         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   April 22, 2014 Session

            STATE OF TENNESSEE v. DARYLL SHANE STANLEY

                    Appeal from the Criminal Court for Knox County
                         No. 58548 Bobby R. McGee, Judge




                 No. E2013-01739-CCA-R3-CD - Filed October 15, 2014


Defendant, Daryll Shane Stanley, was charged by presentment with four counts of aggravated
rape, one count of attempted first degree murder, two counts of especially aggravated
kidnapping, and one count of especially aggravated robbery. Defendant was tried in a bench
trial. Defendant appeals from his convictions as charged on all counts except one count of
especially aggravated kidnapping, in which he was acquitted. Defendant was sentenced to 25
years for each of his 7 convictions, and his sentences were ordered to be served consecutively
for a total effective sentence of 175 years. In this appeal as of right, Defendant raises the
following issues for our review: 1) whether the 16-year delay between the presentment of
charges and Defendant’s trial violated his right to a speedy trial; 2) whether he was denied due
process by the State’s failure to preserve evidence; 3) whether the evidence was sufficient to
sustain Defendant’s convictions for four counts of aggravated rape; and 4) whether the trial
court’s comments at the conclusion of the bench trial indicated that the trial court found
Defendant guilty of the lesser-included offense of theft of property in count 8 charging
especially aggravated robbery. Having carefully reviewed the record before us, we affirm the
judgments of the trial court in counts one through six, but we conclude that Defendant’s
conviction for especially aggravated robbery in count eight should be modified to a conviction
for Class A misdemeanor theft and remand this case to the trial court for entry of a modified
judgment.

                      Tenn. R. App. P. 3 Appeal as of Right;
  Judgments of the Trial Court Affirmed in Part; Modified in Part; and Remanded

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

John Halstead, Knoxville, Tennessee, for the appellant, Daryll Shane Stanley.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Leslie Nassios, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

Facts

       The victim in this case testified that on May 21, 1994, she was living in an apartment
on Citrus Street in Knoxville. Defendant was a “friend of the family” whom she had seen
“five or six times.” On the night of the incident, she was watching television and eating a
snack when Defendant knocked on her door between 11:00 p.m. and 11:30 p.m. She opened
the door, and Defendant asked if a mutual friend named Bobby was at her house. She told
Defendant that Bobby was not there, and Defendant asked the victim for a glass of water.
Defendant and the victim sat on the couch and “talked about different things, just
conversation.” During their conversation, Defendant suddenly “pounced from one end of the
couch to the other” and grabbed the victim’s neck. Defendant pinned down the victim and
told her to “[s]hut the f*** up or I’m gonna kill you.” Defendant told the victim, “I’m gonna
f*** you, and then I’m gonna leave. If you don’t say anything, I’m not gonna kill you.”
Defendant put the victim “in a headlock” and forced her into the kitchen. Defendant could
not find any knives, but he found a large carving fork and put it against the victim’s throat and
told her not to scream.

        The victim’s testimony described the chronology of events as follows. Defendant
forced the victim into the bedroom. Defendant “forced [the victim] onto the bed and he raped
[her] vaginally.” Defendant then sat on the bed “trying to decide what his next move was
going to be.” Defendant then forced the victim down again “and this time, he raped [her]
anally.” Defendant found scarves and pantyhose and bound the victim’s hands and feet.
Defendant taped the victim’s mouth with masking tape. Defendant then raped the victim
again vaginally. The victim testified, “at some point in time, he raped me again.” She
testified that Defendant found scissors, and he was straddling her and “nipping at [her] with
the scissors” on her breasts. Defendant threatened to cut off the victim’s nipples. Defendant
was “stroking [the victim’s] face and saying, ‘I’ve got your life in my hands right now, I could
kill you if I wanted to.’” Defendant was repeating to the victim “over and over again, do you
want to die, do you want to live[?]” Defendant choked the victim until she passed out. When
the victim woke up, she sat up and “blood spewed out of [her] nose and out of [her] mouth.”
The tape had come off of the victim’s mouth. She testified that the room was dark, but she
saw “a figure rushing out.” The victim screamed for help. She scooted into her living room,
and she saw in a mirror that the scissors were “hanging out of [her] throat.” She screamed



                                               -2-
again, and the scissors fell out of her neck. She tried to cut herself free with the scissors but
was unable to do so. She scooted outside and screamed for help.

        The victim testified that she was hospitalized for five days. She suffered pain from her
injuries. The victim’s eyes were severely bloodshot. She underwent surgery for the wound
in her neck. She testified that she was unable to eat solid food until the stitches in her stab
wound were removed and her throat healed. She testified that she experienced residual effects
from her injuries, including numbness in the left side of her face and ear. She also testified
that she suffers from panic attacks, for which she takes medication, as a result of the incident.

        During the incident, Defendant told the victim that he was going to take her car and
that he needed money. Defendant found the victim’s purse and took all of her cash and took
her car. The victim later recovered her car in Pensacola, Florida.

       Kathy Wrinklestein woke up around 3:00 a.m. on May 22, 1994. She heard the victim
screaming for help from outside her bathroom window. Ms. Wrinklestein yelled outside,
“lady, are you okay, what’s wrong?” The victim responded that she had been raped and
stabbed. Ms. Wrinklestein called 911. She woke up her brother-in-law, and they both walked
outside and found the victim lying on the grass. The victim’s hands were tied behind her back
and she was bleeding. Ms. Wrinklestein testified that the victim had been “stabbed in the
neck, and her eyes were bleeding.” Ms. Wrinklestein covered the victim with a blanket
because the victim was not wearing any clothes. Ms. Wrinklestein and her brother-in-law
stayed with the victim until the police arrived.

        Tammy Yeager was an emergency room nurse on May 22, 1994. Ms. Yeager testified
that she reviewed the notes on the victim and learned that the victim had a penetrating wound
in her neck, obvious choking trauma, and the victim’s thighs were covered in blood and feces.
The victim had bruises, contusions, and dried blood all over her body. The victim also had
rope burns on her wrists and ankles.

        Joe Cox was a crime scene specialist with the Knoxville Police Department at the time
of the incident. He photographed the scene and recovered several items, including the
scissors, pieces of a scarf and pantyhose, tape, a sheet, the sleeve from a black dress, and a
man’s white shirt. Several other items were taken from the scene, but Cox testified that none
of the items could be located. Cox testified that he lifted a latent print from a glass in the
victim’s bedroom. Cox went to the hospital to speak to the victim. He observed bruises on
the victim’s neck, wrists, and ankles. He recovered the rape kit from the hospital, but it had
also been lost.




                                               -3-
        Investigator Tom Styles interviewed the victim at the hospital. Investigator Styles
testified that the victim told him that she was raped three times by Defendant. He testified
that it was possible he had mistakenly noted in his report that the victim stated she was raped
three times and that it may have been more. He also testified that the victim was emotional
because “[s]he had been badly mistreated.” Investigator Styles testified that the victim’s car
was located in Pensacola, Florida. He also learned on June 4, 1994, that Defendant was in
custody in Oklahoma.

      Arthur Bohanan of the Knoxville Police Department examined the latent print lifted
from a drinking glass in the victim’s apartment and determined that the print matched
Defendant’s left ring and left middle fingers.

        Detective Dennis Davis of the Del City Police Department in Del City, Oklahoma,
testified that he interviewed Defendant on June 4, 1994. The video recording of the interview
was played for the trial court. The transcript from the interview shows that Detective Davis
read Defendant his rights, and Defendant waived his rights. Detective Davis asked Defendant
if he had ever hurt a woman before, and Defendant admitted that he had. Detective Davis
asked Defendant about a rape charge in Knoxville, and Defendant said he “wouldn’t really
call it rape.” Defendant stated that the victim had consented to having sex with him.
Detective Davis asked Defendant if he had hurt the victim or lost his temper with her, and
Defendant replied, “Probably did. I lose it sometimes and I don’t know where I’m at.”
Defendant told Detective Davis that he had been staying at the mission in Knoxville, and on
the night of the incident, he arrived late and was not allowed to stay there, “so [he] just went
and kind of freaked out.” Defendant stated that he “probably need[ed] a whole lot of
counseling.” Defendant explained what occurred between him and the victim as follows:

        I just – I recall – I kind of a – got a little rough at first, I grabbed her. She
        asked me what I wanted. And I said I was waiting to have sex with her.
        And that’s when she said ok. She said, let’s just lay down here on the floor
        and do it. She wasn’t like freaking out or nothing like that and so we went
        into the bedroom. Then we had sex and stuff and the next thing I know I’m
        on the road. Freaking out.

       Detective Davis asked Defendant if he beat the victim, and Defendant replied, “I really
don’t know. I’m not going to say I didn’t do anything – I just don’t know, you know, I freak
out.” Defendant stated that he did not know what he had done and that he did not know if he
had hurt or killed the victim. Defendant stated that the victim had undressed herself after he
“told her to and she did.” Defendant denied that he tied the victim’s hands and feet.
Detective Davis asked Defendant if he remembered hurting the victim, and Defendant replied,
“I had a feeling . . . I had a gut feeling that I’d done something – pretty bad.” Defendant

                                               -4-
stated, “I don’t remember what I’ve done but I had a feeling I’d done something bad. That’s
why I had to leave [Knoxville].” Defendant stated that he left Knoxville in the victim’s car.
He stated that he left the victim’s car in a parking lot at Pensacola Beach.

       Defendant did not testify in his own behalf or present any other proof.

Analysis

Right to speedy trial

        Defendant contends that the trial court erred in denying his motion to dismiss based
on a violation of his right to a speedy trial. The United States and Tennessee Constitutions
guarantee the criminal defendant the right to a speedy trial. U.S. Const. amend. VI; Tenn.
Const. art. I, § 9; State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997). The right to a speedy trial
is also statutory in Tennessee. See Tenn. Code Ann. § 40-14-101.

        When an accused seeks the dismissal of charges based upon the denial of the
constitutional right to a speedy trial, the accused must establish a period of delay that is
“presumptively prejudicial.” State v. Jefferson, 938 S.W.2d 1, 12 (Tenn. Crim. App. 1996)
(citing Doggett v. U.S., 505 U.S. 647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992); Barker
v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). The length of the
delay is dependent upon the peculiar circumstances of each case, and the delay that can be
tolerated for “an ordinary street crime” is generally much less than for a serious, complex
felony charge. Barker, 407 U.S. at 530-31, 92 S. Ct. 2182. A delay of one year or longer
marks the point at which courts deem the delay unreasonable enough to trigger further inquiry.
Doggett, 505 U.S. at 652 n. 1, 112 S. Ct. 2686; Utley, 956 S.W.2d at 494.

         Clearly, the 16-year delay between the issuance of the presentment and Defendant’s
trial is sufficient to trigger an analysis of the remaining three factors. The second factor
enunciated in Barker is the reason for the delay. The reasons for delay generally fall into one
of four categories: (1) intentional delay to gain tactical advantage over the defense or delay
designed to harass the defendant; (2) bureaucratic indifference or negligence; (3) delay
necessary to the fair and effective prosecution of the case; and (4) delay caused, or acquiesced
in, by the defendant. The first type of delay (intentional) is weighed heavily against the state.
The second type (negligence) is also weighed against the state although not as heavily as
deliberate delay. The third type of delay is, by definition, justifiable and is not weighed
against either party. The fourth type of delay, which is caused or acquiesced in by the
defendant, is weighed against the defendant. State v. Wood, 924 S.W.2d 342, 346-347 (Tenn.
1996).



                                               -5-
        In its order denying Defendant’s motion to dismiss, the trial court found that the State
was guilty of negligence in causing the delay but that the State did not act intentionally in
order to gain a tactical advantage. The State knew that Defendant was in Oklahoma in 1994,
yet the State waited until Defendant had completed serving his sentence in Oklahoma before
having Defendant extradited to Tennessee. In their briefs, neither the State nor Defendant
challenge the trial court’s finding regarding the reason for the delay. Defendant asserts that
the delay was the result of the State’s “gross bureaucratic indifference,” and the State
acknowledges negligence. From our review of the record, however, we find no evidence of
bad faith on the part of the State. Instead, the delay in the instant case resulted from the
State’s negligence in failing to actively pursue Defendant’s extradition so that the charges
might be timely prosecuted. This factor must be weighed in Defendant’s favor.

        The third factor examines whether Defendant asserted his right to a speedy trial. We
recognize that “the failure to demand a speedy trial is not a waiver of the right, but is one of
the factors to be considered in the ultimate decision . . . .” State v. Bishop, 493 S.W.2d 81,
84 (Tenn. 1973). The primary burden is on the prosecutor and the courts to assure cases are
brought to trial on a timely basis. Nonetheless, a defendant’s assertion or failure to assert the
right to speedy trial is a factor in the overall balancing test. In considering this factor, the
Barker court noted that a defendant’s assertion of a speedy trial right is entitled to strong
evidentiary weight in determining whether the right has been denied, and failure to assert the
right will make it difficult to prove it was denied. Barker, 407 U.S. at 531-32.

        The trial court found that Defendant acquiesced in the delay. While Defendant
acknowledges that he failed to demand a speedy trial during the 16-year delay, he attributes
his failure to his limited experience with the criminal justice system and to a “psychotic
breakdown” he suffered while incarcerated in Oklahoma. Nevertheless, this factor weighs
in favor of the State.

       Finally, the trial court found that Defendant failed to show that he suffered any actual
prejudice as a result of the delay. Defendant asserts that he was prejudiced by the loss of the
audiotape recording of his interview with detectives in Oklahoma; the death of his mother;
fading witness memories; the loss of the rape kit; the loss of his ability to have his sentences
run concurrently with his sentence in Oklahoma; and the loss of his mental health records.
The trial court found that Defendant had failed to show that he suffered prejudice by the
delay, and we conclude that the record supports the trial court’s finding.

        Regarding the audiotape recording of the Oklahoma interview, Defendant argues that
it “likely would have provided exculpatory evidence” on the issue of Defendant’s mental
health at the time he committed the offenses in this case. On cross-examination, Detective
Davis testified that he “believe[d] [he] had an audio recorder going, but it didn’t record [the

                                               -6-
interview].” He testified that if there was an audio recording of the interview, he did not
know what happened to it. Thus, initially we note that it is unclear whether the audio
recording was lost due to the delay in prosecution, or whether an audio recording of the
interview was never even made.

        The importance of an audio recording, Defendant contends, is that the video recording
of the interview stopped for approximately 11 minutes because Detective Davis had to replace
the battery in the recorder. Defendant argues that during that 11-minute gap in the video
recording, Defendant made a statement to Detective Davis about hearing voices in his head.
Detective Davis testified that his handwritten notes taken during the interview showed that
Defendant “stated that he heard a voice in his head about every seven days that tells him to
have sex.” He testified that the statement was “probably” made during the 11-minute gap
before he realized that the battery needed to be replaced. In its brief, the State raises an issue
as to the authenticity of the handwritten notes which were admitted as an exhibit to Detective
Davis’ testimony. However, having reviewed the notes contained in the record and the
testimony of Detective Davis, we conclude that the record supports that Defendant made the
statement that he heard voices in his head.

        Nevertheless, we conclude that other evidence in the record does not indicate that
Defendant had a mental health issue at the time of the offenses in this case. The presentence
report prepared by the Oklahoma Department of Corrections prior to Defendant’s sentencing
in 1996, two years after the offenses in this case, indicates that Defendant was admitted into
Saint Joseph’s Hospital in Memphis at the age of 16 for counseling, but his parents removed
him from the program after two months. The report does not indicate any other mental health
history. Defendant underwent a psychiatric evaluation in 1995 to determine his competency
to stand trial in Oklahoma. The report concluded that Defendant was competent to stand trial
and noted that Defendant was “personality disordered which create[d] difficulties for him
(temper, angry at women, poor insight and judgement [sic], tendency to abuse alcohol and
drugs, authority problems, etc.).” Defendant asserts that “[t]hat kind of apparently superficial
evaluation is not something that should be relied on to foreclose the possibility that
[Defendant] had a mental health problem at [the time of the offenses].” We do not make that
determination however. We only examine whether Defendant was prejudiced by the apparent
loss of an audio recording of his statement to Detective Davis that he heard voices telling him
to have sex, and we conclude that Defendant was not prejudiced.

       Defendant also did not suffer prejudice due to the death of his mother in 2003.
Defendant asserts that his mother “could have fleshed out the conversation she had with
[Defendant]” one week before the offense in this case in which he told his mother that he
needed to go to the hospital because he was “freaking out.” Defendant told Detective Davis
during his interview that “about a week ago, before I even got on the road I asked my mom

                                               -7-
if it would cost anything to go to a hospital. You know for some counseling.” The State
argues that had Defendant’s mother testified at trial, she could have corroborated Defendant’s
statement, but the absence of her corroboration did not prejudice Defendant. We agree with
the State. Defendant’s statement was presented to the trial court as evidence. Defendant has
failed to state how he was prejudiced.

        Defendant also asserts that he was prejudiced by fading witness memories. Defendant
cites Ms. Wrinklestein’s inability to recall who gave her the blanket or sheet she used to cover
the victim when she found her in the grass; the victim’s inability to recall what she said to
investigators on the day of the attack; crime scene specialist Joe Cox’s inability to recall
certain details of the investigation, including whether the rape kit was sent to the Tennessee
Bureau of Investigation; and Officer Cole’s inability to recall whether he cut the pantyhose
off of the victim’s hands and feet. However, in light of the overwhelming evidence in this
case, we are unable to see how these deficiencies in witnesses’ memories prejudiced
Defendant.

       Similarly, the loss of the rape kit in this case did not prejudice Defendant because, as
the State points out, Defendant admitted that he had sex with the victim. Defendant told
Detective Davis, however, that the sex was consensual. Defendant also admitted that he drove
the victim’s car to Florida. Therefore, Defendant’s identity was not an issue in this case.

        Defendant asserts that he was prejudiced by the delay in prosecution because he lost
the ability to have his sentences in this case run concurrently with his Oklahoma sentences.
Our supreme court has held that it did “not agree that the lost possibility of concurrent
sentencing is enough in and of itself to require dismissal on speedy trial grounds.” State v.
Simmons, 54 S.W.3d 755, 761 (Tenn. 2001). The court in Simmons found that the defendant
failed to show a “statute mandating concurrent sentences,” and that he had failed to establish
that he “probably would have obtained concurrent sentences, or that he was a favorable
candidate for concurrent sentencing.” Id. The same is true in this case.

       Finally, Defendant asserts that he was prejudiced by the loss of mental health records.
Defendant argues that the unavailability of the following records prevented him from
presenting a mental health defense: records from Saint Joseph’s Hospital, where he was
admitted for two months at the age of 16; records from Job Corps in Knoxville from 1992 and
1993; records from “group homes” Defendant stayed at as a child; and records from
Oklahoma Department of Corrections kept during Defendant’s incarceration.

       The Oklahoma presentence report shows that Defendant was admitted to Saint Joseph’s
Hospital at the age of 16 (1987 or 1988) “for counseling but his parents removed him from
the program after two (2) months.” The report also states that Defendant was diagnosed as

                                              -8-
being “hyperactive” at the age of 18 months and that his mother “advised that the diagnosis
today would be Attention Deficit Disorder.” Defendant asserts that he tried to obtain his
records from Saint Joseph’s Hospital and was informed that the records were no longer
available because records are destroyed after ten years. These records would likely have been
available in 1996 when the presentence report was prepared. Also, Defendant’s mother
presumably had an opportunity to explain Defendant’s mental health condition when the
presentence report was being prepared, and she only stated that Defendant had Attention
Deficit Disorder. Defendant has not shown how the unavailability of these records prejudiced
him.

       Defendant argues that “[i]t is certainly possible that the Job Corp records could have
contained mental health evaluations as part of the process of determining the need of
individuals in the program.” However, Defendant has not provided anything to show that a
mental health evaluation was performed or that Job Corp regularly conducts mental health
evaluations. Therefore, Defendant has not shown prejudice. Similarly, Defendant has not
shown prejudice due to the lack of records from the group homes he attended as a child.
There is nothing in the record to indicate that Defendant underwent mental health evaluations
from the group homes or that he was required to do so.

       Finally, the record contains Defendant’s mental health records from the Oklahoma
Department of Corrections from 2001 to 2010. Defendant argues that he was prejudiced by
the loss of records for the period of 1997 to 2001. Defendant presumes that records for
Defendant were kept during that time period. An affidavit by a manager of the records for the
Oklahoma Department of Corrections states that “there are no other records in my
possession[.]” Defendant asserts in his brief that “there is no question that any other records
simply no longer exist due to the passage of time.” However, there is nothing to indicate that
the Oklahoma Department of Corrections destroys records or that records for Defendant prior
to 2001 ever existed. As the State points out, the absence of records prior to 2001 could
indicate that Defendant did not begin displaying mental health issues until 2001. We cannot
conclude based on the record before us that Defendant suffered prejudice from the absence
of these records.

        Weighing all of the Barker factors, we conclude that there has not been a denial of
Defendant’s Sixth Amendment right to a speedy trial. Defendant is not entitled to relief on
this issue.

Ferguson issues

       Defendant next contends that the loss of evidence in this case, specifically the
audiotape recording of his interview in Oklahoma and the rape kit, deprived him of a

                                              -9-
fundamentally fair trial and violated his due process rights as outlined in State v. Ferguson,
2 S.W.3d 912 (Tenn. 1999).

        In Ferguson, our supreme court “explained that the loss or destruction of potentially
exculpatory evidence may violate a defendant’s right to a fair trial.” State v. Merriman, 410
S.W.3d 779, 784 (Tenn. 2013) (citing Ferguson, 2 S.W.3d at 915-16. The court observed that
“the due process required under the Tennessee Constitution was broader than the due process
required under the United States Constitution” and rejected the “bad faith” analysis espoused
by the United States Supreme Court in favor of “a balancing approach in which bad faith is
but one of the factors to be considered in determining whether the lost or destroyed evidence
will deprive a defendant of a fundamentally fair trial.” Merriman, 410 S.W.3d at 784-85
(quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)
(holding that “[u]nless a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial of due process of
law”). Our supreme court “observed that fundamental fairness, as an element of due process,
requires a review of the entire record to evaluate the effect of the State’s failure to preserve
evidence.” Id. at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).

        To facilitate this “balancing approach,” our supreme court ruled that the trial court
must first “determine whether the State had a duty to preserve the evidence,” Merriman, 410
S.W.3d at 785, and observed that the State’s duty to preserve was “limited to constitutionally
material evidence.” Id. The court held that to be “constitutionally material,” the evidence
“must potentially possess exculpatory value and be of such a nature that the defendant would
be unable to obtain comparable evidence by other reasonably available means.” Id. (citing
Ferguson, 2 S.W.3d at 915, 918). “If the trial court determines that the State had a duty to
preserve the evidence, the court must determine if the State failed in its duty.” Merriman, 410
S.W.3d at 785 (citing Ferguson, 2 S.W.3d at 917). If the trial court concludes that the State
lost or destroyed evidence that it had a duty to preserve, the trial court must then consider
three factors to determine the appropriate remedy for the State’s failure: (1) [t]he degree of
negligence involved; (2) [t]he significance of the destroyed evidence, considered in light of
the probative value and reliability of secondary or substitute evidence that remains available;
and (3) [t]he sufficiency of the other evidence used at trial to support the conviction.
Merriman, 410 S.W.3d at 785 (quoting Ferguson, 2 S.W.3d at 917). “If the trial court
concludes that a trial would be fundamentally unfair without the missing evidence, the trial
court may then impose an appropriate remedy to protect the defendant’s right to a fair trial,
including, but not limited to, dismissing the charges or providing a jury instruction.”
Merriman, 410 S.W.3d at 785-86.

      We review the trial court’s decision concerning the fundamental fairness of a trial
conducted without the missing evidence under a de novo standard of review. Id. at 791. If

                                              -10-
this court concludes that the trial would be fundamentally unfair in the absence of the lost
evidence, this court will apply an abuse of discretion standard to review the appropriateness
of the remedy imposed by the trial court. Id. at 792.

        With respect to the audio recording of Defendant’s interview with Oklahoma
authorities, we have already observed that there is nothing in the record to indicate that an
audio recording ever existed. The State has a duty to preserve evidence in its possession.
Detective Davis testified that he did not know whether the interview was being audio recorded
or just video recorded. Also, he testified that if an audio recording was made, he did not know
what happened to it. The State asserts that there is nothing in the record to show that an audio
recording was provided to the State by the Oklahoma authorities. The State is required to
disclose to the defendant and make available for inspection or copying, any of the defendant’s
recorded statements if “the statement is within the [S]tate’s possession, custody or control.”
Tenn. R. Crim. P. 16(a)(B)(i)(I). Furthermore, “the prosecutor’s duty to disclose extends not
only to material in his or her immediate custody, but also to statements in possession of the
police which are normally obtainable by “exercise of due diligence.” State v. Hicks, 618
S.W.2d 510, 514 (Tenn. Crim. App. 1981). There is nothing in the record to indicate that the
State possessed and lost an audio recording of the interview or that the State could have
obtained it from Oklahoma police through the exercise of due diligence. Detective Davis
could not recall whether an audio recording was made or what happened to it if it was made.

         Defendant also argues that the trial court should have granted his motion to dismiss
based on the State’s loss of the rape kit. The State acknowledges that it had a duty to preserve
the rape kit and that failure to do so was negligence. Defendant argues that the rape kit had
exculpatory value; however, as we noted earlier in this opinion, Defendant admitted in his
videotaped interview that he had sex with the victim and left in the victim’s car afterward.
Therefore, the identity of Defendant was not at issue in this case. Defendant told investigators
that he had consensual sex with the victim. However, the evidence at trial was
overwhelmingly sufficient to prove that the victim did not consent. In light of the evidence
at trial, including the victim’s testimony, the neighbor’s testimony, evidence of the severity
of the victim’s injuries, and Defendant’s own statement, we conclude that the loss of the rape
kit did not deprive Defendant of a fundamentally fair trial.

Sufficiency of the evidence

         Defendant contends that his convictions for counts two and four of the presentment,
both alleging anal rape, are not supported by the evidence. Alternatively, Defendant argues
that if counts two and four are considered different theories of the same offense, the two
counts should have been merged into a single conviction. The State responds that the proof
at trial supports four separate convictions for aggravated rape and that any variance between

                                              -11-
the presentment and the proof at trial is not fatal, and Defendant did not suffer prejudice as
a result of the variance.

       The presentment alleged four counts of aggravated rape under Tenn. Code Ann. § 39-
13-502. Two counts alleged aggravated rape by vaginal penetration, and two counts alleged
aggravated rape by anal penetration. The victim testified at trial that Defendant raped her
once vaginally, then once anally, then vaginally again, and she testified that Defendant raped
her a fourth time, but she did not testify whether the rape was vaginal or anal.

        We disagree with Defendant’s contention that the proof is “constitutionally insufficient
as to one of the counts of anal rape.” When an accused challenges the sufficiency of the
convicting evidence, our standard of review is whether, after viewing 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. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The trier of fact, not this court, resolves questions
concerning the credibility of the witnesses, and the weight and value to be given the evidence
as well as all factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932
(Tenn. Crim. App. 1995). Nor may this court reweigh or re-evaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest
legitimate view of the evidence and all inferences therefrom. Id. Because a verdict of guilt
removes the presumption of innocence and replaces it with a presumption of guilt, the accused
has the burden in this court of illustrating why the evidence is insufficient to support the
verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of [the] evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

       Viewing the evidence in the light most favorable to the State, the evidence is sufficient
to support four separate offenses of aggravated rape. The victim testified that Defendant
raped her four times. With respect to the fourth aggravated rape, she testified that he “raped
[her] again.” She testified that the rapes were painful and caused tearing and blood. While
the victim did not specify, as she did with the other three rapes, whether the fourth rape was
by vaginal or anal penetration, any rational trier of fact could have found that Defendant
committed four separate aggravated rapes against the victim.

       Defendant suggests that counts two and four were alternate theories of the same
offense and should have been merged into a single conviction. When the State proceeds
under alternate theories of a crime, those offenses must be merged due to double jeopardy
concerns. State v. Hurley, 876 S.W.2d 57, 70 (Tenn. 1993); State v. Addison, 973 S.W.260,
267 (Tenn. Crim. App. 1997). In this case, the evidence clearly supports four separate counts
of aggravated rape.

                                              -12-
         Defendant also argues that “the proof was constitutionally insufficient as to one of the
counts of anal rape” due to a variance between the presentment and the proof at trial. “A
variance between an indictment or a subsequent bill of particulars and the evidence presented
at trial is not fatal unless it is both material and prejudicial.” State v. Shropshire, 45 S.W.3d
64, 71 (Tenn. Crim. App. 2000) (citing State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984)).
A variance between an indictment and the proof in a criminal case is not material where “the
allegations and proof substantially correspond, the variance is not of a character which could
have misled the defendant at trial and is not such as to deprive the accused of the right to be
protected against another prosecution for the same offense.” Moss, 662 S.W.2d at 592; see
also State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993). A defendant must demonstrate
prejudice in the form of unfair surprise or inability to prepare an adequate defense. State v.
Sherman, 266 S.W.3d 395, 409 (Tenn. 2008) (citing State v. Byrd, 820 S.W.2d 739, 741
(Tenn. 1991)).

       We conclude that the variance between the presentment in this case and the proof at
trial was neither material nor prejudicial to Defendant. The presentment was sufficient to
inform Defendant that he was accused of committing four counts of aggravated rape against
the victim. Whether the fourth rape that the victim testified to was vaginal or anal was not
material. Defendant is not entitled to relief on this issue.

Ambiguity in court’s verdict

        Finally, Defendant asserts that the trial court erred by entering a judgment of
conviction in count eight charging especially aggravated robbery, where the trial judge made
the following comments at the conclusion of the bench trial:

        In count eight, clearly, he did – he did commit theft – felony theft against
        her. I don’t know if there’s an amount, let’s just say felony theft and I guess
        without any indication of an amount, it will have to be class E felony theft,
        but the court will find him guilty of that count.

       At the sentencing hearing, Defendant argued that he should be sentenced for
misdemeanor theft in count eight because the court found him not guilty of especially
aggravated robbery, but rather the lesser-included offense of felony theft, and there was no
proof of the value of the property taken from the victim. The trial court noted that it had not
used a verdict form, and the trial court attempted to clarify its verdict in count eight,

        I’m pretty sure what I was talking about was that in order to find someone
        guilty of robbery, there has to be a theft, and I was just remarking somewhat
        idly, I think, that I didn’t know what grade of theft it was, but it wouldn’t –

                                              -13-
        nevertheless and the – and whatever degree of theft it was, it was theft
        accomplished by force, the use of a deadly weapon, and serious bodily injury
        was a result or was committed during the theft, and that I – I’m – it’s my
        recollection that although I wasn’t sure what level of theft it was, and it – it
        certainly was theft and that made it – considering – considering the weapon
        and the injuries, that made it especially aggravated robbery.

        Defendant interprets the trial court’s comments as a finding that Defendant was not
guilty of especially aggravated robbery, but rather felony theft. The trial court’s comments
as to count eight are confusing, and we agree that without a verdict form, it is difficult to
decipher what the trial court intended by the comments. While the trial court stated that it
found Defendant “guilty of that count,” the only offense mentioned by the trial court as to that
count was “class E felony theft.” As to the other counts in the indictment, the trial court stated
the offenses in announcing its verdict. For example, the trial court stated, “[i]n count three,
aggravated rape vaginally, the Court finds the defendant guilty.” We also note that during the
court’s announcement of the verdicts, there were several times the prosecutor interjected to
correct or clarify the counts of the presentment to the court; however, during the court’s
announcement in count eight, the prosecutor remained silent. There was opportunity for the
prosecutor to ask for clarification regarding the court’s verdict in count eight, and the State’s
failure to request clarification weighs in favor of Defendant.

       The State notes that the court minutes reflect that the trial court found Defendant guilty
of especially aggravated robbery. Ordinarily, when conflicts exist between evidence
transcripts and court minutes, the transcripts control. State v. Clark, 67 S.W.3d 73, 79 (Tenn.
Crim. App. 2001) (citing State v. Moore, 814 S .W.2d 381, 383 (Tenn. Crim. App. 1991)).

        We conclude that the trial court’s comments during its announcement of the verdict
indicate that the trial court found Defendant guilty of felony theft. The value of the property
taken is not a required element for a finding of guilt for especially aggravated robbery. See
Tenn. Code Ann. §§ 39-13-401(a), -403(a). In announcing its verdict in count eight, the trial
court did not mention any of the required elements of especially aggravated robbery (the use
of a deadly weapon and serious bodily injury to the victim), as it later did at the sentencing
hearing. In a similar situation involving a jury trial, where the jury announced a verdict of
“not guilty,” and the jury was discharged, in effect ending the trial, this Court held that the
trier of fact (the jury) could not later correct a mistake to impose guilt of a lesser included
offense. See State v. Green, 995 S.W.2d 591 (Tenn. Crim. App. 1998).

       We therefore modify Defendant’s conviction for especially aggravated robbery to a
conviction for misdemeanor theft because there was no proof at trial of the value of the
victim’s car.

                                              -14-
      In conclusion, we affirm the judgments of the trial court as to counts one through six.
We modify Defendant’s conviction in count eight to Class A misdemeanor theft and
accordingly set his sentence at 11 months and 29 days. This case is remanded for entry of a
modified judgment.


                                                   _________________________________
                                                   THOMAS T. WOODALL, JUDGE




                                            -15-
