        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 27, 2010 Session

       STATE OF TENNESSEE v. PAUL WALLACE DINWIDDIE, JR.

                   Appeal from the Criminal Court for Knox County
                    No. 88542     Richard R. Baumgartner, Judge




                  No. E2009-01752-CCA-R3-CD - Filed July 23, 2010


A Knox County jury convicted the defendant, Paul Wallace Dinwiddie, Jr., of two counts of
aggravated rape and two counts of aggravated sexual battery. The defendant appeals,
alleging that the trial court erred by instructing the jury on flight and by allowing a nurse
practitioner to testify as an expert witness. The defendant also challenges the sufficiency of
the convicting evidence and the length of his sentences. Upon our review, we find no error
in the convictions; however, we remand to the trial court to merge the two aggravated sexual
battery jury verdicts into one conviction judgment and the two aggravated rape jury verdicts
into one conviction judgment.

       Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part,
                          Vacated in Part, Case Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and J.C. M CL IN, J., joined.

Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, Paul Wallace Dinwiddie, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                        Introduction

              On October 23, 2006, an individual broke into the residence of the victim, L.
E.B.,1 covered the victim’s face with a towel, digitally penetrated her vagina, and placed her
breasts in his mouth. Subsequent investigation resulted in the arrest of the defendant, and
a Knox County grand jury indicted the defendant for two counts of aggravated rape, see
T.C.A. § 39-13-502 (2006), and two counts of aggravated sexual battery, see id. § 39-13-504.
After a two-day trial that ended on March 26, 2008, a Knox County jury convicted the
defendant as charged on all counts. The trial court sentenced the defendant to 25 years’
incarceration for the aggravated rape convictions to be served consecutively to 20 years’
incarceration for the aggravated sexual battery convictions. The defendant filed a timely
motion for new trial and notice of appeal.

                                                       Trial

               The victim testified that she was 26 years old and had moved to Knoxville from
Athens, Tennessee, in 2004 to work as a personal trainer at the Rush Fitness Complex (“the
Rush”). She testified that on October 9, 2006, she began a second job as a physical therapist
assistant at Fort Sanders Regional Hospital. She testified that her typical weekday involved
training a client at the Rush at 6:00 a.m., returning home to dress for work, working at Fort
Sanders Regional Hospital, returning home, training another client at the Rush from 6:00 to
9:00 p.m., and then returning home for bed. The victim lived on a ground-floor apartment
in an apartment complex.

               The victim testified that on October 22, 2006, the day before she was raped,
she cleaned the house, washed dishes, and did laundry. She then shopped at Dick’s Sporting
Goods and went to eat with her friend, Jennifer Johnson. The victim testified that Ms.
Johnson returned to her apartment with her and stayed until approximately 9:30 p.m. After
Ms. Johnson left, the victim washed her face, brushed her teeth, removed her contact lenses,
and changed into a tank top and boxer shorts. The victim testified that she set her mobile
telephone on her bedside table and went to sleep around 10:45 p.m. She explained that she
did not have a client from the Rush scheduled for the next morning, so she had planned to
go straight to the hospital.

                The victim testified that she was awakened “[b]y a man’s voice and a towel
over [her] face.” She said the man called her by her name and instructed her not to scream.
The victim testified, “He then said that he had a knife, and he held it to my neck and asked
if I could feel it, which I could.” She said that the man told her that he had her driver’s
license and social security card and that he would kill her if she contacted the police. She
said that the assailant called her a “stupid bitch” for leaving a window open. The victim said,
“He asked me to roll over, which I did, and I was crying at this point and asking him please


       1
           It is the policy of this court to refer to the victim’s of sexual offenses by their initials.
                                                         -2-
not to do anything to me. At which point he said he wasn’t going to f*** me and rolled me
back over and began to touch me.”

                The victim stated that the defendant placed his fingers inside her vagina and
that it hurt her. She told her assailant that he was hurting her, but he did not stop. The victim
said that the assailant also performed oral sex on her and kissed both of her breasts. She
testified that the man “straddled” her and attempted to force her to perform fellatio on him
but that she refused. She testified that the man then got off her and asked where she kept her
condoms. She testified that she told him that she did not have any and that the man then
masturbated, ejaculating into the corner of the towel that covered her face.

                The victim said the man then turned on the lights, told her that he had dropped
his lighter, and commented that the victim had “a beautiful body.” She testified that she tried
to peek from beneath the towel during this time and that she saw a balding white man. The
man then used something to “wipe down” the headboard of the victim’s bed. The victim said
that the man then told her to lift the fitted sheet from her bed and that she complied. He then
pushed her into another room and took the towel from her face while shutting the door. She
testified that he instructed her to stay in the room for 30 minutes.

              The victim testified that she realized that she was in the bathroom when she
stepped in her cats’ litter box. She waited until she no longer heard any noises, and then she
retrieved a knife from the kitchen and turned on all her lights. She called Ms. Johnson via
her mobile telephone and, after Ms. Johnson arrived, she called the police.

                The victim described the assailant as having a “very southern accent.” The
victim “thought [she] caught a glimpse of just the top of his head.” She said, “[I] opened my
eyes, and I see not much hair, if any, and then the towel went completely over my face.” She
testified that she could feel that the assailant wore denim jeans and that he had a “very rough
face.” The victim also “heard” his belt buckle. She testified that his shirt was cotton and that
it had a chest pocket because he stated his lighter fell out of his shirt. She believed that the
assailant used his shirt to wipe down the headboard. She said that the assailant weighed
approximately 190 pounds and had a “beer belly.”

              The victim maintained that, with the exception of her obtaining her mobile
telephone from her night stand, she did not disturb any possible evidence in her bedroom.
The victim testified that she observed a muddy footprint by a window in a guest bedroom of
her apartment that was not there when she cleaned the apartment earlier. She also found a
“jumbled mass of hair” on her hand, which she placed in a plastic bag and gave to law
enforcement officers. She stated that the hairs included long and shorts hairs and that some
were blond and some were darker.

                                               -3-
             The victim said that, after law enforcement officers arrived, she followed an
officer to Safe Haven where she gave a statement to the attending nurses and law
enforcement officers. She testified that the assailant had no permission to touch her sexually.

               On cross-examination, the victim stated that the assailant did not wear gloves
and that she did not believe an additional assailant was in her apartment. She admitted that
she could not recall if the assailant held the knife to her during the digital rape. She also said
that the assailant smelled strongly of cigarette smoke.

                Deputy Angela Renee Varner of the Knox County Sheriff’s Office (“KCSO”)
testified that she responded to the victim’s 9-1-1 call. She observed the victim’s bedroom
and bed linens “all messed up and everything.” She also observed a footprint in the victim’s
guest bedroom. Deputy Varner photographed the apartment and bedroom. She also
attempted to lift fingerprints from the bedside lamp and headboard, but she found no useable
prints. Deputy Varner also collected a note that read, “Hi. I’m shy and would love to meet
you. Please write at www.akandyktn@yahoo.com; P.S., for a good time.”

               Anthony Dwayne Winston testified that he worked as the associate technical
director in the forensic identity department of Laboratory Corporation of America in North
Carolina. The court qualified him as an expert in deoxyribonucleic acid (“DNA”) analysis.
He testified that he tested the darker hairs from the bundle of hair found by the victim;
however, he did not have sufficient amounts of the darker hair to yield a DNA profile. On
cross-examination, he explained that he only received instructions to test the darker hairs and
not the blond hairs.

               Deborah Harrington testified that she worked at the Safe Haven Center in
Knoxville in 2006 as a sexual assault examiner. She testified that she was the coordinator
for continuing education for health sciences at Roane State Community College and had
spent 30 years as a nurse and paramedic. Ms. Harrington testified that she and KCSO
officers interviewed the victim for approximately an hour on October 23, 2006. She said that
the victim told her what happened to her and that she used this information in performing the
sexual assault examination.

                Ms. Harrington testified that she performed a “head-to-toe” external
examination of the victim to identify any visible injuries. She testified that she did not
observe any external injuries but that this was consistent with the victim’s statement. She
then examined the external genitalia of the victim and observed redness on the “lower
borders” of the vagina and that the victim reported tenderness in the area. Ms. Harrington
also observed an area of the victim’s vagina that was “actually abraded, which means
epithelial cells had actually been rubbed off the area.” She swabbed the area which revealed

                                               -4-
that the abrasion was bleeding. She stated that these injuries were consistent with the
victim’s interview.

                The assistant district attorney general asked whether the injuries that Ms.
Harrington observed on the external area of the victim’s vagina “would be consistent with
an individual sticking two fingers roughly, forcefully in [the victim’s] vagina and causing
those injuries,” and Ms. Harrington responded that the injuries were consistent with the
assistant district attorney general’s description.

             Ms. Harrington also performed a “lighted speculum exam” to view the cervix
and the vaginal vault. She noted reddened and abraded areas and that the victim
“complain[ed] of tenderness on palpation of those particular areas.” She testified that she
observed another small cut during this exam.

             Ms. Harrington testified that she also took swabs from the victim’s vagina,
mouth, and breasts for later DNA analysis.

               On cross-examination, she agreed that redness in the vaginal area can be caused
by rashes and “inflammatory reactions.” She also admitted that she had not reviewed the
victim’s medical history and did not know whether she suffered from any conditions that
would produce such rashes or reactions. Ms. Harrington noted, however, that “any kind of
infection or inflammatory process is basically a generalized type of process, as opposed to
just an isolated spot or two,” and she maintained that the medical history would have had
“very little” affect on her examination of the victim.

               Miles Bradford Park of the KCSO’s forensic services division testified that he
assisted Deputy Varner in photographing and fingerprinting the victim’s bedroom after the
attack. He also fingerprinted the outside and inside of the window where the assailant
entered and the sliding glass door where he possibly left. He testified that he was unable to
lift any useable prints. Deputy Park testified that he noticed a screen lying flat against the
outside wall of the apartment. He also took a plaster cast of a footprint found outside. He
also measured the footprint inside the apartment and noted it was approximately 11 or 12
inches in length. On cross-examination, Deputy Park admitted that nothing in his
investigation suggested that any part of the scene had been wiped down.

              Deputy Michael McMahan of the KCSO testified that detectives on the
victim’s case called him and asked him to collect a condom and a hand towel from the
victim’s apartment complex. Detective Brad Hall testified that the items were found around
the apartment complex’s dumpster.



                                             -5-
              Janice Lyons testified that she worked at a private forensic company called
Bode Technologies in Lorton, Virginia, when she analyzed the swabs from the victim’s
sexual assault kit as well as the towel and condom. She testified that she was also provided
with a known blood standard from the victim.

               Ms. Lyons testified that the breast swabs indicated the presence of saliva and
that she developed a DNA profile of a male contributor. She also found the presence of
semen on the corner of the towel and on the inside of the condom. She developed a DNA
profile for the semen samples and discovered they were from the same male contributor;
however, the contributor to the towel and condom was different from the contributor to the
breast swabs. Ms. Lyons then returned the results of her testing to the Tennessee Bureau of
Investigation (“TBI”).

               Special Agent Jennifer Milsaps of TBI’s Knoxville Regional Crime Laboratory
testified that she received the DNA profiles from Ms. Lyons at Bode Laboratories. She
stated that she entered the DNA profiles into the Combined DNA Index System (“CODIS”)
to determine the identity of the contributors. Agent Milsaps testified that CODIS returned
the defendant’s name as the contributor of the saliva on the breast swabs. She stated that
CODIS returned no match for the contributor of the semen on the towel and condom.

                Lisa Wessner of the TBI testified as an expert in serology and DNA analysis.
She testified that she generated a DNA profile from the defendant’s buccal swab. She
testified that the defendant’s DNA profile matched the profile taken from the swab of the
victim’s breasts. She testified that the DNA profiles matched to the exclusion of the world’s
population. On cross-examination, she stated that she also examined whether the defendant’s
DNA matched the profile on the towel and that it did not match.

               Detective Hall testified that he obtained a presentment against the defendant
and that he went to the defendant’s mobile home to arrest him on February 20, 2008. He
recalled that when he arrived at the defendant’s mobile home and saw no cars or people at
the home, he then went to the front of the trailer park to wait for the defendant to return
home. Detective Hall then followed the defendant’s vehicle to his home and observed the
defendant park his car and enter his home.

              Detective Hall testified that two officers assisted him in arresting the defendant
and that he and one officer went to the front door while the third officer went to the back
door. The officers knocked and announced their presence but received no answer from the
front or back door. Detective Hall testified that he then forced entry into the home and that
the defendant appeared from the rear of the trailer holding a handgun. He said the defendant
yelled, “Who are you? What are you doing in here? What do you want? Get out?” He said

                                              -6-
that the defendant had the gun pointed toward the officers with his other hand “on top of it”
racking the slide. The defendant then retreated to the back of the mobile home. Detective
Hall testified that the officers set up a perimeter around the home so that the defendant could
not escape and that the special weapons and tactics (“SWAT”) team arrived. The defendant
spoke with his sister via his telephone, and he informed the officers that “if his sister could
come down closer to the trailer to where he could see her” he would exit the home. The
officers complied, and the defendant exited the mobile home and was arrested. The State
played an audio-recording of these events that were captured by a recording device held by
Detective Hall.

               Detective Hall said that the officers then searched the residence and found
ashtrays, cigarette lighters, and a pack of cigarettes. Detective Hall also found a knife in the
residence. The officers found a pair of the defendant’s boots, which were men’s size 10.5
and approximately 12 inches in length. Detective Hall testified that the defendant had brown
hair and weighed approximately 200 pounds. He said that they recovered a loaded handgun.

              On cross-examination, Detective Hall admitted that the defendant voluntarily
came to the KCSO for a buccal swab on February 8, 2008. He also admitted that the
defendant voluntarily reported to the office for questioning. Detective Hall read the
defendant his rights, the defendant spoke with him for some time, and then the defendant
stopped and asked for his attorney.

               The State rested, and the defendant called Charles Price of the KCSO who
helped Detective Hall in arresting the defendant. He stated that the defendant did not point
the gun directly at the officers; however, he maintained that the defendant pointed the gun
in the officers’ direction.

               Joan Cannon, the defendant’s sister, testified that the defendant had lived with
her for six of the previous eight years. She maintained that the defendant never smoked
cigarettes and that he only smoked marijuana. She testified that she was a smoker and that
the defendant allowed her to smoke while at his home and that he had other friends that
smoked cigarettes. She testified that the defendant did not wear belts because he had an
allergy to the metal in the buckles. She also testified that, although the defendant kept his
hair shaved, his hair was blond. She produced a photograph showing the defendant with
blond hair. On cross-examination, she admitted that the photograph of the defendant was
from 1966 and that his hair was “not that blond of a blond” anymore.

              Based upon the evidence as summarized above, the jury convicted the
defendant of two counts of aggravated rape and two counts of aggravated sexual battery.



                                              -7-
                                     Sentencing Hearing

              During the sentencing hearing, the State called Sam Brown of the Knoxville
Police Department, who testified that while on patrol in 1993, he received a complaint from
a woman named Kimberly Cline. He said that Ms. Cline reported that “there was an
individual that was peeping in her windows and breaking in her car and doing stuff like that.”
He said that he and another officer followed Ms. Cline as part of a “direct patrol” and
observed the defendant following Ms. Cline on the campus of the University of Tennessee.
They discovered he had broken into Ms. Cline’s vehicle and left a rose and taken papers. On
cross-examination, Officer Brown testified that he interviewed the defendant, who admitted
to breaking into Ms. Cline’s vehicle and pleaded guilty.

               Shayne Cooper testified that he was employed in the Knoxville Police
Department in 1997 and received a complaint about a “Peeping Tom” at an apartment
complex who was videotaping several young females. Mr. Cooper and other officers
monitored the apartment complex one night and observed the defendant. The officers then
arrested the defendant after a struggle which involved the officers’ deploying pepper spray.
The defendant had possession of “a set of handcuffs, a Halloween mask, a stun gun, a screw
driver, a hair net, and surgical gloves.” Mr. Cooper stated that he found videotaping
equipment in the defendant’s vehicle. On cross-examination, Mr. Cooper noted that the
defendant pleaded guilty. He also testified that the defendant was using a screwdriver and
attempting to pry open a window when the officers apprehended him. He admitted that the
officers did not charge the defendant with any sex-related offenses for this incident. On
redirect-examination, Mr. Cooper testified that a young lady was inside the apartment to
which the defendant had tried to obtain entry.

               The victim testified that, as a result of the defendant’s attacking her, she lived
in fear. She testified that she had moved twice since the incident. She said that she had been
to therapy and taken medications but that nothing “will . . . ever take that away from me.”
She said, “I will be living with this for the rest of my life . . . .”

              The State exhibited several judgments of conviction including convictions of
receiving stolen property and possession of methqualone and marijuana in 1980; sale of
marijuana in 1983; and assault and attempted aggravated burglary in 1999. The prosecution
also introduced a federal conviction of felon in possession of a firearm resulting from the
defendant’s arrest in the instant case. The presentence report reflected a 1993 conviction of
aggravated criminal trespass and a 1992 conviction of disorderly conduct.

            The defense called Ms. Cannon, who explained that the defendant had “a real
messed up home life” and that his father was abusive. She testified that the defendant’s

                                               -8-
mother was not kind to him either and that his parents forced him to live in a shed outside
when he was 13 years old. She testified that the defendant had a “real good heart.” She
described the defendant as a hard worker and testified that he lived with her and her husband
while on parole and that he complied with the conditions of his parole. Ms. Cannon testified
that the defendant’s son died at the age of 26 in a car accident in 2006. She said the two were
close and had worked together at a concrete surfacing company.

              Ms. Cannon testified that the defendant called her the day that Detective Hall
and other officers tried to arrest him. She said that the defendant told her that he attempted
to shoot himself but the gun malfunctioned. She said that she went to the scene and helped
talk the defendant out of the mobile home. She testified that the defendant had no intention
of running from the police or else he would have fled to Mexico where he had relatives. She
also said the defendant was fluent in Spanish. Ms. Cannon testified that the defendant
wanted her to be at the scene before his arrest because he had been beaten by police in the
past.

              The State asked for the maximum sentence for the aggravated rape and the
aggravated sexual battery convictions. The State argued that the defendant was a dangerous
offender and that his sentences should run consecutively. The prosecutor also argued as an
enhancement factor the defendant’s criminal conviction history and that his admitted history
of drug use showed a pattern of prior criminal behavior. The State also noted that the
defendant had violated his community-based sentence from his 1980 convictions.

               The trial court determined that the defendant had a significant previous
criminal history that included incidents in 1993 and 1997 when he stalked young women.
It found that the defendant “had problems while he was on release” but considered it “not a
major factor.”

               The trial court ordered the defendant to serve 25 years as a Range I offender
at 100 percent for both aggravated rape convictions and 20 years as a Range II offender at
100 percent for both aggravated sexual battery convictions. The court ordered the rape
sentences to run concurrently to each other and for the aggravated sexual battery convictions
to run concurrently to each other, but it ordered the aggravated sexual battery sentences to
run consecutively to the rape sentences for an effective sentence of 45 years.

                                      Issues on Appeal

               The defendant presents four issues on appeal. The defendant challenges the
sufficiency of the convicting evidence. The defendant also argues that the trial court erred
by instructing the jury on “flight” and that it erred in admitting Ms. Harrington as an expert.

                                              -9-
Lastly, the defendant challenges his sentence, arguing that the trial court erred in ordering
him to serve the maximum available sentence.

                                I. Sufficiency of the Evidence

               The defendant argues that the evidence weighed against the jury’s verdict of
guilty. He does not contend that the State failed to establish the elements of the crimes of
aggravated rape or aggravated sexual battery, but he challenges the jury’s finding that he was
the assailant that attacked the victim. When an accused challenges the sufficiency of the
evidence, an appellate court’s standard of review is whether, after considering the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson
v. Virginia, 443 U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim.
App. 2003). The rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. Winters, 137 S.W.3d at
654.

                In determining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
at 655. Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford
the State of Tennessee the strongest legitimate view of the evidence contained in the record
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

              The defendant argues primarily that inconsistences between the victim’s
description of the assailant and Ms. Cannon’s description of the defendant undermine the
State’s case. We disagree. The victim described a balding, 190-pound male who “reeked”
of cigarette smoke as her attacker. Detective Hall testified that the defendant was 200
pounds and bald and that the defendant’s home contained ashtrays filled with burned
cigarettes. Further, the defendant’s boots retrieved from his home matched the length of the
muddy boot-print found in the victim’s guest bedroom. The jury clearly did not credit Ms.
Cannon’s description of the defendant and credited the State’s evidence.

              Lastly, the victim testified that the assailant placed his mouth on her breasts.
Swabs taken from her breasts contained saliva with a DNA profile matching the defendant
to the exclusion of the world population. This direct evidence clearly places the defendant
at the scene of the crime and proves his identity as the rapist.



                                              -10-
                The defendant also claims that the fact that the DNA found on the towel
recovered from the dumpster of the apartment complex did not belong to him exonerates him.
However, aside from being found in a dumpster in the same apartment complex, no evidence
suggested that this towel was the one used to cover the victim’s face. Further, the towel was
found with a condom containing the same unknown DNA profile, and the victim specifically
testified that neither she nor the assailant possessed a condom.

                                     II. Jury Instructions

               The defendant next challenges the court’s instructing the jury on “flight.” The
defendant contends that the trial court erred by instructing the jury on flight and the inference
of guilt that may be justified from such flight. The State argues that the instruction was
proper.

               The trial court has a duty “to give a complete charge of the law applicable to
the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see Tenn. R.
Crim. P. 30. To properly charge the jury on flight as an inference of guilt, there must be
sufficient evidence to support such instruction. State v. Berry, 141 S.W.3d 549, 588 (Tenn.
2004). Sufficient evidence supporting such instruction requires “‘both a leaving the scene
of the difficulty and a subsequent hiding out, evasion, or concealment in the community.’”
State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989) (quoting Rogers v. State, 455
S.W.2d 182, 187 (Tenn. Crim. App. 1970) (citing 22A C.J.S. Criminal Law § 625))). Our
supreme court has held that “[a] flight instruction is not prohibited when there are multiple
motives for flight” and that “[a] defendant’s specific intent for fleeing a scene is a jury
question.” Berry, 141 S.W.3d at 589.

                The trial court explained during the motion for new trial hearing that its
instruction on flight was appropriate because the defendant had spoken with the police
approximately 12 days before the officers came to arrest him and that despite the officers’
announcement when knocking on the door, he refused to allow them entry to his home. The
trial court noted that when the officers eventually entered the home, the defendant displayed
a gun which resulted in a lengthy stand-off. The trial court considered this evidence
sufficient to support a flight instruction.

               We recognize the defendant’s concern that a flight instruction was given
despite the defendant’s initial cooperation with law enforcement personnel and the fact that
he never “concealed” himself. However, the record clearly establishes that the defendant left
the scene of the crime, and perhaps more importantly, ran from the police upon their arriving
to take him into custody. He fled to another area of the house where he holed-up, armed, for
an extended period of time. In our view, this behavior satisfies the requirements of “leaving,

                                              -11-
evading, and concealing.”

               Moreover, it is our view that any error occasioned by the giving of the flight
instruction in this case was harmless. The United States Supreme Court and, to some extent,
the supreme court of this state have examined jury instruction errors on a continuum of error,
finding some errors so profound as to defy harmless error analysis while finding some more
akin to other garden variety trial errors. At the beginning of this continuum, we find the
complete deprivation of a public jury trial, which has been deemed structural error not
subject to harmless error analysis. See Waller v. Georgia, 467 U.S. 39, 49 (1984). Similarly,
some jury instruction error, error which strikes at the very heart of an accused’s right to trial
by jury and which “categorically vitiat[es] all the jury’s findings,” Hedgpeth v. Pulido, —
U.S. —, 129 S. Ct. 530, 532 (2008) (citations and internal quotation marks omitted), is also
structural error. See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993). In Sullivan, the Court
determined that “where the instructional error consists of a misdescription of the burden of
proof, which vitiates all the jury’s findings,” the error was not subject to harmless error
analysis because “[a] reviewing court can only engage in pure speculation -- its view of what
a reasonable jury would have done.”2 Id. Structural errors “‘defy analysis by
‘harmless-error’ standards’ because they ‘affec[t] the framework within which the trial
proceeds,’ and are not ‘simply an error in the trial process itself.’” United States v.
Gonzalez-Lopez, 548 U.S. 140, 148-49 (2006) (quoting Arizona v. Fulminante, 499 U.S. 279,
309-10 (1991)). “But ‘structural errors’ are ‘a very limited class’ of errors that affect the
‘framework within which the trial proceeds,’ such that it is often ‘difficul[t]’ to ‘asses[s] the
effect of the error.” United States v. Marcus, No. 08-1341, 2010 U.S. LEXIS 4163, at
*10-11 (May 24, 2010) (citations omitted).

              More common in the continuum are those jury instruction errors that do not
equate to a complete deprivation of the right to trial by jury but nevertheless seriously
implicate both the right to trial by jury and, in many instances, the right to a fair trial, which



        2
         The Court concluded that the erroneous reasonable doubt instruction given at Sullivan’s trial
violated both the Sixth Amendment jury trial right as well as the Fifth Amendment guarantee of due process:

                It is self-evident, we think, that the Fifth Amendment requirement of proof
                beyond a reasonable doubt and the Sixth Amendment requirement of a jury
                verdict are interrelated. It would not satisfy the Sixth Amendment to have
                a jury determine that the defendant is probably guilty, and then leave it up
                to the judge to determine (as Winship requires) whether he is guilty beyond
                a reasonable doubt. In other words, the jury verdict required by the Sixth
                Amendment is a jury verdict of guilty beyond a reasonable doubt.

Sullivan, 508 U.S. at 278.
                                                   -12-
is a component of constitutional due process. See Hedgpeth, — U.S. —, 129 S. Ct. at 532
(observing that “various forms of instructional error are not structural but instead trial errors
subject to harmless-error review”). In Hedgpeth, the Court observed that the omission of an
element of an offense, see Neder v. United States, 527 U.S. 1 (1999), the giving of an
erroneous aider and abettor instruction, see California v. Roy, 519 U.S. 2 (1996), the
misstatement of an element of an offense, see Pope v. Illinois, 481 U.S. 497 (1987), and the
erroneous burden-shifting as to an element of an offense, see Rose v. Clark, 478 U.S. 570
(1986), had all been subjected to constitutional harmless error analysis. See Hedgpeth, —
U.S. —, 129 S. Ct. at 532. Errors in this category require reversal unless the error can be
deemed “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24
(1967) (“[B]efore a federal constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable doubt.”). “Indeed, [the Court
has] said that ‘if the defendant had counsel and was tried by an impartial adjudicator, there
is a strong presumption that any other errors that may have occurred’ are not ‘structural
errors.’” Marcus, 2010 U.S. LEXIS 4163, at *14 (quoting Rose, 478 U.S. at 579). These
errors “‘occur[] during presentation of the case to the jury’ and their effect may ‘be
quantitatively assessed in the context of other evidence presented in order to determine
whether [they were] harmless beyond a reasonable doubt.’ These include ‘most
constitutional errors.’” Gonzalez-Lopez, 548 U.S. at 148-49 (quoting Fulminante, 499 U.S.
at 306-08). When considering this category of error, a reviewing court “should ask whether
the flaw in the instructions ‘had substantial and injurious effect or influence in determining
the jury’s verdict.’” Hedgpeth, — U.S. —, 129 S. Ct. at 531 (citing Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (internal quotation marks omitted in original)). As the Court
explained,

              Consistent with the jury-trial guarantee, the question it instructs
              the reviewing court to consider is not what effect the
              constitutional error might generally be expected to have upon a
              reasonable jury, but rather what effect it had upon the guilty
              verdict in the case at hand. Harmless-error review looks, we
              have said, to the basis on which “the jury actually rested its
              verdict.” The inquiry, in other words, is not whether, in a trial
              that occurred without the error, a guilty verdict would surely
              have been rendered, but whether the guilty verdict actually
              rendered in this trial was surely unattributable to the error.

Sullivan, 508 U.S. at 279 (citations omitted).

               At the far end of the continuum are those instructional errors that do not rise
to the level of a deprivation of either the right to trial by jury or constitutional due process.

                                              -13-
“The Due Process Clause, our decisions instruct, safeguards not the meticulous observance
of state procedural prescriptions, but ‘the fundamental elements of fairness in a criminal
trial.’” Rivera v. Illinois, — U.S. —, 129 S. Ct. 1446, 1454 (2009) (quoting Spencer v.
Texas, 385 U.S. 554, 563-64 (1967)). The Court recognized that “errors of state law do not
automatically become violations of due process,” particularly where “there is no suggestion
. . . that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary
or irrational manner.” Rivera, — U.S. —, 129 S. Ct. at 1455 (citations omitted). It is into
this latter category that the instruction on flight fits. The trial court should not give the flight
instruction if it is unsupported by the evidence; however, we cannot say that the erroneous
giving of the instruction in a case where the jury is otherwise properly instructed and
impartial either vitiates the jury’s verdict or otherwise seriously implicates either the
defendant’s right to trial by jury or to due process. Rather, the error, like many others, is thus
subject to a traditional harmless error analysis. That being said, it is our view that the
instruction in this case, even if erroneous, was harmless given the overwhelming proof of the
defendant’s guilt.

                                       III. Expert Witness

              The defendant next argues that the trial court erred in admitting Ms.
Harrington, the nurse practitioner, as an expert witness.

             The assistant district attorney general asked whether the injuries were
consistent “with an individual sticking his fingers” in the victim’s vagina, and defense
counsel objected, arguing that Ms. Harrington was not an expert and was not qualified to
answer such a question. The trial court opined that she qualified as an expert and asked
whether defense counsel wanted to voir dire the witness. Defense counsel responded,
“Probably not, your Honor.”

              During Ms. Harrington’s testimony, the assistant district attorney general
asked Ms. Harrington about her educational background. Ms. Harrington stated that she
graduated from the Baptist Hospital School of Nursing and spent 15 years in critical care.
She then spent seven years performing gynecological examinations and “a couple of years”
of labor and delivery. The State offered Ms. Harrington as an expert; however, the trial court
stopped the assistant district attorney general before she could specify Ms. Harrington’s
proffered area of expertise.

                Defense counsel then conducted a voir dire examination, and Ms. Harrington
testified that she had taken a 40-hour course on sexual assault examinations through Safe
Haven Center and the University of Tennessee College of Nursing. She also had clinical
training and had been “involved [in the Safe Haven Center] clinically for several months

                                               -14-
prior to this case.” She testified that she received a certificate for her training from the
University of Tennessee College of Nursing in 2006.

               The trial court then allowed the assistant district attorney general to ask
whether the injuries that Ms. Harrington observed on the external area of the victim’s vagina
“would be consistent with an individual sticking two fingers roughly, forcefully in [the
victim’s] vagina and causing those injuries.” Ms. Harrington responded that the injuries were
consistent with the assistant district attorney general’s description. The court never made a
specific finding that Ms. Harrington was an expert, and Ms. Harrington never testified that
her opinion dwelled within a reasonable degree of medical certainty. See e.g., Kilpatrick v.
Bryant, 868 S.W.2d 594, 602 (Tenn. 1993); State v. James Clayton Young, No. 01C01-9605-
CC-00208 (Tenn. Crim. App., Nashville, May 22, 1998).

                The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn.
1997). Rule 702 addresses the need for expert testimony and the qualifications of the expert:
“If scientific, technical, or other specialized knowledge will substantially assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise.” Tenn. R. Evid. 702. Its counterpart, Rule 703, focuses on the
reliability of expert opinion testimony. Generally, the admissibility of expert testimony is a
matter entrusted to the sound discretion of the trial court, and there can be no reversal on
appeal absent clear abuse of that discretion. State v. Copeland, 226 S.W.3d 287, 301 (Tenn.
2007); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

               In the instant case, the trial court never actually stated that Ms. Harrington was
an expert, but we infer it determined she was qualified to give an opinion on whether the
victim’s vaginal injuries were consistent with forced, digital rape. Nevertheless, the record
shows that Ms. Harrington had 30 years’ experience as a nurse with 7 years’ specifically
relating to gynecological care. She had specific training and clinical experience dealing with
sexual assault, and her opinion that the victim’s injuries were consistent with “an individual
sticking two fingers roughly, forcefully in [the victim’s] vagina” certainly lies within her
realm of expertise. We discern no abuse of discretion in admitting this opinion evidence.

                                        IV. Sentencing

              Lastly, the defendant argues that the trial court erred by ordering the defendant
to serve the maximum sentence. When considering a challenge to the length of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (2003). Our case law has long held that the

                                              -15-
presumption of correctness “‘is conditioned upon the affirmative showing in the record that
the trial court considered the sentencing principles and all relevant facts and circumstances.’”
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991)). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Carter, 254 S.W.3d at 344; Ashby, 823 S.W.2d at 169. If our review of
the sentence establishes that the trial court gave “due consideration and proper weight to the
factors and principles which are relevant to sentencing under the Act, and that the trial
court’s findings of fact . . . are adequately supported in the record, then we may not disturb
the sentence even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the event the record fails to demonstrate the
required consideration by the trial court, appellate review of the sentence is purely de novo.
Ashby, 823 S.W.2d at 169.

                Our review of the record shows that the trial court carefully considered all
relevant factors in sentencing the defendant, and our review is de novo with a presumption
that the trial court’s sentence was correct. See Ashby, 823 S.W.2d at 169. The trial court
correctly noted that the defendant had an extensive criminal record that exceeded that
necessary for his Range I and Range II sentences. See T.C.A. § 40-35-114(1) (allowing
sentence enhancement on the basis that “[t]he defendant has a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range”). Further, the trial court noted that two of the defendant’s prior convictions also
involved similar instances of stalking young women. See id. § 40-35-103(5) (“The potential
or lack of potential for the rehabilitation . . . should be considered in determining the . . .
length of a term to be imposed.”). The record, therefore, is sufficient to support the trial
court’s ordering of the maximum available sentences.

                                          V. Merger

                The State’s brief suggests that the defendant’s convictions resulted from one
criminal action for each type of offense and that therefore his convictions should be merged
to reflect one conviction of aggravated rape and one conviction of aggravated sexual battery.
We agree. As a matter of plain error, see Tenn. R. App. P. 36(b); State v. Lewis, 958 S.W.2d
736, 738 (Tenn. 1997), we hold that principles of double jeopardy bar the defendant’s
multiple convictions of aggravated sexual battery and his multiple convictions of aggravated
rape. The defendant was indicted on two alternate theories of aggravated sexual battery and
aggravated rape. Under one theory, the indictment alleged that the defendant caused bodily
injury during the offenses, and, under the other theory, the indictment alleged the use of a
deadly weapon to facilitate the commission of the offenses. According to the bill of
particulars, the State only alleged one instance of aggravated rape (digital penetration of the

                                              -16-
vagina) and one instance of aggravated sexual battery (the defendant’s placing the victim’s
breasts in his mouth). The trial court should have merged the verdicts into one conviction
of aggravated rape and one conviction of aggravated sexual battery. See State v. Billy Harris,
No. W2003-01911-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App., Jackson, Aug. 4, 2004)
(noting that a merger of convictions is appropriate to protect against double jeopardy when
jury convicts a defendant under alternate theories of same offense).

               To effect merger, the proper procedure is to merge the findings of guilt of
aggravated rape into one conviction judgment and of aggravated sexual battery into another
conviction judgment. See State v. Timmy Reagan, No. M2002-01472-CCA-R3-CD, slip op.
at 20 (Tenn. Crim. App., Nashville, May 19, 2004) (“[N]either two sentences nor separate
judgments of conviction should [be] entered, and the one judgment of conviction should
reflect the merger.”). On remand, the trial court should vacate the judgments of conviction
for the alternative counts and amend the judgments for each count to reflect the merger.

                                         Conclusion

              The convicting evidence supports the defendant’s convictions; however, we
remand to the trial court to enter judgments reflecting merger of alternate counts of
aggravated sexual battery and aggravated rape. Further, we hold that the trial court did not
commit reversible error in instructing the jury on flight and qualifying Ms. Harrington as an
expert. Lastly, we do not disturb the sentences ordered by the trial court.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                             -17-
