State of Tennessee v. Johnny Frank Royston, Sr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 20, 2014

STATE OF TENNESSEE v. JOHNNY FRANK ROYSTON, SR.

Appeal from the Circuit Court for Sullivan County
No. S58497 Robert H. Montgomery, Jr., Judge

No. E2014-00018-CCA-R3-CD - Filed January 13, 2015

The defendant, Johnny Frank Royston, Sr., was tried by a jury and convicted of attempted
second degree murder, a Class B felony; two counts of aggravated rape, a Class A felony;
especially aggravated kidnapping, a Class A felony; and aggravated kidnapping, a Class B
felony. The defendant was sentenced to an effective sentence of fifty years’ imprisonment.
On appeal, the defendant challenges: (1) the sufficiency of the evidence, including the trial
court’s instructions pursuant to State v. White, 362 S.W.3d 559, 577 (Tenn. 2012); (2) an
alleged amendment to or variance from the indictment; (3) the denial of his motion for a
change of venue; (4) the “contamination” of certain evidence; (5) the trial court’s alleged
limits on jury deliberations; (6) alleged prosecutorial misconduct in closing arguments; and
(7) cumulative error. Having conducted a thorough review of the record, we conclude that
the defendant is not entitled to relief, and we affirm the judgment of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D AVID A.
P ATTERSON, S P.J., joined. C AMILLE R. M CM ULLEN, J., filed a separate concurring opinion.

Randall D. Fleming, Kingsport, Tennessee, for the appellant, Johnny Frank Royston, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Barry P. Staubus, District Attorney General; and Teresa Nelson, Assistant District
Attorney General, for the appellee, State of Tennessee.
 OPINION

FACTUAL AND PROCEDURAL HISTORY

The defendant was indicted for attempted first degree (premeditated) murder, two
counts of aggravated rape, and two counts of especially aggravated kidnapping. The offenses
were charged as a result of an attack during which the victim, whose blood tested positive
for several depressants that she had not voluntarily consumed, lost consciousness and awoke
to find that she was tied up and the defendant was raping her and strangling her with rope.
The State introduced evidence regarding the victim’s physical condition after the attack, as
well as testimony that the defendant had been trying to purchase drugs earlier the same day
for the stated purpose of drugging a woman.

The defendant lived in a rural area, in a camper located on the property of Danny
Hunt. Mr. Hunt also owned a store in the city and, above the store, an apartment that was
rented to Adam Sutton and Steven White. Mr. Hunt sometimes shared the apartment with
his renters and sometimes stayed at a cabin on his rural property. The cabin was some
distance from the camper and was accessible by a separate drive, and the two residences were
linked by a grassy road. Mr. Hunt testified that the camper that the defendant lived in was
about 300 square feet.

On the Saturday prior to the assault, Mr. Hunt introduced the defendant to Mr. White
at a sports bar. The next day, around lunchtime, the defendant called Mr. White and asked
if he knew where to get “mickeys,” “roofies,” or xanax. He explained he wanted to drug a
woman and take pictures of her “to give to her husband to show that she was a whore.” The
defendant told Mr. White, who had prior convictions for theft and for the sale of
dihydrocodone, that he had gotten Mr. White’s phone number from “two guys.” Mr. White
testified that he had been on probation at the time, was trying to “stay clean,” had cut off his
old friends, and did not give the defendant any drugs. Mr. White’s phone records confirmed
that the defendant telephoned him on August 22, 2010, at 10:21 and 10:28 a.m.

The victim, R.H.,1 testified that she had known the defendant for about one year at the
time the crimes were committed. She first became acquainted with him when her relatives
allowed him to stay in a van on their property and in their garage. The victim had been in
the camper that was the scene of the assault on two occasions prior to the night of the assault,

1
It is the policy of this court to identify victims of sexual assault only by their initials.

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helping the defendant clean in exchange for money on one occasion and cigarettes on
another.

On Sunday, August 22, 2010, Mr. Hunt, Mr. Sutton, and the defendant were all at the
cabin; Mr. Sutton and the defendant were doing odd jobs around the property for Mr. Hunt.
The victim, who had been out of town, was on her way back to Bristol, and she spoke with
the defendant on the phone regarding the possibility of cleaning Mr. Hunt’s cabin or
apartment for money. Accordingly, her friend dropped her off not at her home but at the end
of the driveway leading to Mr. Hunt’s cabin, and she walked down the driveway to the cabin.
The victim was wearing white capris pants and a white t-shirt. Because she had been out of
town, she carried in a plastic bag a change of clothing consisting of gray sweatpants, a gray
t-shirt, a brown sweatshirt, and a windbreaker. The victim also had a pocketbook containing
a phone with no minutes. When the victim arrived at the cabin, Mr. Hunt was sitting on the
porch, and the defendant was assisting Mr. Sutton with repairs on the cabin. The defendant
had arrived at the cabin at some point during the afternoon. Mr. Hunt testified that the victim
arrived between 3:00 p.m. and 6:00 p.m., and the victim testified she arrived around 7:30
p.m. The victim had never met Mr. Hunt or Mr. Sutton, and Mr. Sutton had never met the
defendant prior to that day.

While the victim, Mr. Hunt, Mr. Sutton, and the defendant were at the cabin, the
victim, Mr. Hunt, and Mr. Sutton drank some alcohol. All the witnesses agreed that the
defendant did not drink at all. The victim testified that she drank part of one beer and one
and a half mixed drinks. The victim and Mr. Hunt testified that he mixed her one drink, and
she mixed drinks for him and herself from then on. The victim testified she was drinking
from a red Solo cup and that she never finished her first drink, although she “topped [hers]
off” when fixing a drink for Mr. Hunt. Mr. Hunt testified they were drinking whiskey and
soda, and the victim had a few drinks at the cabin. Mr. Hunt also testified that the victim had
not drunk “a whole lot” at the cabin. Mr. Sutton testified that he saw the victim drink some
alcohol and did not see her take any drugs. He believed she was drinking beer, and he
testified they had two or three beers apiece. The victim had no visible injuries at this time.

Mr. Hunt suggested they go to a sports bar, and the defendant drove the four into
town. When the victim got in the car, she put the plastic bag with her change of clothes into
the trunk. The victim estimated it was between 8:30 and 9:30 p.m., Mr. Sutton estimated it
was 6:00 or 7:00 p.m., and all three of the State’s witnesses testified it was beginning to get
dark. Mr. Sutton decided not to go to the sports bar and went home to his apartment above
Mr. Hunt’s store. The defendant, the victim, and Mr. Hunt went to the sports bar and sat
outside. Mr. Hunt bought the victim one beer; the defendant did not drink any alcohol. Both
the victim and Mr. Hunt saw other acquaintances, and the victim left her beer unattended
while she greeted friends. The victim had felt fine earlier in the evening, but she began to

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feel drowsy and disoriented at the bar. On the way out of the sports bar, the victim tripped
on some lighting equipment. On cross-examination, Mr. Hunt explained a prior statement
in which he had told detectives that he did not see her fall by noting that they had asked if
she was “falling down drunk,” and he had seen her trip but not fall spontaneously. The
victim had not eaten all day, and the three planned to go to a restaurant. The victim was cold,
put on her brown sweatshirt, and lay down in the back of the car.

Mr. Hunt testified that the defendant drove them to a restaurant, which was closing
as they arrived. When he turned to ask the victim where to go, she was asleep. They went
to a different restaurant, and the victim did not respond or wake when he asked her if she
wanted to come inside. Mr. Hunt and the defendant left the victim in the car while they ate,
and they then went back to Mr. Hunt’s rural property. Mr. Hunt fell asleep during the twenty
to thirty minute ride back, and the defendant woke him when they arrived at the cabin around
midnight or early the next morning. Mr. Hunt had forgotten about the victim, and he left the
car and went to bed.

The victim woke to find herself naked on the floor of the camper with the defendant
raping her. The victim testified that she was on a pink quilt, and as she started struggling,
she became aware that her arms and legs were tied with rope. The victim was face-down and
could see a roll of duct tape on the floor in front of her; she also saw duct tape on her wrists.
The victim had three ropes around her neck. Some of the ropes she was tied with were
yellow and black, and some were white. When she tried to move, the defendant pulled on
a piece of the rope around her neck, cutting off her air supply. The victim demanded that the
defendant get off of her, and he told her to shut up and lie still. When she would move or tell
him to get off of her, he would pull on the ropes and cover her nose and mouth with his hand,
choking and suffocating her. At one point when he tried to cover her airway, she bit him.
The victim was afraid she would lose consciousness and that he would kill her and she would
“never see the light of day.” The victim also saw an elastic cord around her wrist. She asked
if he had cut it off her windbreaker, and he told her it was from a tent.

The victim asked the defendant to let her up to use the bathroom. He refused, and she
ultimately defecated on the blanket. Eventually, the defendant let her up. He held her by the
rope on her neck and led her to the bathroom. The defendant’s camper had no running water.
The victim went into the bathroom and asked the defendant for something to clean herself
with. He refused to give her anything other than a dirty towel. She asked for something to
wet the towel, and he handed her a coffee pot with some water in it. She poured the water
on the towel, and she set the coffee pot on the bathroom counter. The defendant was
standing next to her holding the rope; because of the small size of the camper, he was able
to reach into the kitchen while she was in the bathroom. The bedroom was also next to the
bathroom. When the defendant looked away for a moment, the victim grabbed the coffee pot

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and hit him on the head, shattering the glass. The bleeding defendant fell into the bedroom;
however, he held onto the rope around the victim’s neck, bringing her down on top of him.
The defendant was bleeding from the head. The victim began to jab the defendant in the
stomach with the handle of the coffee pot. After a struggle during which the defendant was
pulling on the rope and the victim was jabbing him in the stomach with the broken handle
of the coffee pot, the defendant lay still for a moment. The victim tried to get up. The
defendant then grabbed her throat with his left hand and began to choke her. The victim was
afraid she would not be able “to walk away from there alive.” The victim promised him that
if he let her go, there would be no repercussions for the attack. The defendant let her go.

The victim went back to the living room, where she found several knives and a pair
of scissors on the floor. She used a knife to cut the ropes from her arms and legs, and she
removed the ropes around her neck by pulling them over her head. She realized that her bra
was half-on, hanging from her arm, and bloody. She tried to dress in the clothing she had
been wearing but realized these clothes had been cut off of her and could not be worn. The
plastic bag with her change of clothes had been moved into the camper, and the victim put
on her gray sweatpants and a gray t-shirt. The victim saw one of her earrings lying in a
puddle of blood and put it in her ear. At that time, the defendant was using a t-shirt to wipe
blood off his face. The victim ran from the camper carrying her cut-up clothing and her
pocketbook.

The victim ran to Mr. Hunt’s cabin, which he testified was about half a mile from the
camper. She slid down a steep embankment and knocked on his door. Eventually, she was
able to wake him and took shelter in the cabin. Mr. Hunt testified that the victim was shaken
up and hysterical. She had blood on her bra and in her hair, and she was wearing different
clothes from the night before. Her wrists and ankles had marks around them, and she had
rope marks around her neck. The defendant then drove up Mr. Hunt’s drive. Mr. Hunt
testified that the victim started shaking when she saw the defendant coming. Mr. Hunt
stepped out and told the defendant that the police were on their way and that he should leave.
At the victim’s behest, however, Mr. Hunt had not actually called the police. The defendant
left.

Mr. Hunt and the victim drove down to the lake where he habitually went swimming
in the mornings. The victim washed the blood out of her hair in the lake. A man Mr. Hunt
had hired to drive him around arrived, and the three went to the camper. The victim testified
there was still blood on the walls and broken glass on the floor. The handle of the coffee pot
and some broken glass were tied in a plastic bag, which was outside the camper. There was
a University of Tennessee t-shirt with blood on it in the tub. However, the knives, scissors,
and duct tape had been moved. There were also now two folding camp chairs set up in the
living room that had not been there during the attack, and the pink blanket was folded on the

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couch. The victim testified that outside the camper, she saw some rope that did not match
the ropes she was tied up with but also saw black rope with yellow in it and some white rope,
which did look like the ropes she had been tied up with. Mr. Hunt confirmed that there was
blood on the walls of the bedroom and on the bed. He saw a broken coffee pot but did not
recall blood or glass in the hall. He did not see rope, scissors, knives, or duct tape. Mr. Hunt
testified that the victim showed him some black electrical wiring that she said was used to
tie her up. They left the wire there. Mr. Hunt took some of the defendant’s property because
he felt the defendant owed him money for staying in the camper. Mr. Hunt then changed the
lock at the gate of the drive leading to the camper.

Mr. Hunt’s driver took them to Wal-Mart, where Mr. Hunt gave the victim money to
buy clothing and to buy minutes for her phone. Mr. Hunt then bought her lunch and took
her to his apartment above the store around 12:00 or 1:00 p.m. The victim testified that she
wanted to be somewhere the defendant could not find her. She did not feel safe going home
because the defendant knew where she lived and where her parents were. The victim
testified that she had asked Mr. Hunt not to call the police because she was “scared to death”
of the defendant, because he knew where she might be found, and because she herself had
a warrant for violation of probation and was “in no shape or condition to go to jail at that
time.”

The victim showered and changed clothing at the apartment. Mr. Hunt testified that
the victim’s wrists still had marks and that her eyes were very bloodshot, even worse than
right after the assault. Mr. Sutton testified that the victim was badly beaten, bruised, and
shaken and that the whites of her eyes were completely red. He thought she had on a
sweatshirt and the same jeans she had worn the previous night, but he then testified he did
not recall if she wore jeans when he first met her. Mr. White met the victim for the first time
when Mr. Hunt brought her to the apartment. The blood vessels in her eyes were burst, and
she had handprints on her neck and scrapes and bruises on her arms and legs. Mr. White
gave the victim an over-the-counter pain reliever.

The victim called her mother that evening and told her mother what had happened but
was afraid to reveal her location. She then spoke with her brother and agreed to meet him
at a theater close by. Her brother photographed her injuries in his car at the theater. The next
day, August 24, 2010, Detective Pascu called her, and her family took her to meet the
detective. The detective took her to the hospital, where physical evidence was collected.
The victim gave a statement to the detective and then went to her brother’s home after
learning the defendant was in custody. She gave a second statement to police.

The victim testified that she had prescriptions for oxycodone, tramadol, zanaflex, and
valium. She last took prescription medication on the Thursday before leaving town. She did

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not knowingly take any medication between the time she left town on Thursday and the rape
on Monday morning. She took one prescription valium and some pain reliever while staying
at Mr. Hunt’s apartment on Monday. She did not knowingly take meth, darvocet, klonopin,
or xanax.

The victim testified that she had been in a car accident on August 10, 2010,
approximately two weeks before the assault. She had sustained a ruptured disk in her neck
during the accident. She testified that the other injuries she sustained were the result of the
defendant’s actions. The victim testified that she lost her voice for four days and had rope
marks around her neck, arms, and legs. She had bruises and abrasions on her chin, face,
shoulder, arms, and legs. The victim stated that she broke off one tooth biting the defendant
and had to have another pulled as well. She also sustained injuries to her eyes, including the
loss of peripheral vision for two and a half weeks and extreme pain. She had to use steroids
and antibiotics in her eyes daily.

The victim identified her cut up shirts, the sweatpants she put on after the attack,
which were stained with feces, the stained pink blanket where the rape occurred, her
windbreaker, which had been cut along the bottom, two shirts from the defendant’s camper,
and photographs documenting her injuries. She also identified the ropes recovered from the
camper, which she stated were consistent with the ropes used to tie her arms and legs. She
identified where the ropes had been cut with a knife to remove them and stated that these
were not the ropes around her neck, which she had slid off and had not cut.

Susie Cusick, the nurse who treated the victim on August 24, 2010, testified that the
victim had blood in her eyes, abrasions to her neck, pain in her neck, hips, legs, and forearms,
and bruising to her legs, arms, and chin. She had abrasions consistent with rope around her
neck. The victim was scared and upset. Nurse Cusick administered a sexual assault kit and
drew blood, which she gave to law enforcement. Dr. Jonathan Wireman also noted abrasions
and bruising in various places on the victim’s body, pain in the victim’s neck, and
subconjunctival hemorrhages in her eyes. He stated that the eye injury could have been
caused by strangulation or a direct blow to the face. He agreed that his report noted she had
no dental injury. He testified that he noted no injuries during a pelvic exam and elaborated
that a rape victim would not necessarily have such injuries.

Detective Matt Price collected evidence from the defendant’s camper on August 24,
2010. Detective Price collected into evidence a pink blanket from the bed, a roll of duct tape
from the closet, another roll of duct tape, a bloody t-shirt from the couch, a University of
Tennessee t-shirt from the bathtub, ropes and a nylon strap, a rag from the bathroom, and
broken glass along with a coffee pot handle. Detective Price testified that he did not see any
knives but was not looking for them. Detective Price saw blood on the bedroom wall but did

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not recall seeing blood in front of the bathroom and testified he would have photographed
any blood he found. Detective Price acknowledged having moved several items of evidence
while at the camper, including a blue cloth or shirt on the couch, and a chair. Detective Price
agreed that police “poured some things out on the couch.” He acknowledged a cushion from
the couch was also moved.

Detective George Ann Pratt2 testified that when she spoke with the victim on the
phone on August 24, 2010, the victim sounded shaky, nervous, and afraid. After meeting the
victim, Detective Pratt photographed the victim’s injuries, including a bruise on her jaw, rope
burn marks around her neck, injuries to her arms, hip, ankles, and knees, and the injuries to
her eyes. Detective Pratt testified that the photographs did not capture the extent of the
injuries. She also photographed the victim on subsequent days to show the duration of the
injuries. Detective Pratt accompanied the victim to the hospital where a sexual assault kit,
a blood sample, and the victim’s clothing were collected. Detective Pratt took buccal swabs
from both the victim and the defendant, and she sent the evidence to the Tennessee Bureau
of Investigation “TBI” laboratories. Detective Pratt testified that the defendant had injuries
to his head and a bite mark on his arm, and she photographed these. Detective Pratt testified
on cross-examination that Detective Price brought the pieces of the broken coffee pot to her
and she did not recall the defendant or his daughter bringing them. She testified about a
second stained rag that was collected into evidence. She also acknowledged that she never
visited the camper during her investigation, and waited until the week before trial to visit the
site.

Two agents with the TBI testified regarding the substances found in the victim’s
blood. Agent Adam Gray testified that the victim’s blood contained tramadol, which is a
synthetic opioid, and propoxyphene, commonly known as darvocet. He testified that the
victim’s blood also contained a metabolite of propoxyphene. He explained that a metabolite
was a substance produced by the body after ingestion of a substance and that its presence was
an indicator that the propoxyphene had been ingested and there had then been a passage of
time. Agent Gray testified that “mickey” and “roofie” were terms for drugs used in drug-
facilitated assault and that both the drugs he found in the victim’s blood could be associated
with drug-facilitated assault. He testified that the drugs together would have a synergistic
effect, compounding the effects of the drugs, which included drowsiness. He testified that
combining drugs could mean that rather than having twice the normal effect, the drugs would
be seven times as powerful. The victim’s blood also contained less than .05 micrograms per
milliliter of methamphetamine. The blood was sent to a different TBI laboratory for further
testing. Agent April Bramlage testified that the victim’s blood also contained xanax, a

2
Statements of counsel and inferences from the testimony at trial indicate that George
Ann Pratt was known as George Ann Pascu at the time of the crime.

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metabolite of valium and a metabolite of klonopin, all of which were nervous system
depressants. Agent Bramlage also testified these drugs taken together, as well as these drugs
taken with the drugs found by Agent Gray, would have a compounded effect and that alcohol
would add a depressant effect. She testified on cross-examination that all the drugs were
present at sub-therapeutic levels.

Agent Lisa Wessner, a serologist at the TBI testified that she identified the
defendant’s DNA on the bloody broken glass and the defendant’s sperm on the pink blanket.
She tested a nylon rope for the presence of DNA but was not able to obtain a profile; the
white rope had been placed into plastic while wet and was moldy, so she did not test it
because she would expect any DNA to have broken down. She testified that the pink blanket
with the defendant’s sperm also had a stain that looked like fecal matter, but the TBI does
not test for fecal matter. Agent Wessner found no sperm in the sexual assault kit taken from
the victim but explained that the presence of sperm would be affected by cleaning, urination,
defecation, showering, and the passage of time. The victim’s bra, which had a blood stain,
contained DNA that was consistent with the victim’s profile. Agent Wessner explained that
she would expect to find the wearer’s DNA on intimate clothing and could not determine if
the DNA she obtained came from the clothing or the blood on the clothing. No DNA but the
donor’s was found in fingernail clippings taken from both the victim and the defendant.

Dr. Mark Bowers testified regarding the victim’s eye injuries. Dr. Bowers described
the victim’s severe subconjunctivial hemorrhages and iritis, which is an internal
inflammation that is very painful and causes light sensitivity and blurred vision. He testified
the pain was typically between a five and eight on a scale of one to ten. The victim was
suffering from a loss of peripheral vision, and she could have suffered vision loss without
treatment. He testified that her injuries were consistent with choking or strangulation or
tremendous blunt force injury. The victim was given medication, including a steroid, and
returned for a follow-up visit on September 2, 2010, when she was still suffering from
blurred vision and loss of peripheral vision. A CT scan taken that day was normal.

On the first day of trial, the trial court spoke to the jury about the potential duration
of the proof:

First of all I think there is a possibility that this case might go
into Thursday. Does anybody have a problem on Thursday
they’re aware of if we have to go into Thursday? I’m just
thinking that’s a possibility. I don’t want to because I’ve got a
full docket, some other things, but I also don’t want to wear you
out as this case proceeds. You can only take so much
information in a day so anyway, but there’s a possibility that it

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 might go into Thursday so just be aware of that and let your
family know that that’s a possibility.

The trial continued into the Thursday mentioned by the court.

At the close of the State’s proof, the defendant moved for judgment of acquittal. The
trial court, concluding that the State had not established serious bodily injury, declined to
charge especially aggravated kidnapping in Count 5, reducing the charge to aggravated
kidnapping. The defense did not put on any evidence.

During closing argument, the State argued that it had established especially aggravated
kidnapping and aggravated kidnapping based on the victim’s testimony that the defendant
prevented her from going to the bathroom and only eventually allowed her to go to the
bathroom by leading her down the hall with a rope tied around her neck. The State noted she
was confined from the time she was led down the hall until she fell into the bedroom and the
defendant eventually released the rope. Regarding the rape charges, the State noted that it
did not have to prove ejaculation but penetration and that the victim had testified to this
element of the crime. The prosecutor, however, later stated, “Now[,] we know he penetrated
her because there’s semen on that blanket and there is no other explanation for it. You’ve
heard no other proof for how it got there than what she said.” The prosecution, in its final
argument, noted that the victim had testified to the elements of the crimes and concluded,
“[I]f you believe [the victim] beyond a reasonable doubt[,] that’s all the case the State has
to establish[,] if you believe her.” The prosecution summarized certain aspects of her
testimony, stating, “And you think about the details that she says. They all ring of
credibility.” There were no objections to the State’s closing argument.

The trial court noted that it had added new instructions regarding whether the
confinement that constituted the kidnapping was incidental to either the attempted first
degree murder or the aggravated rape. The defense did not object to the instructions. The
trial court instructed the jury:

To find the defendant guilty of this offense [y]ou must
also find beyond a reasonable doubt that the removal or
confinement was to a greater degree than that necessary to
commit the offense of attempted first degree murder as charged
in Count One or aggravated rape as charged in Counts Two and
Three.
....

Unless you find beyond a reasonable doubt that the

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 alleged victim’s removal or confinement exceeded that which
was necessary to accomplish the alleged attempted first degree
murder in Count One or aggravated rape in either Count Two or
Three and was not essentially incidental to it you must find the
defendant not guilty of especially aggravated kidnapping.

The jury convicted the defendant of attempted second degree murder, two counts of
aggravated rape, especially aggravated kidnapping, and aggravated kidnapping. The jury
imposed fines for all convictions, and the trial court suspended all but the $25,000 fine for
the attempted second degree murder conviction. The court sentenced the defendant to twelve
years for attempted second degree murder, twenty-five years for aggravated rape, and twenty-
five years for especially aggravated kidnapping. The trial court merged the rape convictions,
merged the kidnapping convictions, and ordered the attempted murder conviction to be
served concurrently with the rape conviction and the especially aggravated kidnapping
conviction to be served consecutively to the rape conviction for an effective sentence of fifty
years. The defendant appeals, challenging the sufficiency of the evidence, including the jury
instructions regarding the kidnapping offenses; an alleged variance in the indictment; the trial
court’s denial of the defendant’s motion for a change of venue; law enforcement’s handling
of physical evidence; the trial court’s statements regarding the duration of the trial; the
prosecutor’s closing statements; and alleging cumulative error.

ANALYSIS

I. Sufficiency of the Evidence

Tennessee Rule of Appellate Procedure 13(e) requires a finding of guilt to be set aside
if the evidence is insufficient to support the finding of guilt beyond a reasonable doubt. In
evaluating the sufficiency of the evidence, the court must determine whether, considering the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v. Reid, 91
S.W.3d 247, 276 (Tenn. 2002). This court will not reweigh or reevaluate the evidence, nor
may it substitute its inferences drawn from circumstantial evidence for those of the trier of
fact. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). “Questions concerning the
credibility of witnesses, the weight and value to be given the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). The State is entitled to the strongest legitimate view of the evidence
and to all reasonable and legitimate inferences that can be drawn from it. State v. Hall, 8
S.W.3d 593, 599 (Tenn. 1999). A guilty verdict replaces the presumption of innocence with
one of guilt, and on appeal, the defendant bears the burden of demonstrating that the
evidence is insufficient to support the conviction. State v. Cole, 155 S.W.3d 885, 897 (Tenn.

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2005). “Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except that of guilt.”
State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

A. Aggravated Rape and Attempted Second Degree Murder Convictions

The defendant was convicted of attempted second degree murder. Criminal attempt
is committed when the offender, acting with the kind of culpability otherwise required for
the offense,

(1) Intentionally engages in action or causes a result that would
constitute an offense, if the circumstances surrounding the
conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without
further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a
result that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and
the conduct constitutes a substantial step toward the commission
of the offense.

T.C.A. § 39-12-101(a) (2010). Second degree murder is “[a] knowing killing of another.”
T.C.A. § 39-13-210(a)(1). “A person acts knowingly with respect to a result of the person’s
conduct when the person is aware that the conduct is reasonably certain to cause the result.”
T.C.A. § 39-11-302(b).

The defendant was also convicted of two counts of aggravated rape, one of which
required the jury to find that the defendant engaged in the unlawful sexual penetration of the
victim using force or coercion and that the defendant was armed with a weapon or an article
used or fashioned to lead the victim reasonably to believe it was a weapon, and one of which
required the jury to find that the defendant engaged in the unlawful sexual penetration of the
victim accompanied by, as charged here, the finding that the defendant caused the victim
bodily injury. T.C.A. § 39-13-502(a)(1), (a)(2). “‘Bodily injury’ includes a cut, abrasion,
bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the
function of a bodily member, organ, or mental faculty.” T.C.A. § 39-11-106(2).

The defendant challenges the sufficiency of the evidence, asserting that there was no

-12-
evidence of the crimes other than the victim’s testimony.3 Not only was there corroboration
of the crimes in the form of physical evidence recovered from the camper, documented
injuries to the victim, and testimony from Mr. Hunt and his two renters, but in any case, the
testimony of a victim is sufficient to sustain a conviction without corroboration. State v.
Smith, 42 S.W.3d 101, 106 (Tenn. Crim. App. 2000). The defendant also objects to the fact
that the victim, citing the frayed edges of the ropes introduced into evidence, testified that
they were not the ones used to choke her, which she had not cut but had slipped over her
head. Contrary to the defendant’s apparent claim, the State was not required to introduce the
ropes used in the crime in order to obtain a conviction for attempted second degree murder.
Nor is there merit in the defendant’s claim that the State was required to introduce expert
testimony that the marks around the victim’s neck were caused by a rope. The proof at trial
was that the defendant, having attempted to procure sedative drugs, was present when the
victim left her drink unattended at a bar. The victim, whose blood contained drugs she
denied voluntarily taking, then lost consciousness. The victim was last seen in the back seat
of the defendant’s vehicle. The victim testified that when she woke, the defendant cut off
her air supply with a rope as he was raping her. She feared she would lose consciousness and
die. The victim’s neck showed rope marks, and the State introduced expert testimony that
the victim’s eye injuries were consistent with strangulation. A rational trier of fact could
have found that, by drugging and choking the victim, the defendant acted with the intent to
commit a knowing killing, and that by choking the victim with the rope to the extent that she
received eye injuries, lost her voice, and had rope marks on her neck, he took a substantial
step towards completing the crime. The State introduced evidence supporting each element
of the crime, and the jury found each element beyond a reasonable doubt.

The defendant asserts that the aggravated rape convictions are not supported because
the State did not prove penetration or, for Count 3, that the bodily injury accompanied the
crime. These claims are without merit, as the victim’s testimony that the defendant
penetrated her is sufficient to establish penetration. State v. Collier, 411 S.W.3d 886, 900
(Tenn. 2013); see Smith, 42 S.W.3d at 106. Furthermore, the victim sustained numerous
bodily injuries, including abrasions, bruising, and marks from the ropes, during the rape. The
defendant’s contention that some of the scrapes were sustained in her attempt to reach the
safety of the cabin or as a result of the kidnapping is of no avail because even if there had not
been other injuries which were sustained during the consummation of the rape (such as the
abrasions on her face, bruising on her hips, and marks on her arms, legs, and throat), the
statute encompasses “acts or circumstances which occur before, during and after the
consummation of the unlawful sexual penetration.” State v. Locke, 771 S.W.2d 132, 136

3
The defendant’s challenges regarding an alleged amendment to or variance from the
indictment and regarding the jury instructions for the kidnapping offenses are addressed
elsewhere in this opinion.

-13-
(Tenn. Crim. App. 1989) (upholding jury’s conclusion that injuries suffered when the victim
jumped from a window while the defendant attempted to reenter the house after the rape
were injuries that accompanied the crime); State v. Benjamin F. Dishman, No.
03C01-9610-CR-00361, 1998 WL 191447, at *6 (Tenn. Crim. App. Apr. 23, 1998).

We conclude that, taking the proof in the light most favorable to the State, a rational
trier of fact could have found that the State had proven the elements of the crimes beyond a
reasonable doubt.

B. Kidnapping Offenses

The defendant next challenges his kidnapping convictions based on the jury
instructions. The defendant was convicted in Count 4 of especially aggravated kidnapping,
which, as charged in the indictment, is the knowing removal or confinement of another so
as to interfere substantially with the other’s liberty accomplished with a deadly weapon.
T.C.A. §§ 39-13-302(a), -305(a)(1). He was convicted in Count 5 of aggravated kidnapping,
the knowing removal or confinement of another so as to interfere substantially with the
other’s liberty where the victim suffers bodily injury. T.C.A. §§ 39-13-302(a), -304(a)(4).

Tennessee courts have long recognized that a conviction for kidnapping that
accompanies another felony may not stand if the kidnapping is essentially incidental to the
other felony. See State v. Anthony, 817 S.W.2d 299, 306 (Tenn. 1991). In State v. White, the
Tennessee Supreme Court concluded that the legislature intended “to punish as kidnapping
only those instances in which the removal or confinement has criminal significance above
and beyond that necessary to consummate some underlying offense, such as robbery or rape.”
State v. White, 362 S.W.3d 559, 577 (Tenn. 2012). Accordingly, the court held that whether
the evidence is sufficient to support every element of kidnapping is a jury question. Id. The
White court replaced the prior due process test articulated in State v. Anthony with a
sufficiency analysis. Id. at 578. The White court then held that “trial courts must ensure that
juries return kidnapping convictions only in those instances in which the victim’s removal
or confinement exceeds that which is necessary to accomplish the accompanying felony.” Id.
Put another way, “trial courts should specifically require a determination of whether the
removal or confinement is, in essence, incidental to the accompanying felony or, in the
alternative, is significant enough, standing alone, to support a conviction.” Id. The White
court gave model jury instructions for courts to use when instructing on kidnapping offenses,
which were essentially adopted by the Tennessee Pattern Jury Instruction Committee:

To find the defendant guilty of [especially] [aggravated]
[kidnapping] [false imprisonment], you must also find beyond
a reasonable doubt that the removal or confinement was to a

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 greater degree than that necessary to commit the offense(s) of
_________ as charged [or included] in count(s) _________. In
making this determination, you may consider all the relevant
facts and circumstances of the case, including, but not limited to,
the following factors:

(a) the nature and duration of the alleged victim’s removal or
confinement by the defendant;

(b) whether the removal or confinement occurred during the
commission of the separate offense;

(c) whether the interference with the alleged victim’s liberty was
inherent in the nature of the separate offense;

(d) whether the removal or confinement prevented the alleged
victim from summoning assistance, although the defendant need
not have succeeded in preventing the alleged victim from doing
so;

(e) whether the removal or confinement reduced the defendant’s
risk of detection, although the defendant need not have
succeeded in this objective; and

(f) whether the removal or confinement created a significant
danger or increased the alleged victim’s risk of harm
independent of that posed by the separate offense.

Unless you find beyond a reasonable doubt that the alleged
victim’s removal or confinement exceeded that which was
necessary to accomplish the alleged _________ and was not
essentially incidental to it, you must find the defendant not
guilty of [especially] [aggravated] [kidnapping] [false
imprisonment].

State v. Cecil, 409 S.W.3d 599, 607 (Tenn. 2013) (quoting 7 Tenn. Prac. Pattern Jury Instr.
T.P.I.-Crim. 8.01-.03, 8.05).

In State v. Cecil, the Tennessee Supreme Court elaborated that, when the jury

-15-
instructions do not follow the strictures of White, the failure to instruct is subject to harmless
error analysis. Cecil, 409 S.W.3d at 610. The proper inquiry is whether the error is harmless
beyond a reasonable doubt – that is, “whether it appears beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.” Id. (quoting State v.
Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)). The touchstone of this analysis is
determining whether a rational trier of fact could interpret the proof at trial in different ways.
Id. at 610.

For the kidnapping offenses, the trial court, following the pattern instructions,
instructed the jury regarding the requirement that the kidnapping exceed the confinement
necessary to accomplish an accompanying felony:

Count Four - Especially Aggravated Kidnapping

....

To find the defendant guilty of this offense [y]ou must
also find beyond a reasonable doubt that the removal or
confinement was to a greater degree than that necessary to
commit the offense of attempted first degree murder as charged
in Count One or aggravated rape as charged in Counts Two and
Three.

In making this determination you may consider all the
relevant facts and circumstances of the case including but not
limited to the following factors:
(a) the nature and duration of the alleged victim’s
removal or confinement by the defendant[;]
(b) whether the removal or confinement occurred during
the commission of the separate offense;
(c) whether the interference with the alleged victim’s
liberty was inherent in the nature of the separate offense;
(d) whether the removal or confinement prevented the
alleged victim from summoning assistance although the
defendant need not have succeeded in preventing the alleged
victim from doing so[;]
(e) whether the removal or confinement reduced the
defendant’s risk of detection although the defendant need not
have succeeded in this objective; and
(f) whether the removal or confinement created a

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 significant danger or increased the alleged victim’s risk of harm
independent of that posed by the separate offense.

Unless you find beyond a reasonable doubt that the
alleged victim’s removal or confinement exceeded that which
was necessary to accomplish the alleged attempted first degree
murder in Count One or aggravated rape in either Count Two or
Count Three and was not essentially incidental to it you must
find the defendant not guilty of especially aggravated
kidnapping . . . .

The trial court used identical language in Count 5 regarding whether the aggravated
kidnapping was essentially incidental to other crimes. In his brief, the defendant does not
take issue with the trial court’s use of the disjunctive “or” in the instructions, but he contends
that the instructions were erroneous because they failed to clarify which accompanying
felony the removal or confinement of the victim was greater than necessary to achieve.
Essentially, the defendant argues that the trial court should have instructed the jury that it
must specify whether the removal or confinement of the victim was greater than necessary
to accomplish either attempted first degree murder or aggravated rape. Although we agree
that the trial court provided an erroneous instruction, we do so for a different reason than
argued by the defendant.

We conclude that the jury instruction should have clarified that the confinement had
to exceed that which was incidental to both the rape and the attempted homicide.4 The
purpose behind the instructions required in White is to “‘prevent the injustice which would
occur if a defendant could be convicted of kidnapping where the only restraint utilized was
that necessary to complete the act of rape or robbery.’” White, 362 S.W.3d at 570 (quoting
State v. Dixon, 957 S.W.2d 532, 534-35 (Tenn. 1997). The White court noted that the statute

4
The following instruction would be sufficient to address any White issues: To find the
defendant guilty of this offense, you must also find beyond a reasonable doubt that the removal
or confinement was to a greater degree than that necessary to commit [the first offense] and that
the removal or confinement was to a greater degree than that necessary to commit [the second
offense].
....
Unless you find beyond a reasonable doubt that the alleged victim’s removal or confinement
exceeded that which was necessary to accomplish the alleged [first offense] and exceeded that
necessary to accomplish the alleged [second offense] and was not essentially incidental to [the
first offense or the second offense], you must find the defendant not guilty of [especially]
[aggravated] [kidnapping] [false imprisonment]. See White, 362 S.W.3d at 580.

-17-
evinces “a legislative intent to punish as kidnapping only those instances in which the
removal or confinement has criminal significance above and beyond that necessary to
consummate some underlying offense.” White, 362 S.W.3d at 577. If the kidnapping is
essentially incidental to any accompanying offense of which the defendant is convicted, a
separate conviction for the kidnapping cannot stand. In the case at bar, although the
prosecutor stated in closing argument that the confinement must be greater than “necessary
than that needed to commit attempted first-degree murder and aggravated rape[,]” the trial
court’s instructions included the word “or.” Thus, it is possible that the jury could have read
the instructions to say that it could convict the defendant if it found beyond a reasonable
doubt that the removal or confinement was to a greater degree than that necessary to commit
one of the charged offenses, even if the confinement were essentially incidental to another
offense.

Because we conclude that the jury instructions were in error, we undertake harmless
error analysis. We conclude that the error was harmless because a rational trier of fact could
not have interpreted the proof at trial in different ways. See Cecil, 409 S.W.3d at 610. In
State v. Hulse, the defendant pulled the victim into his trailer where he raped and beat her.
State v. Jonathan Kyle Hulse, No. E2011 -01292-CCA-R3-CD, 2013 WL 1136528, at *5
(Tenn. Crim. App. Mar. 19, 2013). The victim was able to escape after the rape, but the
defendant followed her with a boxcutter to a nearby trailer, grabbed her ankles, and
attempted to drag her away from the place where she was seeking help. Id. at *14. This
court, accordingly, concluded that “[t]he only reasonable conclusion to be drawn from the
evidence is that the Defendant’s actions were well beyond that necessary to consummate the
rape.” Id. In State v. Keller, the defendant broke into a home to reclaim an alleged drug debt
through robbery, and he held the robbery victim’s family captive, threatening them with guns.
State v. Curtis Keller, No. W2012-00825-CCA-R3-CD, 2013 WL 3329032, at *1-2 (Tenn.
Crim. App. June 27, 2013), perm. app. denied (Tenn. Dec. 13, 2013). This court found that
the failure to give proper jury instructions was harmless beyond a reasonable doubt because
the confinement lasted far longer than that necessary to achieve the aggravated assaults,
which were accomplished when the family was threatened with the use of the firearms. Id.
at *4; see also State v. Larry Jereller Alston, No. E2012-00431-CCA-R3-CD, 2014 WL
585859, at *3 (Tenn. Crim. App. Feb. 13, 2014) (“The common factor in these two cases was
that the felony that accompanied the kidnapping charge and that gave rise to the due process
concern was complete before the removal or confinement that served as the basis for the
kidnapping charge.”), perm. app. granted (Tenn. Jun. 20, 2014) ; compare State v. Bobby
A. Raymer, No. M2011-00995-CCA-R3-CD, 2012 WL 4841544, at *7 (Tenn. Crim. App.
Oct. 10, 2012) (concluding that the proof was susceptible to different interpretations when
the defendants broke into the victim’s home and tied the victim up after he resisted, robbing
the victim after he had been restrained). Cecil cited the harmless error analysis in Hulse and
Keller with approval. Cecil, 409 S.W.3d at 610.

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 In the case at bar, the victim’s confinement was not contemporaneous with the
commission of the other charged offenses. The defendant raped the victim while restraining
her with the cords, and he attempted to kill the victim during the rape by choking her with
the cords whenever she attempted to resist him. He then continued to confine the victim,
who was tied up, well after these criminal acts. The defendant used ropes finally to lead the
victim to the bathroom, and he continued to confine her by means of the ropes while she was
in the bathroom. When the victim hit him with the coffee pot and attempted to escape, she
was still tied up and he was still holding the rope looped around her neck, which he used to
pull her down on top of him as he fell. After a period of time, the victim felt the ropes
slacken and attempted to flee, and the defendant then tried to choke her with his hands. We
conclude that the proof is not susceptible to different interpretations. A rational trier of fact
could not have found that the defendant’s acts of tying up the victim and leading her by a
rope to the bathroom were essentially incidental to either the rape or the attempted second
degree murder. The requirement that the kidnapping have criminal significance beyond that
necessary to consummate the other offenses is “‘not meant to provide the rapist a free
kidnapping merely because he also committed rape.’” White, 362 S.W.3d at 570 (quoting
Dixon, 957 S.W.2d at 534). Accordingly, the defendant is entitled to no relief.

II. Indictment

The defendant challenges his attempted second degree murder conviction by asserting
that there was a variance or constructive amendment to the indictment. The indictment
charged that the defendant “did unlawfully, feloniously, knowingly, intentionally, and with
premeditation attempt to kill another, [the victim], by choking her with a nylon cord, which
conduct constituted a substantial step toward the commission of said offense.” During
closing argument, the prosecutor stated,

the evidence in this case shows what the defendant intended,
and what he attempted, the defendant attempted to kill [the
victim] in that living room as he is suffocating her, cutting off
her air. She cannot breathe with those ropes and with his hands
he intends to kill her and attempts to do so. Also in the bedroom
when he still has the rope around her neck and it’s squeezing her
and cutting off her air and then he takes his hand and squeezes
to the point that he leaves fingerprints. . . .

The defendant argues that, because the indictment specified a weapon used in the crime, and
because the prosecution referenced the defendant’s attempt to choke the victim without (as
well as with) a weapon, there was an amendment to the indictment in contravention of
Tennessee Rule of Criminal Procedure 7(b).

-19-
 A constructive amendment to an indictment occurs when the jury is permitted to
convict the defendant based on facts that modify an essential element of the crime, and it
requires automatic reversal. State v. Goodson, 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001).
A variance occurs when the evidence which is introduced at trial does not correspond to the
elements of the offense as they are charged in the indictment. State v. March, 293 S.W.3d
576, 588 (Tenn. Crim. App. 2008). The State is required to prove the crime which it charges
in the indictment, and to charge the crime which it proves. Goodson, 77 S.W.3d at 244. In
Tennessee, however, a defendant is not entitled to relief unless the variance between the
indictment and the proof is both material and prejudicial to the defendant. State v. Moss, 662
S.W.2d 590, 592 (Tenn. 1984). “[A] variance is not fatal if (1) the defendant is sufficiently
informed of the charges levied against him so that he can adequately prepare for trial and,
(2) the defendant is protected against a subsequent prosecution for the same offense based
on double jeopardy grounds.” State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993).

If a fact that was gratuitously alleged in the indictment is not proven at trial, the
surplusage raises an issue of variance. March, 293 S.W.3d at 588-89. “[H]owever, an
indictment is not defective because of the inclusion of surplusage if, after eliminating the
surplusage, the offense is still sufficiently charged.” Id. at 588. The defendant was charged
with the attempt to commit first degree premeditated murder. This crime does not require
the use of a weapon, and accordingly the reference to the nylon cord was surplusage. See
State v. Jones, 953 S.W.2d 695, 700 (Tenn. Crim. App. 1996) (concluding that jury’s verdict
should not have been set aside when the indictment charged rape by fellatio but victim
testified to a different sexual penetration).

Here, there was no variance because even though the indictment contained surplusage,
the State introduced evidence that a nylon cord was used in the crime. Neither was there a
constructive amendment modifying an essential element of the crime. The jury was
instructed regarding criminal attempt and regarding the elements of first degree murder, as
well as the elements of the offense of which he was convicted, attempted second degree
murder. The jury found that all the elements of the crime had been met. The defendant was
informed of the charges sufficiently to allow him to prepare for trial, and the indictment
provides a basis to protect the defendant against subsequent prosecution for the same crime.
He is therefore not entitled to relief.5

5
The defendant does not argue that the State was required to elect between the choking
with the ropes in the living room and the choking with his hands in the bedroom in order to
assure juror unanimity on the attempted homicide charge. See State v. Johnson, 53 S.W.3d 628,
630-31 (Tenn. 2001). “Questions regarding jury unanimity generally arise in cases where the
prosecution presents evidence to the jury that tends to show more than one criminal offense, but

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 III. Venue

The defendant also challenges the trial court’s denial of a motion for a change of
venue. The defendant urges that this denial was plain error. The State counters that this
court must presume that the trial court correctly denied the motion in the absence of a
transcript of the hearing or of the voir dire. The defendant’s designation of the record
requested the entire transcript of the records and proceedings of his jury trial. However, the
defendant failed to ensure that the record contained a complete transcript, as the record
contains the defendant’s motion for a change of venue but no order, transcript of a hearing,
or other reference to the issue prior to the motions for a new trial. The appealing party bears
the burden of preparing a proper record for the consideration of the appellate court. See
State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). This includes preparing “a transcript
of such part of the evidence or proceedings as is necessary to convey a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of appeal.”
Tenn. R. App. P. 24(b). The record before us simply contains no basis to evaluate the
defendant’s claim that the denial of his motion was error, and accordingly, we presume that
the rulings of the trial court were correct. See State v. Richardson, 875 S.W.2d 671, 674
(Tenn. Crim. App. 1993).

IV. Contamination of Evidence

The defendant next objects to the fact that items at the crime scene were moved
around by the victim and Mr. Hunt and by law enforcement. The defendant includes no legal
argument and not a single citation to legal authority. The evidence at trial was that the
defendant had rearranged the contents of the trailer prior to the visit by the victim and Mr.
Hunt and that the defendant had removed some items. The victim and Mr. Hunt then moved
items around and removed some of the camper’s contents. Finally, law enforcement testified
that some of the items in the photographs were not in their original locations. It is unclear
from the defendant’s brief, however, if he is claiming that there was a failure of
authentication, that there was a problem with the chain of custody, or that evidence was lost
or destroyed. See, e.g., State v. Cannon, 254 S.W.3d 287, 298 (Tenn. 2008) (concluding
chain of custody was not established when pantyhose were not identified as belonging to the
victim); State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999) (analyzing destruction of
evidence which was alleged to have been exculpatory). Although the defendant asserts that
the evidence was “contaminated,” he does not explain how the evidence allegedly changed,
nor does he allege exculpatory evidence was lost or destroyed. Accordingly, this issue is

the underlying indictment is not specific as to the offense for which the accused is being tried.”
State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Noting that the indictment here specified
that the defendant used ropes in the attempted homicide, we decline to address the issue.

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waived, and we will not consider it.

V. Limit on Duration of Trial

The defendant claims that his due process right was infringed upon when the trial
court addressed the jury during trial about the possible length of the proceedings. The State
notes that the defendant did not lodge a contemporaneous objection and that the issue is
therefore waived. The remarks the defendant finds objectionable are:

All right, ladies and gentlemen[,] I think we’re going to go
ahead and stop for the day and I need to tell you several things
here. First of all[,] I think there is a possibility that this case
might go into Thursday. Does anybody have a problem on
Thursday they’re aware of if we have to go into Thursday? I’m
just thinking that’s a possibility. I don’t want to because I’ve got
a full docket, some other things, but I also don’t want to wear
you out as this case proceeds. You can only take so much
information in a day so anyway, but there’s a possibility that it
might go into Thursday so just be aware of that and let your
family know that that’s a possibility.

After these remarks, the trial court specifically asked the parties if they would like
other instructions before the jury was released for the night, and both answered in the
negative. The defendant claims that the statement about the trial court’s preference that the
trial finish prior to Thursday was tantamount to setting a limit on the length of the trial. See
State v. Lee Turner, No. M2005-02749-CCA-R3-CD, 2007 WL 845894, at *12 (Tenn. Crim.
App. June 25, 2007) (McLin, J., dissenting) (noting that it was error to impose a deadline on
deliberations). At the hearing on the motion for a new trial, the trial court found that it had
not limited the duration of the trial, citing the fact that the trial in fact lasted into the
Thursday which the defendant alleged fell outside the time limit. We conclude that the State
is correct that the issue is waived. Moreover, the record supports the trial court’s
determination that it was merely preparing the jurors for the possibility that they might be
away from home longer than expected, and the record also supports the determination that
no limitation was set on the duration of either the trial or jury deliberations. Accordingly, the
defendant is entitled to no relief.

VI. Prosecutorial Misconduct

The defendant next objects to three statements made by the prosecution during closing
arguments. The State asserts that this argument is waived for failure to lodge a

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contemporaneous objection, and the defendant asks us to review for plain error.

“When necessary to do substantial justice, an appellate court may consider an error
that has affected the substantial rights of a party at any time, even though the error was not
raised in the motion for a new trial or assigned as error on appeal.” Tenn. R. App. P. 36(b).
Plain error requires the court to find that:

(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. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). The reviewing court need not consider all factors if
it determines that at least one cannot be established. State v. Nance, 393 S.W.3d 212, 228
(Tenn. Crim. App. 2012).

The “clear and unequivocal rule of law” which the defendant asserts was breached
consists of certain statements made during closing argument by the prosecutor. In closing
argument, misconduct may fall into one of the following categories:

1. It is unprofessional conduct for the prosecutor intentionally to
misstate the evidence or mislead the jury as to the inferences it
may draw.

2. It is unprofessional conduct for the prosecutor to express his
personal belief or opinion as to the truth or falsity of any
testimony or evidence or the guilt of the defendant.

3. The prosecutor should not use arguments calculated to
inflame the passions or prejudices of the jury.

4. The prosecutor should refrain from argument which would
divert the jury from its duty to decide the case on the evidence,
by injecting issues broader than the guilt or innocence of the
accused under the controlling law, or by making predictions of
the consequences of the jury’s verdict.

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 5. It is unprofessional conduct for a prosecutor to intentionally
refer to or argue facts outside the record unless the facts are
matters of common public knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted). When a
prosecutor’s argument falls into an area of proscribed conduct, the error becomes the basis
for reversal only if “the conduct was so improper or the argument so inflammatory that it
affected the verdict to the Appellant’s detriment.” Id. at 5.

The defendant objects to three statements made by the prosecution. During the State’s
rebuttal in closing argument, the District Attorney General referenced the Assistant District
Attorney General’s initial closing argument: “Ms. Nelson is right, if you believe [the victim]
beyond a reasonable doubt[,] that’s all the case the State has to establish[,] if you believe
her.” The defendant appears to argue that this statement is vouching for the credibility of the
victim. However, the plain words of the statement submit the issue to the jury. Because the
victim testified to facts supporting each of the elements required to convict the defendant of
the crimes charged, this is not misconduct but instead an accurate statement of the law.

The defendant also objects that the prosecutor was expressing a personal belief
regarding the verity of the victim’s testimony when he stated, “And you think about the
details that she says. They all ring of credibility.” The prosecution then pointed to certain
details in the victim’s testimony, such as the earring on the floor and the dirty rag, and
referred the jury to the physical evidence which would be taken back to the jury room as
corroboration of the victim’s testimony. The jury was correctly instructed that it was the
arbiter of issues of witness credibility. In our opinion, the prosecutor’s statement falls short
of expressing a personal belief. The Tennessee Supreme Court has noted that it is proper to
point to “specific evidence which tended to” reflect on witness credibility. State v. Sexton,
368 S.W.3d 371, 420 (Tenn. 2012). Here, the prosecution was highlighting favorable
evidence at trial in order to allow the jury to draw inferences regarding credibility.
Accordingly, this statement did not constitute reversible error.

The defendant next objects to the prosecutor’s statement regarding the presence of
semen on the blanket. In closing, the prosecutor stated, “Now[,] we know he penetrated her
because there’s semen on that blanket and there is no other explanation for it. You’ve heard
no other proof for how it got there than what she said.” The presence of semen is, of course,
not proof of penetration, although it would lead to the inference that sexual activity took
place. The prosecutor’s statement could therefore be viewed as a misstatement of the
inferences to be drawn from the evidence. See Goltz, 111 S.W.3d at 6. However, viewing
the statement in the context of the case, we conclude that the defendant is not entitled to
relief. Prejudicial impact can be measured by considering:

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 (1) the facts and circumstances of the case; (2) any curative
measures undertaken by the court and the prosecutor; (3) the
intent of the prosecution; (4) the cumulative effect of the
improper conduct and any other errors in the record; and (5) the
relative strength or weakness of the case

Id. at 5-6. The facts and circumstances of the case establish, as the prosecution noted, no
alternative explanation for the presence of feces and sperm on the blanket. No curative
instructions were requested. During the first part of the prosecution’s opening statement, the
Assistant District Attorney General outlined the elements of each offense, including that the
State had to establish sexual penetration. The Assistant District Attorney General continued,
“[The victim] testified that the defendant penetrated her vagina with his penis repeatedly.
Although [the element] doesn’t require that the State prove the emission of semen[,] we have
proven that the defendant’s sperm was on that pink blanket.” Considering the statement in
the context of the entirety of closing arguments, we conclude that the prosecution was
arguing that the presence of semen and feces on the blanket corroborated the victim’s
statements regarding penetration. The jury instructions correctly charged the jury that it must
find penetration as an element of the offense. The case against the defendant was particularly
strong.

We conclude that even if the statement were error, it was not “so improper or . . . so
inflammatory that it affected the verdict to the Appellant’s detriment.” Goltz, 111 S.W.3d
at 5. Furthermore, we cannot say it adversely affected a substantial right of the accused or
that rectification of the mistake would be necessary to do substantial justice. See Smith, 24
S.W.3d at 282. The defendant is not entitled to relief.

VII. Plain Error in Jury Instructions for Aggravated Rape in Count 2

We are constrained to note that, in the transcript of the jury instructions included on
appeal, no mens rea instruction is given on Count 2, the first aggravated rape count. The
transcript of the oral instructions for Count 2 reads:

Any person who commits the offense of aggravated rape
is guilty of a crime. For you to find the defendant guilty of this
offense the state must have proven beyond a reasonable doubt
the existence of the following essential elements:
(1) that the defendant had unlawful sexual penetration of
the alleged victim; and
(2) that the defendant caused bodily injury to the alleged
victim.

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 If you find the defendant guilty beyond A reasonable of
aggravated rape you may fix a fine in an amount not greater than
$50,000.00.

Although the trial court’s oral jury instructions are included, the written jury
instructions are not part of the record. It is therefore not apparent that the record clearly
establishes what happened in the trial court. See State v. Smith, 24 S.W.3d 274, 282 (Tenn.
2000). In any case, “[t]he failure to instruct the jury on a material element of an offense is
a constitutional error subject to harmless error analysis.” State v. Faulkner, 154 S.W.3d 48,
60 (Tenn. 2005). Where the omitted element is uncontested and supported by uncontroverted
evidence or where the omitted element is necessarily found by the jury, the error may be
harmless beyond a reasonable doubt. See State v. Ducker, 27 S.W.3d 889, 899-900
(Tenn.,2000); State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002) (noting that “harmless error
is not limited to cases in which the verdict necessarily included a finding on the omitted
element”). The jury found the defendant guilty of aggravated rape in Count 3, which
instructed the jury that, in order to convict, it must find that the defendant had acted
intentionally or knowingly.6 Accordingly, the jury necessarily found that the defendant
possessed the requisite mens rea when he committed the rape. In any event, Count 2 and
Count 3 were merged. Accordingly, we conclude that any error was harmless beyond a
reasonable doubt.

VII. Cumulative Error

The defendant, in his reply brief, alleges that cumulative error entitles him to a new
trial. In rare circumstances, the cumulative effect of errors at trial may affect the fairness of
the proceedings and entitle the defendant to relief. State v. Hester, 324 S.W.3d 1, 76 (Tenn.
2012). Having considered the factors outlined in Hester, we conclude that the cumulative
effect of any errors did not deprive the defendant of a fair trial.

VII. Conclusion

Based on the foregoing reasoning, we affirm the judgment of the trial court.
However, we note that the judgment forms for Count 3, aggravated rape, and Count 5,

6
We note some courts have found that recklessness is a sufficient mental state to support
aggravated rape. State v. Hood, 221 S.W.3d 531, 546 (Tenn. Crim. App. 2006); T.C.A. § 39-11-
301(c); but see State v. Womack, No. E2003-02332-CCA-R3-CD, 2005 WL 17428, at *9 (Tenn.
Crim. App. Jan. 4, 2005) (concluding that the definition of “reckless” in Tennessee Code
Annotated section 39-11-302 clarifies that recklessness can only apply to result-of-conduct
offenses or the circumstances surrounding an offense).

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aggravated kidnapping, do not list the conviction offenses; instead, the words “merge with
count 2” and “merge with count 4” appear in the space where the conviction offense should
be written. The record reflects that the defendant was convicted of aggravated rape and
aggravated kidnapping in these counts. We remand for correction of this form.

_________________________________
JOHN EVERETT WILLIAMS, JUDGE

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