                                                                                            05/10/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 3, 2017

                 STATE OF TENNESSEE v. JUSTUS ONYIEGO

                  Appeal from the Criminal Court for Shelby County
                    No. 15-00352       Glenn Ivy Wright, Judge
                      ___________________________________

                            No. W2017-00217-CCA-R3-CD
                        ___________________________________

A Shelby County Criminal Court Jury convicted the Appellant, Justus Onyiego, of two
counts of aggravated rape, a Class A felony. After a sentencing hearing, the trial court
merged the convictions and sentenced him to seventeen years in confinement. On appeal,
the Appellant contends that the trial court denied his right to due process by failing to
dismiss the indictment due to the State’s ten-year preindictment delay, that the trial court
erred by failing to strike the testimony of two police officers, that the trial court erred by
refusing to admit evidence of the victim’s prior sexual behavior under Tennessee Rule of
Evidence 412, and that a prosecutor’s failure to correct false statements during closing
arguments violated Napue v. Illinois, 360 U.S. 264 (1959), and constituted prosecutorial
misconduct. Based upon the record and the parties’ briefs, we find no reversible error
and affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and Alan E. Glenn, JJ., joined.

Claiborne H. Ferguson (on appeal) and Shannon McKenna (at trial), Memphis,
Tennessee, for the appellant, Justus Onyiego.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Abby Wallace, and
Samuel Winnig, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                         OPINION

                                  I. Factual Background
       In January 2015, the Shelby County Grand Jury indicted the Appellant for two
counts of aggravated rape based upon alternative theories. The indictment alleged the
rapes occurred in September 2004, and the Appellant’s jury trial began on June 1, 2016.
Although the Appellant does not contest the sufficiency of the evidence, we will
summarize the evidence presented at trial.

       The thirty-seven-year-old victim testified that in September 2004, she lived in an
apartment in Memphis with her mother, sister, and children. On the morning of Sunday,
September 5, the victim was sitting on the steps outside her apartment and noticed that a
four-door, green car kept driving by the apartment. At some point, the car stopped, and
the driver, whom the victim identified at trial as the Appellant, asked if she knew where
he could buy some powder cocaine. The victim had seen the Appellant in the
neighborhood previously and “kind of recognized who he was” but did not know his
name. The victim told the Appellant that she did not know where he could buy cocaine,
and he told her that “I was really trying to see could I date you, get with you.” The
victim knew he was talking about prostitution. The victim asked how much money he
had, and he asked what he could get for forty dollars. The victim told him “[m]aybe
both,” meaning oral and vaginal sex. The victim wanted money to buy drugs, so she got
into the Appellant’s car.

        The victim testified that the Appellant claimed he knew “a good spot” and that he
pulled onto a ramp at a warehouse where trucks loaded and unloaded. The victim was
scared someone would see them and told him she did not like that location. She also told
him she wanted the money first. The Appellant told the victim, “I ain’t got no change. I
give it to you afterwards.” The victim said she responded, “You ain’t got no change?
But we just passed by the store.” The Appellant then told the victim, “I’m going to give
it to you, I’m going to give it to you.” The victim told the Appellant, “Man, no, that’s
okay. I want to go home.” The Appellant acted as if he did not want to take to the victim
home, so the victim opened the door to get out of the car. The Appellant grabbed her hair
and pulled her back inside the car. The victim turned around and started hitting the
Appellant, and they began “fighting and tussling.” The victim said that the car was
constantly moving on the ramp while they were fighting and that “the front two wheels
went over the ramp and [the car] got stuck.” The Appellant began choking the victim and
put a knife to her throat, and the victim passed out. She said that when she awoke, the
Appellant’s penis was inside her vagina, and he was having sex with her. She saw a
screwdriver in the car, grabbed it, and started “sticking him with it.” She got out of the
car and ran to a gas station.

      The victim testified that when the police came to the gas station, she told them that
a man had raped her and that his car was stuck on a ramp at a warehouse. The police
went to the warehouse and brought the Appellant to the gas station, where the victim
                                           -2-
identified him as her attacker. The victim went to the Rape Crisis Center and spoke with
a nurse. She told the police and the nurse that the Appellant used a knife during the
attack but did not tell them that she was working as a prostitute that day. The victim
identified photographs of scratches and cuts on her neck and the Appellant’s car stuck on
the ramp for the jury.

       The victim testified that she was scared to cooperate with the police because the
Appellant knew where she lived and that she did not have any further contact with law
enforcement after September 5, 2004. Years later, though, a police officer contacted her,
and she told him about what happened in September 2004. The officer showed the victim
a six-photograph array, and she selected the Appellant’s photograph. The victim
acknowledged that she originally agreed to have sex with the Appellant but that she
changed her mind because she did not like the location he chose and because he did not
have any money.

       On cross-examination, the victim denied telling the police that she was walking
home after a night of partying and smoking crack cocaine when the Appellant stopped his
car to talk with her. She acknowledged that she did not tell the police she was
prostituting herself on September 5 and that she may have told them she was raped at
gunpoint. She also acknowledged that she was addicted to crack cocaine at the time of
the incident, that she agreed to get into the Appellant’s car, and that she agreed to have
sex with him for money. However, he would not give her the money prior to the sex, so
she changed her mind and told him no. She testified that they started “fight and tussling”
and that she began “sticking” him with the screwdriver. She acknowledged that she
broke his glasses and that she may have “bust[ed]” his lip.

        Lieutenant Mark Wojcicki of the Memphis Police Department (MPD) testified that
about 7:30 a.m. on September 5, 2004, he was dispatched to the Tiger Mart Exxon on the
corner of Third and Crump and was the first officer on the scene. The victim was “very
frantic,” had been “beat up really bad,” and told Lieutenant Wojcicki that “she asked a
dude for a ride and he pulled around some building, and then hit her with something and
tried to force her to have sex with him.” The officer said that the victim’s clothes were
torn and that “[y]ou could see all of her bra.” He identified photographs of the victim
taken at the gas station and said the photographs showed “ligature marks around her neck
and just redness and bruising.” Lieutenant Wojcicki left the gas station, went “down the
street,” and saw a car “halfway off” a loading dock. He saw the Appellant walking
toward the Tiger Mart Exxon, and the Appellant matched the description given by the
victim. Lieutenant Wojcicki transported the Appellant to the gas station, and the victim
shouted, “That’s him, that’s him.”



                                          -3-
       On cross-examination, Lieutenant Wojcicki acknowledged that the victim claimed
that she had been walking home “after a night of partying, smoking crack”; that the
Appellant stopped his car and asked if she wanted a ride home; and that he raped her at
gunpoint. Lieutenant Wojcicki said he did not find any weapons on the Appellant.

       Officer William Goetsch of the MPD testified that he responded to the Tiger Mart
Exxon on September 5, 2004. The Appellant was in custody when he arrived, and the
victim said the Appellant raped her. The victim claimed the Appellant used a gun “to
traumatize or to hold her at bay while [the] rape had occurred.” Officer Goetsch said the
victim was “battered,” had injuries to her neck, and “was very sincere and genuine in
how she spoke about that she had just been raped.” Defense counsel asked if the victim
admitted to Officer Goetsch that she had been working as a prostitute that day, and he
answered, “I believe so.” On cross-examination, though, Officer Goetsch acknowledged
that he wrote the police report for this case and that he did not mention the victim’s
working as a prostitute in the report. He explained that he would not have included
information in the report that was not relevant to the case.

       Sergeant Lavern Jones of the MPD testified that he went to the Tiger Mart Exxon
and photographed the victim. He then went to the warehouse on Crump and
photographed a car “hanging off the dock.” A cellular telephone and a condom were on
the driver’s side floorboard inside the car, and clothing, including a pair of men’s boxer
shorts, was on the backseat. Sergeant Jones said that the police found some of the
Appellant’s personal property, including his wallet, inside the car and that a condom
wrapper was on the ground outside the car.

       Kristine Gable, the Nursing Coordinator for the Rape Crisis Center, testified as an
expert in forensic sexual assault examination that a nurse examined the victim at 9:30
a.m. on September 5, 2004, and that she had reviewed the nurse’s report. The victim was
twenty-five years old and reported that she had been raped at 6:30 a.m. The nurse
described the victim as “agitated, cooperative, sobbing, and tearful,” and the victim told
the nurse the following: The victim had been walking home when the Appellant pulled
up beside her and asked if she needed a ride. The victim got into the car, the Appellant
parked between two trailer trucks, and the victim tried to get out of the car. The
Appellant hit the victim on the head with a gun, choked her, tore off her panties, and
raped her. According to the nurse’s report, the Appellant vaginally penetrated the victim
one time, ejaculated, and did not use a condom.

        Ms. Gable testified that the nurse collected vaginal swabs and slides for a rape kit
and that the nurse did not see any vaginal or anal injuries. However, the nurse reported
redness and three lacerations to the victim’s neck and swelling and redness to the victim’s
left eye. The victim complained of a headache and abdominal pain.
                                           -4-
       Sergeant Israel Taylor of the MPD testified that he used to work as an investigator
for the MPD’s DNA Unit and was responsible for investigating “old” rape and sexual
assault cases. In October 2014, Sergeant Taylor received and began investigating the
victim’s case, which had been closed by the original investigator because the investigator
could not locate the victim. Sergeant Taylor stated, “The original investigators made
several attempts to try and locate her, relative’s houses, phone numbers, and it was just
everything was a dead end, basically, for lack of a better term.” As a result, the police
released the Appellant from custody.

       Sergeant Taylor testified that he contacted the victim, that she agreed to cooperate,
and that he took a formal statement from her in December 2014. He said the victim
“was just a range of emotions when we met with her: part relief, part anger, part
sadness.” He showed her a six-photograph array, and she “eventually” selected the
Appellant’s photograph. The victim told Sergeant Taylor that she was “positive” the
Appellant was the perpetrator. The grand jury indicted the Appellant, and the police
arrested him and collected a buccal swab from him.

       Jennifer Millsaps of the Tennessee Bureau of Investigation’s Serology and DNA
Unit testified as an expert in forensic DNA analysis that in June 2011, she analyzed the
swabs and slides in the victim’s rape kit and found sperm. In January 2015, she received
a “standard” from the Appellant and compared the DNA from the Appellant’s sample to
the sperm DNA. The DNA profiles matched. On cross-examination, Agent Millsaps
acknowledged that the match did not mean a rape occurred.

       At the conclusion of Agent Millsaps’s testimony, the State rested its case. The
Appellant did not present any proof, and the jury convicted him as charged of one count
of aggravated rape accomplished by the use of force or coercion and while armed with a
weapon and one count of aggravated rape causing bodily injury to the victim. After a
sentencing hearing, the trial court merged the convictions and sentenced the Appellant to
seventeen years in confinement.

                                       II. Analysis

                                 A. Preindictment Delay

       The Appellant contends that the trial court denied his right to due process by
failing to dismiss the indictment due to the State’s ten-year preindictment delay. The
State argues that the trial court properly refused to dismiss the indictment. We agree with
the State.

                                           -5-
       Although the crimes occurred in September 2004, the Shelby County Grand Jury
did not indict the Appellant until January 2015. On June 25, 2015, the Appellant filed a
motion to dismiss the indictment based on violations of both federal and state due
process. The Appellant argued in the motion that he had been prejudiced by the delay
because material witnesses had not been located and because the memories of witnesses
had “faded over time.”

        The trial court held a hearing on the motion on September 24, 2015. No witnesses
testified at the hearing, and neither party presented any evidence. During the hearing,
defense counsel advised the trial court that she could not yet show actual prejudice to the
Appellant due to the delay “other than what you would expect to find in a case that has
been delayed for nearly 15 years in prosecuting and finding the witnesses.” Nevertheless,
she argued that the trial court should dismiss the indictment due to the State’s “reckless
disregard” for testing the victim’s rape kit, which caused the State’s unjustifiable delay in
indicting the Appellant. Defense counsel also argued that the trial court should consider
the balancing approach adopted in State v. Ferguson, 2 S.W.3d 912, 915-18 (1999), a
case involving evidence lost by the State, for the last prong of the Marion-Dykes test, the
test used to determine whether a preindictment delay infringes upon a defendant’s due
process rights. Defense counsel explained, “We’re not arguing that this is lost evidence;
however, it might as well have been for all practical purposes.”

       The State explained that the reason for the delay was as follows: When the police
went to talk with the victim soon after the rape, they were unable to locate her because
she had checked herself into a rehabilitation center. The police left their information for
the victim, but she never contacted them. The State argued that while the police’s
inaction in pursuing the case may have been due to “indifference” or “incompetence,” the
delay was not to gain a tactical advantage for the State. The State noted that the
Appellant had offered no proof that the State intentionally caused the delay in order to
gain a tactical advantage. The State also argued that due to the Appellant’s inability to
show actual prejudice, the trial court should deny the motion to dismiss. Defense counsel
responded that according to the notes from the original investigation, a police officer
went to speak with the victim on September 20, 2004. The victim was not there, so the
officer closed the case just sixteen days after the alleged attack due to the victim’s lack of
cooperation.

        The trial court found that a preindictment delay existed. However, the court also
found that the Appellant failed to prove the State caused the delay in order to gain a
tactical advantage over him and that the Appellant failed to prove actual prejudice. Thus,
the court denied the motion. On appeal, the Appellant contends that the dispositive issue
before us is whether the State caused the delay in order to gain a tactical advantage and

                                            -6-
that the balancing approach adopted in Ferguson more equitably distributes the burden of
proof between a defendant and the State.

       We review a trial court’s ruling on a motion to dismiss the indictment for an abuse
of discretion. State v. Harris, 33 S.W.3d 767, 769-70 (Tenn. 2000). Generally, to
establish a due process violation stemming from a preindictment delay, an accused must
prove the following prerequisites, also known as the Marion-Dykes test: (1) there was a
delay; (2) the accused sustained actual prejudice as a direct and proximate result of the
delay; and (3) the State caused the delay in order to gain a tactical advantage over the
accused or to harass the accused. State v. Utley, 956 S.W.2d 489, 495 (Tenn. 1997)
(citing United States v. Marion, 404 U.S. 307, 324-25 (1971), and State v. Gray, 917
S.W.2d 668, 671 (Tenn. 1996)); see also State v. Carico, 968 S.W.2d 280, 284-85 (Tenn.
1998).

        In Ferguson, our supreme court addressed the issue of when a defendant is entitled
to relief in the event the State has lost or destroyed evidence that was alleged to have
been exculpatory. 2 S.W.3d at 915-18. The court explained that a reviewing court must
first determine whether the State had a duty to preserve the lost or destroyed evidence.
Id. at 917. Ordinarily, “the State has a duty to preserve all evidence subject to discovery
and inspection under Tenn. R. Crim. P. 16, or other applicable law.” Id.

       If the proof demonstrates the existence of a duty to preserve the evidence and
further shows that the State has failed in that duty, a court must proceed with a balancing
analysis involving consideration of the following factors:

              1. The degree of negligence involved;

              2. The significance of the destroyed evidence, considered in
              light of the probative value and reliability of secondary or
              substitute evidence that remains available; and

              3. The sufficiency of the other evidence used at trial to
              support the conviction.

Id. (footnote omitted). If the court’s consideration of these factors reveals that a trial
without the missing evidence would lack fundamental fairness, the court may consider
several options such as dismissing the charges or providing an appropriate jury
instruction. Id.

     The Appellant contends that in State v. Ahmad R. Manning, No. E2011-01812-
CCA-R3-CD, 2013 WL 794154 (Tenn. Crim. App. at Knoxville, Mar. 4, 2013), perm.
                                           -7-
app. denied, (Tenn. Sept. 11, 2013), this court “incorporated the aforementioned
Ferguson approach as a method of ensuring that the due process right to a fair trial was
not infringed.” We disagree with the Appellant. In Ahmad R. Manning, the trial court
dismissed the indictment because the two-year delay between the offenses and the
indictment gave the State an “[a]lbeit unintentional” advantage over the defense. No.
E2011-01812-CCA-R3-CD, 2013 WL 794154, at *4. On appeal, this court concluded
that the trial court erred by dismissing the indictment under the Marion-Dykes test
because “the trial court must find that the State intentionally delayed the proceedings in
order to gain a tactical advantage or to harass the accused.” Id. at *5 (emphasis added).
Accordingly, this court reversed the trial court’s dismissal of the indictment. See id.
This court expressed concern, though, as to “whether in reality the Marion-Dykes rule
affords a defendant meaningful protection of his due process right to a fair trial in the
face of unreasonable and unjustified pre-indictment delay” and suggested a “Ferguson-
type analysis” for such cases. Id. at *6. However, this court did not incorporate
Ferguson into its own analysis of the issue, and our supreme court denied the defendant’s
application for permission to appeal. Id. at *7.

       Turning to the instant case, the trial court found that the Appellant did not prove
he sustained actual prejudice as a direct and proximate result of the delay or that the State
caused the delay in order to gain a tactical advantage over him. The Appellant offered no
evidence at the hearing on the motion to dismiss and offers no evidence on appeal that the
State intentionally caused the delay in order to gain a tactical advantage. Moreover, the
Appellant acknowledged at the hearing that he could not show actual prejudice, and he
does not address actual prejudice on appeal. Therefore, we conclude that the trial court
did not abuse its discretion by refusing to dismiss the indictment.

                              B. Police Officers’ Testimony

       Next, the Appellant contends that the trial court erred by refusing to strike Officer
Goetsch’s testimony due to his lack of memory and by overruling the Appellant’s
objection to Sergeant Taylor’s testimony about cold-case victims’ emotions. The State
argues that the trial court properly admitted the officers’ testimony. We conclude that the
Appellant is not entitled to relief.

        Officer Goetsch testified on direct examination that he went to the Tiger Mart
Exxon on September 5, 2004, and that he wrote the offense report for this case. He said
that he did not remember speaking with the victim but that he was “sure” he did so and
that he thought he transported her to the Rape Crisis Center. The State showed him a
photograph of the victim taken on the day of the crimes, and he stated, “And by looking
at that photograph, I recall a lot of -- this young lady had mentioned that she had been
victimized and raped.” Officer Goetsch said that the victim claimed the Appellant used a
                                            -8-
gun during the rape but that he did not remember if the police recovered a gun from the
Appellant. He also did not remember if the victim told him that she had been working as
a prostitute that day.

         On cross-examination, defense counsel asked Officer Goetsch if he remembered
the victim’s telling him that she had been walking home from a night of partying and
smoking crack cocaine when the Appellant approached her. Officer Goetsch replied, “If
that’s in my report, I wrote it.” Defense counsel asked the officer if he had any
independent recollection of what the victim told him, and he answered, “I made the scene
at that Exxon, or Tiger Mart at that time. She was the victim of a crime, I do remember
that. And there was a rape involved. So, yes, I do have independent recollection.”
Defense counsel asked if he remembered responding to the Exxon for a “fight call,” not a
rape, and he said no. Defense counsel then asked, “You don’t have very much
independent recollection of this, correct?” The officer answered, “I thought I gave . . .
what my recollection was.” He said that he reviewed his offense report the day before
the trial and that he thought he remembered writing what the victim told him in his
report. At that point, defense counsel requested that the trial court strike Officer
Goetsch’s testimony, and the State responded, “He has testified to what he remembered
when he saw the picture. He said he remembered that very clearly. . . . Obviously,
because it’s been 12 years, some of the people have lost some of their memory. I believe
it is clear what he remembers and what he’s seen from his report.” The trial court refused
to strike the officer’s testimony.

      On direct examination, Sergeant Taylor testified that when he contacted the victim
in 2014,

             it was just a range of emotions when we met with her: part
             relief, part anger, part sadness. I mean, she was just -- I
             mean, we went to this woman, talked to her about what
             happened to her several years later and it’s like we brought it
             all up again. As you can imagine, the emotions were just
             high.

Later, the State asked him to describe his procedure for reestablishing contact with
victims in “cold” cases, and he answered, “We take a counselor or victim advocate from
the Rape Crisis Center that goes with us. And the reason for that, as you can imagine, all
just runs the gamut of emotions[.]” Defense counsel objected and requested that Sergeant
Taylor “talk about this case.” However, the trial court overruled the objection, stating,
“He can testify to generally what their policies are[.]”



                                          -9-
       The Appellant first contends that the trial court erred by refusing to strike Officer
Goetsch’s testimony for his lack of memory about the events on September 5, 2004. We
disagree. As noted by the State, every person is presumed to be competent to testify and
may testify if evidence is introduced to show that the witness has personal knowledge of
the matter. Tenn. R. Evid. 601, 602. The competency of a witness is a matter entrusted
to the sound discretion of the trial judge, who has the opportunity to observe the witness
firsthand. State v. Caughron, 855 S.W.2d 526, 537-538 (Tenn. 1993). Here, Officer
Goetcsh testified that he wrote the incident report for this case. Although he did not have
an independent recollection of speaking with the victim, he was sure he did so. At that
point, the State refreshed his memory by showing him a photograph taken of the victim
on the day of the crimes. The officer also stated that he had refreshed his memory before
trial by reviewing his offense report. Defense counsel thoroughly questioned Officer
Goetsch about his memory of the events. Although Officer Goetsch may not have had a
perfect memory regarding September 5, 2004, we cannot say that the trial court abused its
discretion by refusing to strike his testimony.

        As to Sergeant Taylor, the State notes that the Appellant did not object to the
officer’s testimony regarding the victim’s emotions. Therefore, the issue is waived. See
Tenn. R. App. P. 36(b). As to Sergeant Taylor’s general statements about cold-case
victims experiencing a “gamut of emotions,” we question the relevancy of that testimony
to this case. See Tenn. R. Evid. 401; State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim.
App. 1995) (stating that the determination of relevant evidence is left to the discretion of
the trial court). In any event, Sergeant Taylor’s statements were brief, and the State’s
proof was strong. Therefore, we conclude that even if the trial court erred by admitting
Sergeant Taylor’s statements, the error was harmless. See Tenn. R. App. P. 36(b).

                           C. Tennessee Rule of Evidence 412

        The Appellant claims that the trial court erred by refusing to admit evidence of the
victim’s prior sexual behavior under Tennessee Rule of Evidence 412. The State argues
that the trial court properly excluded the evidence. We agree with the State.

       Before trial, the Appellant filed a motion to admit evidence of the victim’s prior
sexual behavior as a prostitute under Rule 412. The Appellant argued in the motion that
he should be allowed to show the victim “engaged in a distinctive pattern of flagging men
down to engage in sex for money . . . even after she was allegedly raped [by the
Appellant],” which was relevant to attack the victim’s credibility and support his defense
of consent.

       At a hearing on the motion, the victim testified for the Appellant that she worked
as a prostitute from 2002 to 2010. She said she did not know how many times the police
                                           - 10 -
arrested her for prostitution during that time, but she acknowledged that “[i]t was a lot.”
She also acknowledged that she pled guilty to prostitution “a number of times.” She
denied that all of her arrests resulted from her flagging down customers. She also denied
flagging down an undercover police officer for sex in 2002 but acknowledged pleading
guilty to a charge of prostitution in which an officer alleged she did so. She also
acknowledged pleading guilty to several additional charges of prostitution in which
police officers claimed she flagged down their vehicles. On cross-examination by the
State, the victim acknowledged having numerous convictions for prostitution but said that
the Appellant was the only customer she ever accused of rape. The trial court ruled that
the evidence did not satisfy Tennessee Rule of Evidence 412 and denied the Appellant’s
motion.

       Tennessee Rule of Evidence 412 addresses the issue of whether evidence of a
victim’s prior sexual behavior is admissible and the procedure to determine when such
information should be allowed into evidence. Usually, evidence of specific instances of a
victim’s sexual behavior is inadmissible. However, evidence of a victim’s sexual
behavior with persons other than the accused is admissible to prove consent if the
evidence concerns a pattern of sexual behavior so distinctive and so closely resembling
the accused’s version of events that it tends to prove the victim consented or behaved in
such a manner as to lead the defendant to reasonably believe the victim consented. Tenn.
R. Evid. 412(c)(4)(iii). The admissibility of evidence under Tennessee Rule of Evidence
412 rests in the trial court’s discretion. State v. Sheline, 955 S.W.2d 42, 46 (Tenn. 1997).

        Turning to the instant case, we agree with the trial court that evidence of the
victim’s prostitution does not fall under the purview of Rule 412(c)(4)(iii). “The plain
language of the rule speaks of ‘specific instances’ of sexual conduct with ‘persons’ other
than the defendant.” State v. Sheline, 955 S.W.2d 42, 46 (Tenn. 1997). As our supreme
court explained, “[T]he pattern [must] consist of sexual behavior so distinctive and so
closely resembling the defendant’s version that it tends to prove that the victim consented
to the act charged. The advisory comments to Rule 412 use the word ‘signature’ cases to
describe the distinctive behavior required.” Id. The victim acknowledged that she
worked as a prostitute and that she pled guilty to charges of prostitution in which
undercover police officers alleged she flagged down vehicles. However, the Appellant
failed to offer any distinctive pattern of sexual behavior by the victim to support his claim
that their entire sexual encounter was consensual. Thus, the trial court did not abuse its
discretion by ruling that the evidence was inadmissible.

                                  D. Closing Arguments

        Finally, the Appellant contends that one of the State’s prosecutors violated Napue
v. Illinois, 360 U.S. 264 (1959), and committed prosecutorial misconduct by telling the
                                           - 11 -
jury several times during closing arguments that the Appellant did not have any money
on the day of the crimes. He asserts that the prosecutor’s statements were “patently
false” because the proof showed that he had at least twenty dollars in his wallet when he
was arrested and were “clearly aimed at leading the jury to infer that Mr. Onyiego could
not have intended to engage in a consensual encounter because he did not have the funds
to follow through with the agreement.” The Appellant acknowledges that defense
counsel failed to object to the prosecutor’s statements but contends that the statements
rise to the level of plain error. The State argues that the Appellant is not entitled to relief.
We agree with the State.

       During closing argument, one of the prosecutors stated as follows:

                     [The victim] told you she wanted to go home. She
              didn’t want to do that there. She was worried that they would
              get caught. She didn’t want to catch a charge. But she told
              you she wanted her $40, too. She told you, Should have
              followed my gut. Against her better judgment, she was like,
              Fine, give me my money, let’s do this.

                      He didn’t have any money. I’ll give it to you later. I’ll
              give it to you after.

                      ....

              So what evidence did you hear of force or coercion and the
              use of a weapon? Well, [the victim] told you she wanted to
              leave. She had that right. She agreed to have sex for $40.
              She wanted to go to one location. He told her, If you don’t
              like it, we’ll leave. They got there, she didn’t like it, he didn’t
              leave. And then he didn’t have the money.

                      ....

                     And when she said, Well, how much money do you
              have? And he said $40, what can I get for $40. And she told
              him. They made an agreement. He made that agreement with
              her in front of her house on McLemore, knowing he didn’t
              have a dime to his name.

At the motion for new trial hearing, defense counsel advised the trial court that according
to the MPD’s Crime Scene Narrative form, the MPD’s Property Release form, and
                                             - 12 -
MPD’s Evidence Permanent Assignment Receipt form, the Appellant’s wallet contained
one twenty-dollar-bill at the time of his arrest. Defense counsel argued that although the
State did not introduce the forms into evidence at trial, the State provided the forms
during discovery; therefore, the prosecutor’s claim that the Appellant did not have any
money was “not correct.”

        Because the Appellant did not object to the prosecutor’s statements, the issue is
waived. See Tenn. R. App. P. 36(a) (nothing in the 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). However,
we may consider an issue as plain error when all five of the following factors are met:

              (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.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);
see also Tenn. R. App. P. 36(b). Furthermore, the “‘“plain error” must be of such a great
magnitude that it probably changed the outcome of the trial.’” Id. at 642 (quoting United
States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)). It is the Appellant’s burden to
demonstrate plain error. State v. Gomez, 239 S.W.3d 722, 727 (Tenn. 2007). Moreover,
we do not need to consider all five factors if we determine that a single factor does not
warrant relief. State v. Smith, 24, S.W.3d 274, 283 (Tenn. 2000).

        First, the Appellant argues that the prosecutor’s false statements violated Napue,
in which the United States Supreme Court held that “a conviction obtained through the
use of false evidence, known to be such by representatives of the State,” deprives a
defendant of due process. 360 U.S. at 269; see State v. Spurlock, 874 S.W.2d 602, 617
(Tenn. Crim. App. 1993). “The same result occurs when the State, although not
soliciting false evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S.
at 269. To prevail on a claim that the State knowingly presented false testimony, a
defendant must establish by a preponderance of the evidence “(a) that false or perjured
testimony was admitted at trial, (b) that the state either knowingly used such testimony or
knowingly allowed it to go uncorrected, and (c) that the testimony was material and
deprived him of a fair trial.” Roger Morris Bell v. State, No. 03C01-9210-CR-00364,
1995 WL 113420, at *8 (Tenn. Crim. App. at Knoxville, Mar. 15, 1995).



                                           - 13 -
       The Appellant argues that the prosecutor knowingly made false statements during
closing arguments, not that the prosecutor knowingly presented false testimony or
evidence as required by Napue. “Closing arguments are not evidence.” State v. Gentry,
538 S.W.3d 413, 430 (Tenn. 2017). Thus, the Appellant is not entitled to relief, let alone
plain error relief, under Napue.

       The Appellant also contends that the prosecutor’s statements constitute
prosecutorial misconduct. In order to prevail on a claim of prosecutorial misconduct, the
Appellant must demonstrate that the conduct committed by the prosecution was so
inflammatory or improper that it affected the verdict to his detriment. Harrington v.
State, 385 S.W.2d 758, 759 (Tenn. 1965); State v. Gray, 960 S.W.2d 598, 609 (Tenn.
Crim. App. 1997). In making this determination, this court is guided by five factors:

              1. The conduct complained of viewed in context and in light
              of the facts and circumstances of the case.

              2. The curative measures undertaken by the court and the
              prosecution.

              3. The intent of the prosecutor in making the improper
              statement.

              4. The cumulative effect of the improper conduct and any
              other errors in the record.

              5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also State v. Buck,
670 S.W.2d 600, 609 (Tenn. 1984). We note that “the Judge factors should only be
applied to claims of improper prosecutorial argument,” as in this case, not claims of
unconstitutional prosecutorial comment. State v. Jackson, 444 S.W.3d 554, 591 n.50
(Tenn. 2014). “[T]he State bears the burden of proving unconstitutional prosecutorial
comment or argument harmless beyond a reasonable doubt, whereas a defendant bears
the burden of proving prejudice when prosecutorial argument is merely improper.” Id.

       Regarding prosecutorial misconduct during closing arguments, it is well-
established that closing argument is an important tool for both parties during a trial; thus,
counsel is generally given wide latitude during closing argument, and the trial court is
granted wide discretion in controlling closing arguments. See State v. Carruthers, 35
S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such, arguments must
be temperate, based upon the evidence introduced at trial, relevant to the issues being
                                           - 14 -
tried, and not otherwise improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5
(Tenn. Crim. App. 2003).

        In Goltz, 111 S.W.3d at 6, this court outlined “five general areas of prosecutorial
misconduct” that can occur during closing argument: (1) intentionally misleading or
misstating the evidence; (2) expressing a personal belief or opinion as to the truth or
falsity of the evidence or defendant’s guilt; (3) making statements calculated to inflame
the passions or prejudices of the jury; (4) injecting broader issues than the guilt or
innocence of the accused; and (5) intentionally referring to or arguing facts outside the
record that are not matters of common public knowledge. “In determining whether
statements made in closing argument constitute reversible error, it is necessary to
determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

       Here, no evidence was presented at trial as to whether the Appellant possessed any
money when he picked up the victim. However, the victim testified that the Appellant
refused to give her any money before they had sex. As a result, the victim logically
concluded that he did not have any money. Therefore, we cannot say that the prosecutor
intentionally misled the jury or misstated the evidence.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.


                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE




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