felony or, in
the alternative, is significant enough, standing alone, to support a conviction.” Id. at 578.

        We conclude that the evidence is sufficient to sustain the jury’s verdict. Viewed
in the light most favorable to the State, the evidence established that Dodson, along with
Sherrod and McKinney, held Stafford and Diana at gunpoint and took property from their
house, from Stafford’s person, and from Stafford’s bank account at an ATM. Stafford
was beaten and threatened and Stafford and Diana were both bound at the wrists and
ankles with cords and tape. Diana was forced to lie facedown on the couch during the
entire episode, and Stafford was forced to lie on the living room floor until they bound
him and shoved him in the bathroom closet. From this evidence, the jury could have
easily concluded that the confinement of Stafford and Diana prevented them from
summoning help and greatly increased the threat of harm. Although Dodson argues that
they were only loosely bound and could have freed themselves if they wanted to, the
victims testified that they complied with the Defendants’ demands because the
Defendants threatened to harm Stafford and Diana. Even if the victims were not
physically bound at all, they were held captive by the Defendants’ demands and threats of
violence. The victims’ testimony, which was accredited by the jury, more than
adequately establishes that Dodson unlawfully confined the victims and that this
confinement was not merely incidental to the robberies. Therefore, the evidence is
sufficient to sustain Dodson’s convictions for two counts of especially aggravated
kidnapping.

       VII. Closing Arguments. Next, Dodson argues that the State made inappropriate
comments during its rebuttal closing argument, including commenting on witness
credibility, addressing issues broader than the guilt or innocence of the Defendants,
commenting on Dodson’s right not to testify, repeatedly insulting the defense theory, and
making improper appeals for sympathy. The State responds that the issues are waived
because Dodson did not properly object at trial and that, regardless, the comments were
not improper and did not prejudice the jury’s verdict.

       The Tennessee Supreme Court has noted that “[c]losing argument is a valuable
privilege that should not be unduly restricted.” State v. Stephenson, 195 S.W.3d 574, 603
(Tenn. 2006) (citing State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001)). The trial court has
substantial discretion in controlling the course of arguments and will not be reversed
                                           - 24 -
unless there is an abuse of that discretion. Id. In addition, prosecutorial misconduct does
not constitute reversible error absent a showing that it has affected the outcome of the
trial to the prejudice of the defendant. Id. (citing Terry v. State, 46 S.W.3d 147, 156
(Tenn. 2001)). However, an attorney’s comments during closing argument “‘must be
temperate, must be predicated on evidence introduced during the trial of the case, and
must be pertinent to the issues being tried.’” State v. Gann, 251 S.W.3d 446, 459 (Tenn.
Crim. App. 2007) (quoting State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). In order
to be entitled to relief on appeal, the defendant must “show that the argument of the
prosecutor was so inflammatory or the conduct so improper that it affected the verdict to
his detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996).

        This court must consider the following factors when determining whether the
argument of the prosecutor was so inflammatory or improper to negatively affect the
verdict: (1) the conduct complained of under the facts and circumstances of the case; (2)
any curative measures undertaken by the court or prosecutor; (3) the intent of the
prosecutor in making the challenged statements; (4) the cumulative effect of the improper
conduct and any other errors in the record; and (5) the relative strength or weakness of
the case. State v. Goltz, 111 S.W.3d 1, 5-6 (Tenn. Crim. App. 2003) (citing Judge v.
State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

       As an initial matter, Dodson made no objection at trial to any of the specific
comments he now complains of on appeal. Although Dodson makes numerous
complaints about the State’s rebuttal closing argument, he did not object until after the
State’s rebuttal closing argument and on entirely different grounds. Dodson’s counsel
objected that “there was a comment at the end that Mr. Dodson raped her twice. Based
on the election of offenses I would ask for a curative instruction as to that.” The trial
court overruled his objection and Dodson raised no further objections. Dodson’s failure
to make contemporaneous objections at the time the comments occurred resulted in
waiver of these issues. See Tenn. R. App. P. 36(a) ( “Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”); see also Tenn. R. Evid. 103(a)(1) (requiring a timely objection as a
prerequisite to a finding of error based on the trial court’s admission of evidence).
Because Dodson has waived this issue, he is not entitled to relief unless the prosecutor’s
comments rose to the level of plain error. See Tenn. R. App. P. 36(b) (“When necessary
to do substantial justice, an appellate court may consider an error that has affected the
substantial rights of a party at any time, even though the error was not raised in the
motion for a new trial or assigned as error on appeal.”); Smith, 24 S.W.3d at 282-83; see
also Gann, 251 S.W.3d at 458-59 (concluding that the defendant’s failure to make a
contemporaneous objection during closing argument waived plenary review of the issue

                                           - 25 -
and precluded relief absent plain error). Additionally, we note that Dodson has made no
plain error argument on appeal.

       In order for this court to find plain error, “(a) the record must clearly establish
what occurred in the trial court; (b) a clear and unequivocal rule of law must have been
breached; (c) a substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of the error is
‘necessary to do substantial justice.’” Smith, 24 S.W.3d at 282 (quoting State v.
Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). “[T]he presence of all five
factors must be established by the record before this Court will recognize the existence of
plain error, and complete consideration of all the factors is not necessary when it is clear
from the record that at least one of the factors cannot be established.” Id.

       Dodson complains of a number of comments made by the prosecutor during
closing argument. First, he contests the following comments made by the State during its
rebuttal closing argument regarding the credibility of Lieutenant Sloan:

       . . . [I]t is absolute garbage to suggest that Detective Sloan would put his
       reputation on the line, twenty-five years of police work . . . . He’s not going
       to put himself on the line to get this guy and to get that guy.

        The record reflects that Dodson extensively questioned Lieutenant Sloan’s
credibility during his closing argument. During closing argument, Dodson’s counsel
made the following statements: “Maybe you believe Lieutenant Sloan but when it starts
to become a pattern, at what point is it not the truth anymore;” “[Lieutenant Sloan] lied
about being present at the lineups;” and “[Lieutenant Sloan]’s done this twenty-five
years. It’s no big deal. I’m a lieutenant. Nobody’s checking my work.” Dodson’s
counsel also accused Lieutenant Sloan of altering the photographic lineups and deleting
the alleged ATM video, stating, “Did it exist or did he delete that too?” Accordingly, the
State’s remarks were in direct response to Dodson’s counsel’s remarks about Lieutenant
Sloan’s credibility and were not improper.

       Dodson next challenges the following comments made by the State during its
rebuttal closing argument regarding the credibility of S.C.:

       Credibility, it takes a lot of courage for a rape victim to go through what
       [S.C.] has gone . . . Then four and a half years later she has to take the
       witness stand and be subject again to cross-examination where she’s
       accused of being an accomplice in her own rape. It takes courage. It’s no
       wonder that women don’t want to report rapes.

                                           - 26 -
       As we have previously noted, Dodson continually attacked S.C.’s credibility
throughout trial as well and, in fact, based his defense theory on the idea that S.C. was an
accomplice, not a victim. Therefore, S.C.’s credibility was fairly raised by the evidence
and properly discussed by the prosecutor during closing argument. Likewise, the State’s
comment about women reporting rapes was made while discussing S.C.’s testimony that
she was raped by the Defendants. Dodson claims that this comment “inject[ed] issues
broader than the guilt or innocence of the accused.” In our view, although this statement
was not extremely pertinent to the issues in this case, it was made in response to
Dodson’s claim during his closing argument that he did not rape S.C. without addressing
the fact that his DNA was found on her vaginal swab. Further, we decline to find that
this one isolated statement requires plain error relief.

       Next, Dodson argues that the prosecutor improperly commented on his right to
remain silent by stating that, “I’m not even sure of what their version of it is.” The State
followed this by stating, “To be honest with you I guess [Dodson] just wasn’t there
despite the fact that [Dodson’s] DNA was there, despite the fact that [Dodson’s] palm
print was on the car that they used to take [S.C.] to the ATM.” Accordingly, we find that
the statement was not a comment on Dodson’s right to remain silent but rather an
acknowledgment that the physical evidence presented at trial established that Dodson was
one of the perpetrators even though Dodson alleged that he was not at 1795 Capri on the
night of the offenses.

       Finally, Dodson also claims that the State repeatedly called the defense’s theory
“‘bogus’” and “‘garbage’” to “improperly inflame the jury,” and that the State made
improper “appeals for sympathy.” However, Dodson provides no analysis in support of
these claims and, upon review, we find that these comments could not have affected the
jury’s verdict, particularly in light of the overwhelming evidence of Dodson’s guilt.
Accordingly, we decline to find plain error because a clear and unequivocal rule of law
was not breached, a substantial right of the accused was not adversely affected, and
consideration of the error is not necessary to do substantial justice. See Smith, 24 S.W.3d
at 282. Dodson is not entitled to relief.

       VIII. Expert Witness Testimony. Next, Dodson argues that the trial court
improperly allowed MSRAC examiner Judy Pinson to testify outside her scope of
expertise and without a proper foundation. Alternatively, Dodson argues that the trial
court should have granted a continuance to obtain the original MSRAC examiner as a
witness.

       The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. Rule 702, which addresses the need for expert testimony
and the qualifications of the expert, provides: “If scientific, technical, or other specialized
                                            - 27 -
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.” The Tennessee
Supreme Court defined the role of trial courts in determining the admissibility of expert
testimony:

       Trial courts act as gatekeepers when it comes to the admissibility of expert
       testimony. Their role is to ensure that an expert, whether basing testimony
       upon professional studies or personal experience, employs in the courtroom
       the same level of intellectual rigor that characterizes the practice of an
       expert in the relevant field. A court must assure itself that the expert’s
       opinions are based on relevant scientific methods, processes, and data, and
       not upon an expert’s mere speculation. The court’s reliability analysis has
       four general inter-related components: (1) qualifications assessment, (2)
       analytical cohesion, (3) methodological reliability, and (4) foundational
       reliability.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotation
marks omitted). The witness’s necessary expertise may be acquired through formal
education or life experiences. Neil P. Cohen et al., Tennessee Law of Evidence § 7.02[4]
at 7-21. However, the witness must possess such superior skill, experience, training,
education, or knowledge within the particular area that his or her degree of expertise
exceeds the scope of common knowledge and experience possessed by the average
person. Id. (citations omitted).

       Tennessee Rule of Evidence 703 provides guidance regarding the proper bases for
expert testimony:

       The facts or data in the particular case upon which an expert bases an
       opinion or inference may be those perceived by or made known to the
       expert at or before the hearing. If of a type reasonably relied upon by
       experts in the particular field in forming opinions or inferences upon the
       subject, the facts or data need not be admissible in evidence. Facts or data
       that are otherwise inadmissible shall not be disclosed to the jury by the
       proponent of the opinion or inference unless the court determines that their
       probative value in assisting the jury to evaluate the expert’s opinion
       substantially outweighs their prejudicial effect. The court shall disallow
       testimony in the form of an opinion or inference if the underlying facts or
       data indicate lack of trustworthiness.



                                           - 28 -
       “Generally speaking, the trial court is afforded broad discretion in resolving
questions concerning the admissibility of expert testimony; in consequence, we will not
overturn its ruling on appeal absent a finding that it abused its discretion.” State v.
Ferrell, 277 S.W.3d 372, 378 (Tenn. 2009) (citing State v. Copeland, 226 S.W.3d 287,
301 (Tenn. 2007); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)). “A trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its decision on a clearly erroneous assessment of the evidence, or
employs reasoning that causes an injustice to the complaining party.” Scott, 275 S.W.3d
at 404-05 (citing Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008)).

        Dodson first argues that Pinson’s testimony was improper because she had no
personal knowledge of S.C.’s examination and, accordingly, no foundation for her
testimony. In support, Dodson cites to Tennessee Rule of Evidence 701, regarding lay
witness testimony. However, Pinson was clearly admitted as an expert witness at trial,
and, accordingly, Rule 701 does not apply. See Tenn. R. Evid. 701(a) (specifying that
the rule only applies “[i]f a witness is not testifying as an expert.”). Additionally,
Dodson’s claim that Tennessee Rule of Evidence 602 regarding witness personal
knowledge invalidates Pinson’s testimony is without merit, as “experts may base an
opinion on the factual findings of others.” Tenn. R. Evid. 602, Advisory Comm’n
Cmnts.; see also Tenn. R. Evid. 703. During Pinson’s testimony at trial, Dodson’s
counsel acknowledged that Pinson could properly testify about S.C.’s MSARC report and
stated that “the defense agreed that Ms. Pinson can testify to what the records say . . . she
can give opinion testimony now.” Pinson was admitted as an expert without objection
and the parties agreed to a redacted version of the MSARC report to exclude any
potential hearsay. Dodson’s contention is without merit.

       Dodson next argues that Pinson’s testimony exceeded the scope of her expertise.
Pinson was admitted as an expert by the trial court in the area of “sexual forensic nurse
examiner.” Pinson was asked about the MSARC report’s “extra genital level of acute
injuries,” and Pinson responded in part that S.C. “had a black eye.” Dodson objected and
argued that Pinson’s testimony “should be limited to injuries in the area of genital [sic]
the areas that are confined to purposes of sexual practice.” The trial court overruled the
objection, finding that, “I think in deciding whether or not someone gave consent or not,
whether or not they had a black eye would be very relevant to a sexual assault so I don’t
see any problem with that at all.” In her subsequent testimony, Pinson confirmed that
S.C.’s black eye was consistent with her reported assault, which was being “hit with a
gun.” We agree with the trial court that Pinson’s testimony related to S.C.’s sexual
assault and was not an improper opinion. Further, this testimony was read directly from
the MSARC report, which the parties agreed to admit as evidence after extensive
redaction.
                                           - 29 -
        Finally, Dodson argues that the trial court erred by denying his request for a
continuance to obtain testimony from the original MSARC nurse who treated S.C. On
the first day of trial, the State informed the trial court that the MSARC nurse that treated
S.C. no longer lived in Tennessee and would not be available to testify. Instead, the State
intended to introduce Pinson as an expert witness and custodian of the records to testify
about S.C.’s MSARC report. Sherrod’s counsel objected, arguing that the examining
nurse’s testimony was crucial and requesting a continuance to produce her. The trial
court questioned whether the examining nurse would be a material witness for the
defense and noted that no affidavit of materiality had been filed. Dodson’s counsel
joined in Sherrod’s objection, and, when asked whether he wanted a continuance,
responded “we don’t want a continuance to call the witness. We just want the proper
witness called who made the observations.” Neither Defendant offered argument as to
why the original nurse’s testimony would be material to their defense.

        The decision whether to grant a continuance “rests within the sound discretion of
the trial court.” State v. Morgan, 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). The
Tennessee Supreme Court has held that the reviewing court should “reverse the denial of
a continuance only if the trial court abused its discretion and the defendant was
prejudiced by the denial.” State v. Thomas, 158 S.W.3d 361, 392 (Tenn. 2005). An
abuse of discretion is shown when “the failure to grant a continuance denied [the]
defendant a fair trial or [when] it could be reasonably concluded that a different result
would have followed had the continuance been granted.” Id. (quoting State v. Hines, 919
S.W.2d 573, 579 (Tenn. 1995)). In other words, this court will reverse a denial of a
motion to continue only upon a showing that the petitioner “did not have a fair trial and
that a different result would or might reasonably have been reached had there been a
different disposition of the application for a continuance.” Baxter v. State, 503 S.W.2d
226, 230 (Tenn. Crim. App. 1973); see also State v. Caughron, 855 S.W.2d 526, 534
(Tenn. 1993); State v. Butler, 795 S.W.2d 680, 684 (Tenn. Crim. App. 1990).

       A defendant seeking a continuance on the basis of an absent witness must support
the motion with an affidavit alleging the substance of the witness’s testimony, the
testimony’s relevance and materiality to the defense, that the testimony was admissible
and not cumulative, that the witness would be available at a later date, and that counsel
exercised diligence in trying to obtain the witness’s presence at trial. See State v. John
Edward Lynch, No. M2010-02481-CCA-R3-CD, 2012 WL 3679575, at *7 (Tenn. Crim.
App. Aug. 24, 2012) (citing State v. Dykes, 803 S.W.2d 250, 257 (Tenn. Crim. App.
1990), overruled on other grounds; State v. Bennett, 798 S.W.2d 783, 787-88 (Tenn.
Crim. App. 1990); State v. Frahm, 737 S.W.2d 799, 802 (Tenn. Crim. App. 1987)).
“This court has also recognized, however, that the lack of a written affidavit is not always
controlling.” John Edward Lynch, 2012 WL 3679575, at *7 (citing State v. Edward
                                           - 30 -
Mitchell, No. W1999-01314-CCA-R3-CD, 2001 WL 204180 (Tenn. Crim. App. Mar. 1,
2001); State v. Alvin Glenn Hughes, No. 02C01-9208-CR-00183, 1993 WL 193712
(Tenn. Crim. App. June 9, 1993)).

       Dodson has failed to show that the trial court abused its discretion in denying his
request for a continuance in this case. The record reflects that Dodson never requested a
continuance or filed an affidavit of materiality. Moreover, Dodson offered no proof as to
what the witness’s testimony would have been or how the testimony would have been
material to his defense, much less how it would have changed the outcome of his trial.
Further, on appeal, Dodson has not alleged how he was prejudiced by the trial court’s
denial of his request for a continuance or provided any information about the witness’s
materiality to the defense. He is not entitled to relief on this issue.

       IX. Void Indictment. Finally, Dodson argues that count ten of the indictment
charging possession of a firearm in the commission of a dangerous felony was
insufficient for failure to give notice of the underlying dangerous felony. The State
maintains that the indictment provided Dodson with sufficient notice.

       Dodson’s indictments included, among other charges, three counts of especially
aggravated kidnapping, one count of aggravated burglary, and one count of employing a
firearm during the commission of a “dangerous felony.” Tennessee Code Annotated
section 39-17-1324(a) states that “[i]t is an offense to possess a firearm with the intent to
go armed during the commission of or attempt to commit a dangerous felony.”
Especially aggravated kidnapping and aggravated burglary are statutorily defined as
“dangerous felon[ies].” See T.C.A. § 39-17-1324(i)(1). On the first day of trial, before
opening statements, the trial court clarified that the “dangerous felony” in count ten had
to refer to the aggravated burglary charge, because firearm possession was an element of
the especially aggravated kidnapping charges. The State agreed and no objection was
made by the defense. The trial court instructed the jury that “[t]he [t]enth [c]ount of this
[i]ndictment charges the defendants with the offense of employing a firearm during the
commission of an aggravated burglary.”

       Dodson contends that “the vague indictment is insufficient and fails to give notice
of the charge by failing to enumerate a specific dangerous felony.” However, the
Tennessee Supreme Court recently held that an indictment charging employment of a
firearm during the commission of a dangerous felony is sufficient to provide notice to the
defendant without naming the predicate felony. State v. Duncan, 505 S.W.3d 480, 489-
91 (Tenn. 2016). The Court held that “the predicate dangerous felony must be tried in the
same trial as the firearm charge, so the defendant will not be surprised at having to make
a defense against either of the two possible predicate felonies.” Id. at 491. Like Duncan,
Dodson was indicted for multiple counts of especially aggravated kidnapping and one
                                           - 31 -
count of aggravated burglary. Although count ten, charging Dodson with employing a
firearm during the commission of a dangerous felony, did not state the underlying felony,
Dodson knew that the possible underlying felonies were to be tried in the same trial as the
firearm charge, and was even informed before trial, to no objection, that count ten
referred to the aggravated burglary charge. Therefore, as in Duncan, he was not surprised
at having to make a defense against the possible underlying felonies. Accordingly,
Dodson is not entitled to relief.

        As a final matter, Dodson seemingly attempts to raise a sentencing issue in one
sentence at the end of his brief. Dodson argues “that the trial court’s consecutive
sentence relating to counts one, two, and three all being ordered to be served
consecutively to count ten be found to be an abuse of discretion pursuant to State v. Bise,
380 S.W.3d 682 (Tenn. 2012).” Dodson did not identify any sentencing issues in his
statement of issues and, accordingly, “[a]n issue may be deemed waived when it is
argued in the brief but is not designated as an issue in accordance with Tenn. R. App. P.
27(a)(4).” Mobley v. State, 397 S.W.3d 70, 102 (Tenn. 2013) (citing Hodge v. Craig,
382 S.W.3d 325, 334 (Tenn. 2012)). Further, Dodson provides no citations to the record
and no argument in support of this single statement. See Tenn. Ct. Crim. App. R. 10(b)
(“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waiver in this court.”). We conclude that the
issue is waived.

                                        CONCLUSION

       Based on the foregoing, the judgments of the trial court are affirmed.


                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                          - 32 -
