State of Tennessee v. Prentis Lee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 12, 2016 Session

STATE OF TENNESSEE v. PRENTIS LEE

Appeal from the Criminal Court for Shelby County
No. 1502464 James C. Beasley, Jr., Judge
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No. W2015-01538-CCA-R3-CD - Filed November 23, 2016
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The Defendant, Prentis Lee, appeals his convictions for two counts of rape and his
resulting ten-year sentence. On appeal, the Defendant contends that (1) the trial court
erred in denying his motion to suppress his statement to police officers; (2) the failure to
preserve a record of the preliminary hearing mandated dismissal of the charges or a new
preliminary hearing; (3) the evidence was insufficient to support the convictions; (4) the
trial court erred in limiting defense counsel‟s cross-examination of various witnesses; (5)
the trial court erred in admitting victim impact evidence; (6) the trial court erred in
allowing the State to present rebuttal witnesses who remained in the courtroom during the
trial; (7) the trial court erred in failing to instruct the jury on assault as a lesser-included
offense of rape; (8) his sentence is excessive; and (9) the cumulative effect of the errors
requires a new trial. Based upon our review of the record, the parties‟ briefs, and the
applicable law, we affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT W. WEDEMEYER, JJ., joined.

Stephen C. Bush, District Public Defender; Barry W. Kuhn (on appeal), Katherine
Oberembt and Trent Hall (at trial), Assistant Public Defenders, for the appellant, Prentis
Lee.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree,
Assistant District Attorney General, for the appellee, State of Tennessee.
 OPINION

FACTUAL AND PROCEDURAL HISTORY

The evidence presented at trial established that the victim, the girlfriend of the
Defendant‟s cousin, became intoxicated at a party, fell asleep at the Defendant‟s home,
and awoke to the Defendant raping her. The Defendant was originally indicted on one
count of rape through the use of force or coercion. See T.C.A. § 39-13-503(a)(1).
Shortly before trial, the grand jury issued a superseding indictment, charging the
Defendant with one count of forcible rape, one count of rape accomplished without
consent, and one count of rape of a mentally defective, mentally incapacitated, or
physically helpless victim. See T.C.A. § 39-13-503(a)(1)-(3). On the day of the trial,
both parties agreed to proceed under the superseding indictment.

State’s Proof

The victim testified that she was twenty-six years old at the time of trial and that
she had been dating Mr. Larry McGowan, whose nickname was “Dump,” continuously
since the age of seventeen. In April 2010, the victim and Mr. McGowan stayed at the
Defendant‟s home for a few days. On April 10, 2010, the victim and Mr. McGowan
attended two parties with the Defendant. Mr. Nicholas Lee, who is the Defendant‟s
brother, and the victim‟s sister also attended the parties. The victim said she did not
drink alcohol often and became intoxicated at the first party after drinking two cups of
beer. The victim began to vomit while at the second party, and the group decided to
leave. The victim stated that upon returning to the Defendant‟s home, she continued to
feel intoxicated and nauseated. Mr. McGowan ran a shower for her and made a pallet on
the living room floor where she lay down and fell asleep. The victim was wearing a shirt
with a towel wrapped around her waist and was covered with a sheet. The Defendant,
Mr. McGowan, and the victim‟s sister were still awake. The victim did not know where
Mr. Lee was.

The victim described herself as a heavy sleeper who was difficult to awaken. She
testified that at some point, she awoke to a man on top of her and “pounding” her. She
later clarified that the man was having sexual intercourse with her. The room was dark,
and the victim was unable to see the man‟s face. The victim yelled Mr. McGowan‟s
name, but the man did not respond. The victim reached out and touched the man‟s navel
and described it as “bushy.” She said Mr. McGowan did not have a “bushy” navel. She
then touched the man‟s face and felt thick facial hair. She said neither Mr. McGowan nor
Mr. Lee had hair in that area of their faces. The victim said the man continued for two or
three minutes after she awoke. She stated that she was in shock and was unable to
respond. The man then got up and ran out of the living room and toward the bedrooms.
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 The victim testified that after she cried, she got up and walked through the house
to see who was awake. She entered the bedroom of the Defendant‟s father, who was not
home at the time, and found Nicholas Lee sleeping and snoring loudly. She then knocked
on the Defendant‟s bedroom door. The Defendant‟s clothes were on the floor, and the
Defendant was naked in his bed. The victim told the Defendant, “You did something to
me,” and he denied that he had committed the acts. The victim explained that she knew
that the Defendant was the man who had raped her because he was the only person in the
house who was awake. Because Mr. McGowan was not around, the victim closed the
bedroom door and returned to the living room where she continued to cry.

The victim cried for approximately five to ten minutes when she heard a knock at
the door. The door was locked, and the lights in the house were off. The victim said she
had not locked the door or turned off the lights. The victim opened the door, and a
woman later identified as Ms. Tasha Banks entered the home, followed by Mr.
McGowan. The victim returned to the living room to lie down, and Mr. McGowan asked
her to go to Mr. Lee‟s bedroom since Mr. Lee was sleeping in his father‟s room. When
the victim and Mr. McGowan entered Mr. Lee‟s room, the victim continued to cry, and
Mr. McGowan asked her what was wrong. The victim told Mr. McGowan, “Your cousin
just raped me.” Mr. McGowan then knocked on the Defendant‟s bedroom door and told
the Defendant that they needed to talk. The victim said some time passed before the
Defendant came to the door. When the Defendant finally came to the door, Mr.
McGowan told him that the victim had stated that he “did something to her.” The victim
said the Defendant became “aggressive,” denied the claims, and characterized the victim
as a “drama queen.” The Defendant told Mr. McGowan and the victim to leave, and they
refused. The victim said that while she yelled at the Defendant, he denied her claims in a
“calm” and “arrogant” manner. At some point, Mr. Lee awoke, and the victim continued
to argue with the Defendant for a period of time before she called the police.

Once the police arrived and spoke to the victim, she was transported to the
Memphis Sexual Assault Resource Center for an examination. The victim said that a
nurse took a vaginal swab and told her that the swab smelled like a condom. The victim
was then transported to the police station where she gave a statement.

The victim testified that she never had a sexual relationship with the Defendant
and did not consent to sexual intercourse with the Defendant on that night. She said that
prior to waking up, she was unaware that anyone, including Ms. Banks, had entered or
left the house. She denied initiating sexual contact with the Defendant as an act of
revenge against Mr. McGowan for his infidelities. The victim denied telling anyone that
she was unsure that the Defendant had raped her or that someone else had raped her.

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 The victim said her attitude and personality changed as a result of the incident.
She stated that she did not trust anyone, could not sleep at another person‟s home, and did
not socialize often. Because the Defendant is Mr. McGowan‟s cousin, she did not spend
as much time with Mr. McGowan‟s family. She recalled occasions during which the
Defendant attended a family function that she also was attending, and she became upset
as a result.

On cross-examination, the victim testified that before and during the first party,
she and the rest of the group shared two or three “blunts” of marijuana. She said they
returned to the Defendant‟s home following the parties at around 2:00 or 3:00 a.m. She
did not know what time she called the police. She said she was not so intoxicated that
she was unable to recall what had occurred.

Upon returning to the Defendant‟s home following the parties, the victim called
her stepfather to let him know that they were unable to drive her sister home because
everyone was intoxicated. The victim then laid down on the floor. Her sister was sitting
on the couch, and the Defendant and Mr. McGowan were playing chess. The victim was
asleep when the Defendant drove her sister home.

The victim testified that the room was too dark to allow her to see her attacker‟s
face. She described her attacker as having sideburns and a beard. She said that her
attacker tried to put his tongue inside her mouth. She attempted to raise her head, but her
attacker had his forehead on her forehead. She believed her attacker was wearing a
condom.

The victim acknowledged that in June 2011, she received $2,000 from the State‟s
victim‟s compensation fund. She denied that she was aware of the fund prior to April
2010 and said she first learned of the fund at the Memphis Sexual Assault Resource
Center. She said that she never discussed the compensation in Mr. Lee‟s presence and
that she never told anyone about a friend receiving $10,000 from the fund for claiming
that she was raped.

The victim denied that she and Mr. McGowan had ever broken up during the
course of their relationship. She also denied that she had ever suspected Mr. McGowan
of being unfaithful and that she and Mr. McGowan had argued over other women. The
victim denied that she was jealous that Ms. Banks and Mr. McGowan had left together to
go to the store, that she propositioned the Defendant as a result, that she and the
Defendant had consensual sex, and that she lied about being raped.

The victim stated that she was arrested for various domestic violence charges
while the Defendant‟s rape charges were pending and that each of her charges were
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dismissed. On May 6, 2014, the victim‟s domestic violence charge involving Mr.
McGowan was dismissed. At the time, the victim already had been subpoenaed to testify
against the Defendant six days later.

The victim testified that from December 2013 to July 2014, she and Mr.
McGowan lived in an apartment next to the Defendant‟s father and Mr. Lee. The
Defendant moved in with his father in May 2014. The victim said she saw the Defendant
on one occasion during that time period.

On redirect examination, the victim testified that the prosecutor in the Defendant‟s
case never came to court on her domestic violence charges. The charge involving Mr.
McGowan was dismissed because Mr. McGowan failed to attend the hearing. The victim
was one of multiple people arrested for the other two domestic violence charges. The
victim stated that she did not receive any promises from the State with regard to her
charges and in exchange for her testimony against the Defendant.

The victim testified that the five years during which the Defendant‟s charges have
been pending have been difficult for her. She explained that her relationship with Mr.
McGowan‟s family has been strained and that it would have been easier on her to decline
to pursue the charges against the Defendant.

Ms. Tasha Banks testified that in April 2010, she had been dating the Defendant
for approximately four months. On April 11, 2010, the Defendant called her sometime
after midnight and relayed his plans to drive to her home and then take her to his house.
When the Defendant asked Ms. Banks whether she had a condom, she said she would
bring a bag of condoms with her. The Defendant arrived at Ms. Banks‟s home with Mr.
McGowan. Ms. Banks said she had not met Mr. McGowan previously. They then
returned to the Defendant‟s house.

Ms. Banks stated that upon arriving at the Defendant‟s home, she saw the victim
sleeping on the floor. The victim was covered with a sheet. Ms. Banks said she had
never seen the victim prior to that night. Ms. Banks stated that the kitchen and the living
room were combined into one open room and that the victim was lying approximately
three inches from the kitchen table. The Defendant and Mr. McGowan sat at the kitchen
table while Ms. Banks went into the Defendant‟s bedroom. Ms. Banks did not know
whether anyone else was in the home.

Ms. Banks testified that ten to fifteen minutes after they arrived, the Defendant
told her that his stomach was hurting and asked her to go to a store to purchase cranberry
juice. The Defendant instructed Ms. Banks to drive his car and to take Mr. McGowan
with her. When Ms. Banks and Mr. McGowan left, the victim was still sleeping on the
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floor. They drove to a convenience store located four to five minutes away. While at the
store, Mr. McGowan purchased cranberry juice and Black & Mild cigars. Ms. Banks
denied that Mr. McGowan propositioned her or had any physical interaction with her.

Ms. Banks stated that before they left the Defendant‟s house, she left the door
unlocked, and the lights were on inside the house. She said that when they returned, the
house was “pitch black,” and the door was locked. Mr. McGowan knocked on the door
“a good three minutes” before the victim opened the door. Ms. Banks said that when she
walked inside, she could tell by the victim‟s facial expression that something was wrong.

Ms. Banks entered the Defendant‟s bedroom and sat on the edge of his bed. She
said that the Defendant was under the sheets and that she could tell that he was naked.
She snatched the sheets away from the Defendant and asked him why he was naked. The
Defendant responded that he was waiting for her to arrive. Ms. Banks stated that he had
not done this previously and that Ms. Banks responded, “You couldn‟t have been waiting
on me.”

Approximately five to ten minutes later, Mr. McGowan knocked on the
Defendant‟s bedroom door and asked Ms. Banks to leave the room because he needed to
talk to the Defendant. Ms. Banks stepped outside the room. The Defendant and Mr.
McGowan remained inside the room with the door closed for approximately fifteen
minutes. Ms. Banks said upon reentering the room, she heard Mr. McGowan ask the
Defendant, “You ain‟t going to say what you done?” Ms. Banks asked what was
happening, and the victim approached and accused the Defendant of raping her. Ms.
Banks said the victim was crying. The Defendant denied the victim‟s claims and accused
the victim of lying. Ms. Banks said during the altercation, the Defendant remained in the
bed and covered with sheets. Ms. Banks told the Defendant that the matter was serious
and that if he did not rape the victim, he needed to get out of the bed. At some point, the
Defendant got out of bed and put on his clothes.

Ms. Banks testified that Mr. McGowan returned to the room and said that if the
Defendant was not going to admit to what he had done, Mr. McGowan was going to call
the police. The Defendant became upset and told everyone to leave. Ms. Banks said she
was not going to walk home. At some point, Mr. Lee came out of his father‟s bedroom
and joined the Defendant in telling everyone that they had to leave.

Ms. Banks stated that prior to going to the convenience store, she left her bag,
which contained eight condoms, on the headboard of the Defendant‟s bed. She later
noticed that one condom was missing. She did not question the Defendant about the
missing condom.

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 Ms. Banks said both the Defendant and Mr. Lee had beards. The Defendant also
had hair on his chest and in the area of his stomach and a scar around the area of his
chest.

On cross-examination, Ms. Banks testified that the victim did not appear to be
intoxicated when she saw her but that both the Defendant and Mr. McGowan appeared to
be under the influence of alcohol. Ms. Banks did not know what time she went to the
store. She said she and Mr. McGowan did not speak while she drove to the store. She
did not know how long everyone argued before the police were called and acknowledged
that the group could have argued for a few hours.

On redirect examination, Ms. Banks testified that when the victim told the
Defendant that he had raped her, the Defendant said, “I didn‟t touch you. You‟re lying.
Ashley told me about you, and they said that you w[ere] trying to set me up.” Ms. Banks
understood that Ashley was the Defendant‟s former girlfriend.

Mr. Larry McGowan testified that at the time of the trial, he and the victim had
been in a relationship for ten or eleven years. He said that on April 10, 2010, he, the
victim, the victim‟s sister, the Defendant, and Mr. Lee attended two parties. Mr.
McGowan said that while the group drank alcohol, he denied that they smoked
marijuana. Everyone in the group, including the victim, became intoxicated. The victim
vomited and was unable to stay awake. They returned to the Defendant‟s home
sometime after midnight. Mr. McGowan assisted the victim in taking a shower and
placed sheets on the living room floor where the victim laid down and fell asleep. Mr.
Lee laid down in his father‟s bedroom.

Mr. McGowan stated that while the victim was sleeping, he and the Defendant
drove the victim‟s sister home, went to Ms. Banks‟s home, and drove Ms. Banks to the
Defendant‟s home. Mr. McGowan said they were gone for forty-five minutes to one
hour. Upon returning, the victim was still sleeping on the living room floor. Mr.
McGowan said he and the Defendant played chess for a few hours at the kitchen table,
and he believed that Ms. Banks sat at the table with them.

Mr. McGowan testified that the Defendant began complaining that his stomach
was hurting, so Mr. McGowan and Ms. Banks went to a convenience store where Mr.
McGowan purchased cranberry juice for the Defendant and cigars. Mr. McGowan stated
that Ms. Banks drove the Defendant‟s car because she was not intoxicated. According to
Mr. McGowan, they were gone for approximately ten minutes.

Mr. McGowan said that when he and Ms. Banks left the Defendant‟s house, the
lights were on in the kitchen. He did not have a key to the house, so he left the door
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unlocked. When they returned, the house was dark, and the door was locked. Mr.
McGowan knocked on the door, and the victim opened it. He said that the victim was
crying and that when he asked her what was wrong, she said, “Your cousin‟s about to go
to jail.” The victim told Mr. McGowan that when she woke up, a man was “in” her.

Mr. McGowan went to the Defendant‟s bedroom and asked Ms. Banks to step
outside of the room so that he and the Defendant could talk. The Defendant denied the
victim‟s claims. The Defendant was lying in his bed and covered with sheets. As a
result, Mr. McGowan was unsure whether the Defendant was wearing clothes. Mr.
McGowan remained in the bedroom for approximately ten minutes and asked the
Defendant several times to get out of bed and talk to him about the claims. The
Defendant eventually got out of bed but never admitted having contact with the victim.
The victim and the Defendant argued, and Mr. Lee woke up as a result. Mr. McGowan
said approximately fifteen minutes passed from the time that he returned from the store
until the police were called.

Mr. McGowan testified that at the time, he did not have hair on his face or his
navel. He believed that the Defendant had facial hair but that Mr. Lee did not.

Mr. McGowan denied that he and Ms. Banks had any physical interaction. He
said he and the victim stopped associating with the Defendant after the incident. Mr.
McGowan also said that whenever he and the victim saw the Defendant, the victim
became upset, and Mr. McGowan would have to escort her from the location.

On cross-examination, Mr. McGowan testified that at the time of the incident, he
and the victim had been together “on and off” for five years. He said they had gone
through rough patches and had broken up a few times.

Mr. McGowan said the Defendant had gotten shot the prior year and was still
recovering. Mr. McGowan believed that the Defendant had a scar that came up from
below his waist and was unsure whether the Defendant was still wearing a bandage at
that time. The Defendant told him that either green tea or cranberry juice help soothe the
pain from the wound. Mr. McGowan said he and the Defendant were sitting at the
kitchen table during their discussion about going to the store and that the victim was
sleeping approximately ten feet or more away.

Mr. McGowan stated that both he and Ms. Banks were necessary for the trip
because he did not have a driver‟s license but planned to make the purchases. During the
drive to the store, Mr. McGowan and Ms. Banks talked about the parties that Mr.
McGowan had attended earlier and listened to the radio. He said they went to the store
around 3:00 or 4:00 a.m.
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 Mr. McGowan said he initially did not know whom to believe and wanted to get
both sides of the story. He stated that while the Defendant was in his bed and under
sheets when Mr. McGowan entered the bedroom, the Defendant appeared to be wearing a
T-shirt. Mr. McGowan said the victim called the police.

Mr. McGowan testified that he had seen the Defendant at family events following
the incident and attempted to talk to him. They played chess together approximately one
month after the incident. Mr. McGowan said that he and the victim lived next door to the
Defendant‟s father and Mr. Lee from late December 2013 to August 2014 and that he was
aware that the Defendant lived with his father at some point. Mr. McGowan stated that
the Defendant came to his apartment and played video games with him once or twice. At
that time, the victim was living with Mr. McGowan.

On redirect examination, Mr. McGowan testified that the victim was not present
when he and the Defendant played video games together. Mr. McGowan said the victim
hated that he associated with the Defendant.

Mr. McGowan said that when the victim opened the door after he and Ms. Banks
returned from the store, the victim told him that she woke up to the Defendant having sex
with her. She said that after she rubbed the perpetrator‟s face and felt his mustache, she
believed that the perpetrator was the Defendant. She also said that when she realized that
the man who was having sex with her was not Mr. McGowan, she “kind of woke up” and
saw the Defendant run to the back of the house.

On re-cross examination, Mr. McGowan testified that he told police officers that
he believed the victim because she did not like to be involved in situations with the
police. He acknowledged that the victim called the police in February 2009 after they
were involved in an altercation. He said he became physical with the victim but denied
that he hit the victim‟s face.

Ms. Tammy Keough, a nurse practitioner with the Memphis Sexual Assault
Resource Center, was admitted by the trial court as an expert in forensic nursing. Ms.
Keough examined the victim on April 11, 2010. According to Ms. Keough‟s medical
chart, the assault occurred around 4:00 a.m. Ms. Keough said that while the victim was
cooperative, she was also tense and crying. The victim reported a vaginal assault and
said she thought the perpetrator may have been wearing a condom. The victim also
reported that she had been kissed inside of her mouth. Ms. Keough took swabs of the
victim‟s mouth and vaginal area. She later took a penile swab from the Defendant.

Ms. Keough said the victim did not have any traumatic injuries. Ms. Keough
explained that it was rare to find vaginal injuries in women who are of child bearing age.
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She stated that the results of the victim‟s examination were consistent with her account of
the events.

On cross-examination, Ms. Keough testified that the victim‟s examination was
consistent with “someone who has had vaginal penetration or sex with any person,”
including consensual sex. Ms. Keough said she did not routinely smell for condom use.

Ms. Keough stated that the victim told her that she “wasn‟t that drunk” and that
she knew what had occurred. According to Ms. Keough‟s report, the victim stated:

I tried to raise up but his head was on my forehead, and he was kissing me
in my mouth. It didn‟t feel right. I kept saying, “Dump, Dump.” He didn‟t
say anything. I went to feel his face and there was hair. Dump don‟t have
no hair on his face. Then I felt his navel, and there was hair. I started
screaming for my boyfriend, then he started doing it real fast. Then he
stopped and got up and ran in the other room. Then I heard someone
knocking on the door. I answered it and I was crying. I told my boyfriend
what happened.

The parties later stipulated that an examination of the vaginal swabs and the
victim‟s underwear did not reveal the presence of semen or saliva. The parties also
stipulated that the testing of the Defendant‟s penile swabs only revealed a partial profile
of the Defendant‟s DNA.

Officers Lee Walker and Andrew Podesta of the Memphis Police Department
received a call to go to the Defendant‟s home at around 6:23 a.m. on April 11, 2010.
Officer Walker testified that when they arrived at the home, they met the victim, who was
crying. Officer Walker believed that the victim had consumed alcohol because she was
not certain what was occurring. He said the victim was “adamant” that something had
happened to her and informed the officers of what had occurred. The officers also
questioned others present at the scene. The Defendant denied the accusations and
maintained that he had been sleeping in his bed. Officer Walker said the Defendant was
the only man in the home who had facial hair.

Officer Walker stated that after obtaining consent from Mr. Lee, he and Officer
Podesta searched the residence. They found an open condom wrapper in the headboard
of a bed in one of the bedrooms.

On cross-examination, Officer Walker testified that the victim reported that she
had consumed alcohol and fell asleep on the floor. The victim stated that she awoke
when she felt someone having sex with her. She told the officer that the room was dark
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and that she was unable to determine the identity of her attacker. Officer Walker said the
victim did not tell him that the Defendant raped her. During the course of the
investigation, Officer Walker learned that the perpetrator had hair on his face and chest.
Officer Walker said that the Defendant and Mr. Lee were suspects and that they both
maintained that they were asleep at the time. The arrest ticket stated that the attack
occurred between 2:00 and 4:00 a.m., which Officer Walker said was based upon
information supplied from the victim.

On redirect examination, Officer Walker testified that the victim said that while
she did not see the perpetrator‟s face, she could feel things on him and recognized what
she was feeling. Officer Walker said that the victim was sure about feeling hair and that
her boyfriend did not have facial hair.

Lieutenant Celia Tisby of the Memphis Police Department testified that in April
2010, she was a sergeant in the Sex Crimes Division and was the lead investigator in the
case. She went to the scene where she spoke to the victim. Lieutenant Tisby said that the
victim appeared to be upset and that the victim‟s demeanor was similar to rape victims in
other cases in which Lieutenant Tisby had investigated. The victim told Lieutenant Tisby
what had occurred.

Lieutenant Tisby and Major Chorcie Jones interviewed the Defendant at the
division‟s office. Lieutenant Tisby testified that prior to the interview, the Defendant
signed a waiver of rights form and agreed to speak with the officers. The waiver of rights
form, however, was missing from the file. Lieutenant Tisby did not know whether the
file was misplaced during the investigation or after the file was given to the prosecutors.
The Defendant‟s statement began at 1:55 p.m. and concluded at 2:40 p.m.
Lieutenant Tisby typed the questions asked and the Defendant‟s answers. She said that
the Defendant was given the opportunity to review and sign his statement but that he
chose not to sign it. She explained that throughout the interview, the Defendant asked
whether he would be charged. She stated that after the interview concluded, the
Defendant learned that he was still going to be charged and refused to sign his statement.

The Defendant told the officers that he, Mr. Lee, Mr. McGowan, the victim, and
the victim‟s sister attended a party where they were drinking alcohol. The Defendant
believed that the victim was drinking beer and vodka and said she vomited. They
returned to the Defendant‟s home around 2:00 or 3:00 a.m.

The Defendant stated that while he and Mr. McGowan were sitting at a table
playing chess, he asked Mr. McGowan and Ms. Banks to go to a store and purchase a
Black & Mild cigar. The Defendant said that while he and Mr. McGowan were
discussing a trip to the store, Mr. McGowan asked whether Ms. Banks would go too. The
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Defendant explained that he sent Ms. Banks to the store with Mr. McGowan because Mr.
McGowan “was trying to mess” with Ms. Banks and did not want to do so at the
Defendant‟s home with the victim present. The Defendant said he and Mr. McGowan
occasionally shared women.

The Defendant told the officers that after Mr. McGowan and Ms. Banks left, the
victim woke up and said, “[Y]‟all think y‟all slick, who is that girl?” The Defendant said
he told the victim who Ms. Banks was but that the victim did not believe him. According
to the Defendant, the victim said, “He [is] going [to] quit playing with me. I‟m going to
show him.” The Defendant said that the victim rolled over, that her sheet came off of
her, and that the victim was naked. He stated that the victim asked him, “[D]o you want
some of this?” The Defendant went to his bedroom and retrieved a condom from Ms.
Banks‟s bag. He said that when he returned to the living room, he asked the victim
whether she was “playing” and that she said no. He stated they then had sexual
intercourse. He also stated that when the victim began calling Mr. McGowan‟s name, he
believed that Mr. McGowan was returning, so the Defendant went back into his bedroom.
After Mr. McGowan and Ms. Banks returned two or three minutes later, Mr. McGowan
knocked on the Defendant‟s door and asked him what had occurred between him and the
victim. The Defendant denied that anything had occurred, and the victim began crying
and said that the Defendant did something to her. The Defendant stated that he told the
victim and Mr. McGowan to call the police and tried to make them leave.

The Defendant stated that he did not know why the victim accused him of raping
her. He said the victim was likely angry because he had helped Mr. McGowan “get other
girls.” The Defendant explained that he denied to Mr. McGowan that he and the victim
had any sexual contact because he did not want Mr. McGowan and the victim to argue.
The Defendant said he flushed the condom and the wrapper down the toilet. Lieutenant
Tisby described the Defendant as “[k]ind of a little arrogant, kind of like self-assured,
cocky like.”

Major Chorcie Jones testified that in April 2010, he was assigned to the Sex
Crimes Unit of the Memphis Police Department and was present when the Defendant
gave a statement. He said that the Defendant was presented with a waiver of rights form
and that he was positive that the Defendant reviewed the form. Major Jones stated that
the presentation of the form was standard procedure and that he has never taken a
statement from a suspect without the suspect first signing the form. Major Jones
explained, “You‟re getting ready to potentially take somebody‟s freedom away. I would
want to get that right.” He maintained that the Defendant was advised of his rights,
indicated that he understood his rights, said he wished to waive his rights and speak to the
officers, and signed the waiver form. Major Jones later learned that the waiver form was
missing.
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 W.D. Merritt, an investigator with the Shelby County District Attorney‟s Office,
testified that he searched the entire file for the missing waiver form but was unable to
locate it.

Ms. Shelly Vincent, a victim/witness coordinator for the Shelby County District
Attorney General‟s Office, testified that she assists in processing claims for the Criminal
Injury Compensation Fund after a victim submits a form to the claims administration in
Nashville. Ms. Vincent explained that the fund provides compensation to innocent
victims of crimes. To qualify for compensation, the victim must have reported the crime
to the police within forty-eight hours and must fully cooperate in the investigation and
prosecution of the crime. Victims of sex abuse crimes must have undergone a forensic
examination at the Memphis Sexual Assault Center. A victim of rape may obtain up to
$3,000 for pain and suffering and reimbursement for any medical bills paid.

Ms. Vincent said a victim may receive information about the fund from the police,
a medical facility where the victim received treatment, or the Memphis Sexual Assault
Center. If the perpetrator is arrested and sufficient evidence to prosecute the case exists,
the District Attorney General‟s Office sends a brochure to the victim detailing the
Criminal Injury Compensation Fund and how to apply for compensation.

The Memphis Sexual Assault Resource Center submitted a request for
reimbursement for the expenses related to the victim‟s forensic examination. On June 29,
2011, the center was paid $750.00. The victim submitted an application for funds, which
was signed and notarized on February 28, 2011. The victim was paid $2,000 from the
fund on March 2, 2011.

On cross-examination, Ms. Vincent testified that the victim would not have
received funds had she not cooperated in the Defendant‟s prosecution. Ms. Vincent later
stated that the victim could have decided not to pursue the charges against the Defendant
after she had received the funds.

Defense Proof

Mr. Nicholas Lee, the Defendant‟s brother, testified that on April 11, 2010, he was
living with his father and the Defendant. Mr. Lee said he saw Mr. McGowan with other
women on a few occasions. Mr. Lee stated that in 2010, Mr. McGowan was dating
Ashley Campbell and that she later began dating the Defendant. According to Mr. Lee,
Ms. Campbell was living with the Defendant in April 2010, but the Defendant drove her
to her mother‟s home on April 10 because he did not want Ms. Campbell to be around
those attending the party with him.

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 Mr. Lee testified that everyone was drinking alcohol while at the party and that he
could not recall whether the victim was smoking marijuana. They returned from the
second party at around 3:00 a.m. Mr. Lee said he went to his father‟s bedroom where he
fell asleep. He also said that while he was not intoxicated at that time, he was likely
“high.” Mr. Lee stated that before he went to bed, he saw the victim speaking to her
sister. He denied that the victim was intoxicated and said she was “talking normal.”

Mr. Lee stated that he awoke around 4:00 or 5:00 a.m. and got up to use the
restroom. He maintained that he did not hear anyone talking or walking around the house
at that time. He awoke the second time when Mr. McGowan came to his room and
requested a lighter. Mr. Lee said he never heard the victim scream at any point.

Mr. Lee testified that when he came out of his father‟s bedroom, he saw the
Defendant and Mr. McGowan talking and that they were not arguing. At some point, Mr.
Lee learned that something had occurred. The police were called approximately one hour
after Mr. Lee awoke. Officers placed Mr. Lee and the Defendant in handcuffs and
transported them to the police station. Mr. Lee understood that he was a suspect in the
victim‟s rape. He stated that three or four days prior to the incident, he heard the victim
state that a friend received $10,000 from the victim‟s compensation fund after she
claimed that she was raped.

Mr. Lee recalled a time period following the incident during which he and his
father lived in an apartment next door to Mr. McGowan and the victim. The Defendant
also lived with Mr. Lee and his father for some time. Mr. Lee said he saw Mr. McGowan
daily and that they visited each other‟s apartments. Mr. Lee stated that the victim also
came to his apartment while the Defendant was living there. Mr. Lee recalled that the
victim never stayed long, did not act upset or scared, and did not speak to the Defendant.

On cross-examination, Mr. Lee acknowledged that he never informed police
officers of the victim‟s statements about her friend receiving victim compensation. Mr.
Lee maintained he did not do so because the officers never asked him about the
statements. Mr. Lee later stated that he did not recall whether he informed officers of the
victim‟s statements. He said the victim told him, the Defendant, Mr. McGowan, and Ms.
Campbell that a friend received $10,000 after she falsely accused someone of rape. Mr.
Lee also said he informed the State‟s investigator of the victim‟s statements the day
before he testified at trial and that he attempted to relay the victim‟s statements to a
prosecutor sometime earlier.

Mr. Lee testified that he had been subpoenaed each time that the Defendant‟s case
had been set for trial. He explained that he did not come to court on one occasion
because the prosecutor told him that he did not need to do so. Mr. Lee denied telling the
-14-
State‟s investigator that he did not attend the proceedings because his father told him that
he was not required to do so. The Defendant later told Mr. Lee that a warrant had been
sworn out on him because he failed to come to court, but Mr. Lee did not go to court to
resolve the matter. Mr. Lee acknowledged that he attended the trial the previous day
after he was subpoenaed by the defense. He then spoke to the State‟s investigator for the
first time in more than one year.

State’s Rebuttal Proof

The State recalled Mr. Merritt, who testified that he was asked to locate Mr. Lee,
serve him with subpoenas for the court appearances, and attempt to interview him. Mr.
Merritt spoke to Mr. Lee on two occasions prior to trial, once in person and once over the
telephone. Mr. Merritt said that it was not until the afternoon before Mr. Lee testified at
trial that Mr. Lee informed him that the victim made statements regarding victim
compensation prior to the incident and that Mr. Lee had gotten up in the middle of the
night of the incident and did not see or hear anything. Mr. Merritt stated that he was
present when the prosecutor met with Mr. Lee and that Mr. Lee never mentioned that the
victim had made statements regarding victim compensation prior to the incident.

Mr. Merritt testified that he served Mr. Lee with a subpoena last year but that Mr.
Lee failed to appear in court. As a result, an arrest warrant was issued, and unsuccessful
attempts were made to secure Mr. Lee‟s appearance. Mr. Merritt was unable to serve Mr.
Lee with a subpoena for the trial.

The State recalled Lieutenant Tisby, who testified that she interviewed Mr. Lee on
April 11, 2010. Lieutenant Tisby said Mr. Lee was very cooperative and appeared to
have little knowledge of the events. When the officers asked Mr. Lee whether anyone
was intoxicated, Mr. Lee said the victim was intoxicated and that she vomited while at
the second party. Lieutenant Tisby stated that Mr. Lee never told the officers that the
victim may have falsely reported the rape or that he had heard her make comments about
knowing someone who had falsely reported a rape and received a large sum of money.

Lieutenant Clyde Jefferson, testified that in 2010, he was a sergeant with the Sex
Crimes Bureau of the Memphis Police Department and assisted in interviewing Mr. Lee.
Lieutenant Jefferson described Mr. Lee as “nonchalant” and said he believed that Mr. Lee
wanted to assist the Defendant. Lieutenant Jefferson said that while Mr. Lee did not
specifically state that the victim was intoxicated, Mr. Lee said the victim vomited and
gave Lieutenant Jefferson the impression that she was intoxicated. Mr. Lee never told
Lieutenant Jefferson that the victim may have falsely reported the rape in order to receive
compensation because she had a friend who did the same thing.

-15-
 The State recalled Mr. McGowan, who testified that prior to the victim‟s rape, he
never heard the victim state that a friend had received compensation after falsely
accusing someone of rape. On cross-examination, Mr. McGowan stated that he was
unaware that the victim had received $2,000 from the victim‟s compensation fund.

The State recalled the victim, who denied telling Mr. McGowan, the Defendant,
and Mr. Lee that she had a friend who falsely claimed rape and received compensation as
a result. The victim said she first learned of the victim‟s compensation fund following
the rape.

On cross-examination, the victim testified that she remained in the courtroom for
the majority of the trial and heard the testimony of Mr. Lee and other witnesses. She
denied that she discussed the trial with Mr. McGowan.

At the conclusion of the trial, the jury acquitted the Defendant of the charge of
rape by force or coercion and convicted the Defendant of rape accomplished without
consent and rape of a mentally defective, mentally incapacitated, or physically helpless
victim. The trial court merged the two convictions. Following a sentencing hearing, the
trial court sentenced the Defendant as a standard offender to ten years in confinement at
100 percent. This appeal followed.

ANALYSIS

On appeal, the Defendant contends that (1) the trial court erred in denying his
motion to suppress his statement to police officers; (2) the failure to preserve a record of
the preliminary hearing mandated dismissal of the charges or a new preliminary hearing;
(3) the evidence was insufficient to support the convictions; (4) the trial court erred in
limiting defense counsel‟s cross-examination of various witnesses; (5) the trial court
erred in admitting victim impact evidence; (6) the trial court erred in allowing the State to
present rebuttal witnesses who remained in the courtroom during the trial; (7) the trial
court erred in failing to instruct the jury on assault as a lesser-included offense of rape;
(8) the Defendant‟s sentence is excessive; and (9) the cumulative effect of the errors
requires a new trial.

I. SUPPRESSION OF STATEMENT

The Defendant maintains that the trial court erred in denying his motion to
suppress his statement to the police. Specifically, he asserts that the evidence establishes
that he was not advised of his rights and did not voluntarily waive his rights. The State
responds that the evidence established that the Defendant was advised of his rights and
voluntarily waived his rights and agreed to give a statement. We agree with the State.
-16-
 A trial court‟s factual findings made during a motion to suppress are binding on an
appellate court unless the evidence preponderates against them. State v. Saylor, 117
S.W.3d 239, 244 (Tenn. 2003). Determinations of witness credibility and the resolution
of conflicts in the evidence are left to the trial court. State v. Riels, 216 S.W.3d 737, 753
(Tenn. 2007). An appellate court may consider testimony presented at trial in reviewing
the trial court‟s conclusions in a motion to suppress evidence. Id. The prevailing party is
entitled to the strongest legitimate view of the evidence and to all reasonable inferences
drawn from the evidence. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008). A trial
court‟s conclusions of law are reviewed de novo. State v. Sawyer, 156 S.W.3d 531, 533
(Tenn. 2005). Likewise, a trial court‟s application of law to the facts is reviewed de
novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

A. Suppression Hearing

Prior to trial, the Defendant filed a motion to suppress his statement to the police,
alleging that his statement was not freely and voluntarily given. During the suppression
hearing, defense counsel clarified that the Defendant was seeking to suppress his
statement on the basis that he was not advised of his rights and did not waive his rights
prior to making the statement.

During the suppression hearing, Lieutenant Tisby testified that she and Major
Jones interviewed the Defendant in the office of the Sex Crimes Division on April 11,
2010. The interview took place in a small “secretary‟s room” with a desk, a stool, and a
few chairs.

Lieutenant Tisby said she advised the Defendant of his rights but did not recall
whether she read the waiver of rights form to the Defendant. She stated that the
Defendant indicated that he understood his rights and signed the waiver form. She also
stated that the Defendant did not have any questions about his rights, did not request
counsel, and did not stop the questioning at any point. Lieutenant Tisby said that the
waiver form signed by the Defendant was missing from the file and that she was unable
to locate it. She maintained that in her twenty-four years with the Memphis Police
Department, she had never taken a statement from a suspect without advising him of his
rights and providing him with the waiver form.

Lieutenant Tisby testified that after the Defendant signed the waiver form, she
proceeded to take a typewritten statement from him. The questions and answers were
typed as they were being stated. Lieutenant Tisby said the Defendant never indicated that
he wished to end the interview. After the statement was completed, the Defendant
reviewed the statement but refused to sign it. The Defendant said he was going to be
arrested regardless.
-17-
 On cross-examination, Lieutenant Tisby testified that the Defendant was under
arrest when he was questioned. The Defendant signed a release agreeing to submit a
DNA sample at 1:10 p.m., and his statement was taken at 1:55 p.m. Lieutenant Tisby
said the waiver of rights form pertaining to a DNA sample was not the same as the
waiver of rights form pertaining to a statement. She denied that she forgot to provide the
Defendant with the rights waiver form for his statement after he had signed the waiver
form agreeing to submit to a DNA sample.

Lieutenant Tisby testified that the Defendant was handcuffed during the interview
and was not free to leave at any time. The Defendant asked whether he was being
“charged,” and Lieutenant Tisby told him that he was not. She explained that prior to
making the statement, the Defendant was under arrest but was not yet charged. She said
that during the interview, the Defendant knew that he was under arrest but specifically
asked whether he was going to be “charged.” Lieutenant Tisby said that after the
interview concluded, the Defendant asked whether he was under “arrest,” and she told
him that he was. The Defendant then refused to sign the statement. Lieutenant Tisby
was unsure whether she conferred with a prosecutor prior to asking the Defendant to sign
his statement. She stated that the Defendant never requested counsel.

Major Jones testified that he assisted Lieutenant Tisby during the Defendant‟s
interview. Major Jones said either he or Lieutenant Tisby would have advised the
Defendant of his rights before questioning him. Major Jones also said that one of the
officers would have read the waiver form aloud to the Defendant, that the Defendant
would have been given an opportunity to read the waiver form, and that the Defendant
would have signed the form. Major Jones stated that he was present when these events
occurred and that to his knowledge, the Defendant did not ask any questions about his
rights. Major Jones also stated the Defendant indicated that he understood his rights and
never requested counsel. Major Jones testified that in his twenty-two and one-half years
with the Memphis Police Department, he had never taken a statement from a suspect
without first advising the suspect of his rights and obtaining a waiver of those rights. He
said that had the Defendant requested counsel and stated that he did not wish to speak to
the officers, the officers would have concluded the interview. Major Jones did not recall
why the Defendant refused to sign his statement.

On cross-examination, Major Jones testified that he could not recall whether he
was present when the Defendant signed the form agreeing to provide a DNA sample and
when the sample was taken. Major Jones acknowledged that his testimony was not based
upon personal recollection but upon what steps were required based upon his training.
On redirect examination, Major Jones testified that whenever he was present for an
interview of a suspect, he ensured that he also was present when the suspect was advised

-18-
of his rights because Major Jones would likely be required to sign the waiver form as a
witness.

The Defendant testified that while he was initially placed in handcuffs, he was no
longer handcuffed when he was questioned by the officers. He said he asked the officers
whether he was under arrest, and they stated that he was not. He stated that he asked the
officers whether he needed an attorney and that they told him that they just wanted to ask
him some questions and obtain a DNA sample. The Defendant acknowledged that he
signed a form agreeing to provide a DNA sample.

The Defendant testified that once the officers began questioning him, he asked
them again whether he was under arrest and stated that if so, he wanted an attorney. He
stated that the officers told him, “[N]o, we just want to ask you some questions.” The
Defendant maintained that when he gave the statement, he did not know that he was
under arrest and that the officers planned to use the statement against him. He said he
believed that the officers were going to allow him to leave after the interview was
completed. He maintained that he would not have given the statement if he had been
advised of his rights and told that he was under arrest before the questioning began.

The Defendant testified that when Lieutenant Tisby gave him the statement to
sign, the Defendant asked whether he was going to jail, and Lieutenant Tisby confirmed
that he was going to jail. The Defendant then refused to sign the statement, and
Lieutenant Tisby informed him that he was under arrest.

On cross-examination, the Defendant acknowledged that he had prior felony
convictions but later stated that he had never given a statement to the police with regard
to the prior convictions. He testified that he did not have the opportunity to review his
statement. He said that when Lieutenant Tisby told him that he was going to jail, he
refused to sign the statement and requested counsel.

The State recalled Major Jones who stated that to his knowledge, the Defendant
did not request counsel prior to the interview. Major Jones said neither he nor Lieutenant
Tisby told the Defendant that he did not need an attorney. Major Jones stated that had the
Defendant requested counsel, the officers would have ended the interview. On cross-
examination, Major Jones acknowledged that his testimony was based upon his review of
the supplemental police report and that he did not have any personal recollection of the
interview.

At the conclusion of the hearing, the trial court denied the Defendant‟s motion to
suppress. The trial court credited the officers‟ testimony and found that the Defendant
was advised of his rights and that he agreed to talk to the officers. The court noted that
-19-
although no one can explain what happened to the rights waiver form, both officers were
“very, very adamant about the fact that they have never nor would they ever take a …
statement without giving … an advice of rights and if the witness ever asked for a lawyer
or said I don‟t want to talk, they would not proceed.” The trial court also found that the
Defendant gave his statement “freely and voluntarily without threats or coercion in any
form or fashion.”

B. Waiver of Miranda Rights

Both the United States and Tennessee Constitutions recognize a privilege against
compelled self-incrimination. See U.S. Const. amend. V; Tenn. Const. art. I, § 9. In
Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court set forth
procedure safeguards to secure the Fifth Amendment privilege against self-incrimination.
Prior to a custodial interrogation, law enforcement officers must warn the accused that

he has the right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.

Miranda, 384 U.S. at 479. After a person has been advised of these warnings, he or she
may “knowingly and intelligently waive these rights and agree to answer questions or
make a statement.” Id.; see Edwards v. Arizona, 451 U.S. 477, 484 (1981). “„[U]nless
and until such warnings and waiver are demonstrated by the prosecution at trial,‟
statements given during custodial interrogation are not admissible in the prosecution‟s
case-in-chief.” State v. Freeland, 451 S.W.3d 791, 814 (Tenn. 2014) (quoting Miranda,
384 U.S. at 479).

The State has the burden of proving by a preponderance of the evidence that the
Defendant waived his rights under Miranda. Freeland, 451 S.W.3d at 814; State v.
Climer, 400 S.W.3d 537, 564 (Tenn. 2013). The State‟s burden is satisfied if,

based on the totality of the circumstances surrounding the interrogation, it
shows that the waiver was voluntary in that “it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception,” and
was knowing in that it was made “with a full awareness of both the nature
of the right being abandoned and the consequences of the decision to
abandon it.”

Freeland, 451 S.W.3d at 814 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).

-20-
 While the Defendant testified at the suppression hearing that prior to giving the
statement, he was unaware that he was under arrest and was not advised of his rights, the
trial court did not credit the Defendant‟s testimony. Rather, the trial court credited the
officers‟ testimony that the Defendant was advised of his rights, waived his rights, and
agreed to make a statement. Determinations of witness credibility and the resolution of
conflicts in the evidence are left to the trial court. Riels, 216 S.W.3d at 753. Although
the State was unable to produce the Defendant‟s signed written waiver during both the
trial and the suppression hearing, this court has recognized that an explicit waiver may be
written or oral. State v. Steven James McCain, No. M2000-02989-CCA-R3-CD, 2002
WL 1033249, at *6 (Tenn. Crim. App. May 22, 2002). The trial court found that the
Defendant waived his rights and agreed to make a statement after the officers informed
him of his rights, and the evidence does not preponderate against the trial court‟s
findings.

C. Voluntary Statement

The Defendant also argues that his statement was involuntary. See Dickerson v.
United States, 530 U.S. 428, 432-33 (2000) (noting that the test for determining the
voluntariness of a statement is distinct from the issue of a defendant‟s waiver of his
Miranda rights). To determine the voluntariness of a statement or a confession, “the
essential inquiry … is whether a suspect‟s will was overborne so as to render the
confession a product of coercion.” Climer, 400 S.W.3d at 568; see also State v. Smith,
933 S.W.2d 450, 455 (Tenn. 1996) (“The test of voluntariness for confessions under
article I, § 9 of the Tennessee Constitution is broader and more protective of individual
rights than the test of voluntariness under the Fifth Amendment.”).

Courts must examine the totality of the circumstances surrounding the statement
or a confession, including “both the characteristics of the accused and the details of the
interrogation.” Climer, 400 S.W.3d at 568 (quoting Dickerson, 530 U.S. at 434). The
relevant circumstances are:

[T]he age of the accused; his lack of education or his intelligence level; the
extent of his previous experience with the police; the repeated and
prolonged nature of the questioning; the length of the detention of the
accused before he gave the statement in question; the lack of any advice to
the accused of his constitutional rights; whether there was an unnecessary
delay in bringing him before a magistrate before he gave the confession;
whether the accused was injured[,] intoxicated[,] or drugged, or in ill health
when he gave the statement; whether the accused was deprived of food,
sleep [,] or medical attention; whether the accused was physically abused;
and whether the suspect was threatened with abuse.
-21-
Id. (alterations in original) (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn.
1996)). No single factor, however, is necessarily determinative. State v. Blackstock, 19
S.W.3d 200, 208 (Tenn. 2000).

The Defendant did not specifically address these factors in his appellate brief and
presented no evidence at the suppression hearing to support his claim that his statement
was involuntarily given. The evidence presented at the suppression hearing and at trial
established that the Defendant was approximately thirty years old at the time of the
statement and had an eleventh grade education. The Defendant was familiar with the
legal system through his prior felony convictions. The interview was not prolonged,
lasting less than one hour.

The Defendant asserts that the interrogation was “incognito” in that he was “seated
in a small room with a desk, a little stool for him to sit on, and a couple of chairs, with
only the interrogating officers present.” He also asserts that he was misled about whether
he was in custody or was going to be charged and that he would not have given the
statement had he known that he would be charged anyway. While Lieutenant Tisby
acknowledged that she told the Defendant that he was not being charged, she also
testified that the Defendant had been placed under arrest and in handcuffs prior to the
interview. The Defendant was then advised of his Miranda rights, including the fact that
anything he said could be used against him in court. He voluntarily waived his rights and
agreed to make a statement. No evidence was presented establishing that the officers
promised or threatened the Defendant or otherwise engaged in any coercive police
activity during the interview in an effort to obtain a statement. See Colorado v. Connelly,
479 U.S. 157, 167 (1986) (stating that “coercive police activity is a necessary predicate to
finding that a confession is not „voluntary‟ within the meaning of the Due Process Clause
of the Fourteenth Amendment”); Freeland, 451 S.W.2d at 817. The evidence does not
preponderate against the trial court‟s finding that the Defendant‟s statement was
voluntary. Therefore, the Defendant failed to establish that the trial court erred by
denying his motion to suppress his statement to the police.

II. RECORD OF THE PRELIMINARY HEARING

The Defendant asserts that because the record of his preliminary hearing was not
preserved, the trial court erred in failing to either dismiss the case or order a new
preliminary hearing. The State responds that the Defendant is not entitled to relief
because he failed to file a motion for a new preliminary hearing within sixty days of his
arraignment in accordance with Rule 5.1(a)(3) of the Tennessee Rules of Criminal
Procedure. We agree with the State.

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 The record reflects that the Defendant was originally indicted on the charge of
rape accomplished by force or coercion on March 8, 2011, and was arraigned on the
charge on August 1, 2011. The Defendant filed a motion requesting that the trial court
either dismiss the indictment or order a new preliminary hearing on March 26, 2015.
During the hearing on the Defendant‟s motion, the parties agreed that following the
preliminary hearing, the general sessions court dismissed the case, and the Defendant had
the charge expunged from his record. The State later obtained an indictment from the
grand jury charging the Defendant with rape by force. Following a hearing, the trial
court denied the Defendant‟s motion.

Rule 5.1(a)(3) of the Tennessee Rules of Criminal Procedure addresses a
defendant‟s right to access to the record of the preliminary hearing and provides in
pertinent part:

The evidence of the witnesses does not have to be reduced to writing by the
magistrate, or under the magistrate‟s direction, and signed by the respective
witnesses; but the proceedings shall be preserved by electronic recording or
its equivalent. If the defendant is subsequently indicted, such recording
shall be made available to the defendant or defense counsel so they may
listen to the recording in order to be apprised of the evidence introduced in
the preliminary examination. Where the recording is no longer available or
is substantially inaudible, the trial court shall order a new preliminary
hearing upon motion of the defendant filed not more than 60 days following
arraignment. The indictment shall not be dismissed while the preliminary
hearing is pending….

Even when the general sessions court dismisses a case following a preliminary hearing, a
defendant is entitled to the recording of the preliminary hearing in the event the defendant
is later prosecuted for the same offense through indictment or presentment. Tenn. R.
Crim. P. 5.1(c). “The remedy for the failure to preserve the recording in this
circumstance shall be as set forth in subsection (a)(3).” Id.

“[A] defendant‟s remedy for a lost or damaged recording is merely another
preliminary hearing and not … dismissal of [the] indictment.” State v. Angela K.
Pendergrass, No. E2013-01409-CCA-R3-CD, 2014 WL 1232204, at *5 (Tenn. Crim.
App. Mar. 25, 2014), perm. app. denied (Tenn. Aug. 26, 2014). In providing that the trial
court will order a new preliminary hearing “upon motion of the defendant,” Rule
5.1(a)(3) makes “it clear that a preliminary hearing is not required but rather will be
granted only upon request of the defendant.” Id.

-23-
 Pursuant to Rule 5.1(a)(3), the Defendant was required to file a motion seeking a
new preliminary hearing within sixty days of his arraignment for the rape charge on
August 1, 2011. The Defendant did not file a motion until more than three years after his
arraignment. Therefore, the Defendant‟s motion was untimely, and he is not entitled to
relief.

The Defendant maintains that the sixty-day time period began again once he was
arraigned on the superseding indictment. The superseding indictment, charging the
Defendant with three counts of rape, was returned on May 14, 2015. The Defendant was
arraigned on the superseding indictment on May 18. The Defendant, however, did not
renew his motion for a new preliminary hearing prior to trial. Rather, prior to the
beginning of trial on May 18, defense counsel stated that the Defendant waived any time
constraints, agreed to proceed under the new indictment, and was prepared to proceed
with the trial. Accordingly, the Defendant is not entitled to relief with regard to this
issue.

III. SUFFICIENCY

The Defendant contends that the evidence is insufficient to support his two
convictions for rape. When a defendant challenges the sufficiency of the evidence, the
relevant question for this court is “whether, after viewing the evidence in the light most
favorable to the State, 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 (1979).
On appeal, “„the State is entitled to the strongest legitimate view of the evidence and to
all reasonable and legitimate inferences that may be drawn therefrom.‟” State v. Elkins,
102 S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this court, who resolves any 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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

This court applies the same standard of review regardless of whether the
conviction was predicated on direct or circumstantial evidence. State v. Dorantes, 331
S.W.3d 370, 381 (Tenn. 2011). “Circumstantial evidence alone is sufficient to support a

-24-
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).

As it relates to this case, rape is defined as “unlawful sexual penetration of a
victim by the defendant or of the defendant by a victim” where “[t]he sexual penetration
is accomplished without the consent of the victim and the defendant knows or has reason
to know at the time of the penetration that the victim did not consent” or “[t]he defendant
knows or has reason to know that the victim is mentally defective, mentally incapacitated
or physically helpless.” T.C.A. § 39-13-503(a)(2), (3). The term “sexual penetration”
means “sexual intercourse … or any other intrusion, however slight, of any part of a
person‟s body … into the genital or anal openings of the victim‟s … body.” Id. § 39-13-
501(7). A “physically helpless” person is “unconscious, asleep or for any other reason
physically or verbally unable to communicate unwillingness to do an act.” Id. § 39-13-
501(5).

The Defendant does not challenge whether the State proved the elements of the
offenses, but only challenges the sufficiency of the evidence regarding his identity as the
perpetrator. The identity of the perpetrator “is an essential element of any crime.” State
v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity “may be established solely on the
basis of circumstantial evidence.” State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010).
The issue of identity is a question of fact left to the jury as the trier of fact to resolve.
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).

The Defendant asserts that absent his statement to the police, the evidence is
insufficient to establish his identity as the perpetrator. We have held that the Defendant‟s
statement, in which he maintained that he and the victim engaged in consensual sexual
intercourse, was properly admitted at trial.

Additional evidence establishing the Defendant as the perpetrator also was
presented at trial. At trial, the defense did not contest that the Defendant and the victim
engaged in sexual intercourse. Rather, the defense was that the sexual intercourse was
consensual. The victim identified her rapist as having hair on his face and stomach. The
Defendant was the only man in the house who had facial hair similar to that described by
the victim and stomach hair. The Defendant arranged for Ms. Banks and Mr. McGowan
to leave the home so that he would be alone with the unconscious victim while his
brother slept in another room. The lights were on and the door was unlocked when Ms.
Banks and Mr. McGowan left the victim sleeping and the Defendant awake in the room,
but the lights were off and the door was locked when they returned. When they entered
the apartment, Ms. Banks and Mr. McGowan found the victim distraught. The Defendant
also was the only person who was awake inside the house when the rape occurred. He
was found in his bed, naked and under the sheets, shortly after the rape occurred, and his
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girlfriend discovered that one of the condoms that she had left in the Defendant‟s
bedroom was missing. The discarded condom wrapper was found by police at the head
of a bed. This evidence, along with the Defendant‟s statement admitting that he engaged
in sexual intercourse with the victim, was sufficient to establish the Defendant as the
perpetrator.

The evidence presented at trial established that the Defendant engaged in sexual
intercourse with the victim while she was intoxicated and sleeping and without her
consent. This evidence is sufficient to support the Defendant‟s two rape convictions.

IV. LIMITATION OF CROSS-EXAMINATION

The Defendant argues that the trial court erred in refusing to allow defense counsel
to question the victim about whether she and Mr. McGowan had ever argued about other
women. The Defendant also argues that the trial court erred in refusing to allow defense
counsel to question Mr. McGowan regarding his relationships with women other than the
victim. The State responds that the trial court did not abuse its discretion regarding its
evidentiary rulings. We agree with the State.

This court reviews a trial court‟s rulings on evidentiary matter for an abuse of
discretion. See, e.g., State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). “Reviewing
courts will find an abuse of discretion only when the trial court applied incorrect legal
standards, reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employed reasoning that causes an injustice to the
complaining party.” Id. (citation omitted).

The Defendant maintains that the excluded evidence was relevant pursuant to
Tennessee Rule of Evidence 401, which provides that evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” Tenn.
R. Evid. 401. Nevertheless, relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Tenn. R. Evid. 403.

A. Cross-Examination of the Victim

In response to questioning on cross-examination, the victim denied that she ever
suspected Mr. McGowan of being unfaithful. Defense counsel asked the victim whether
she and Mr. McGowan had ever fought about other women. The victim said that while

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she and Mr. McGowan had engaged in fights, she denied that they had ever fought over
other women.

During a bench conference, defense counsel argued that the victim had opened the
door to questioning regarding a fight between the victim and Mr. McGowan that occurred
on February 25, 2009, because Mr. McGowan was using a cellular phone to contact other
women and the victim was paying the telephone bill. Defense counsel argued that the
evidence was relevant to the defense theory that the victim initiated sexual intercourse
with the Defendant in order to retaliate against Mr. McGowan for seeing other women.
Defense counsel further argued that the evidence would impeach the victim‟s testimony
that she and Mr. McGowan never fought over his relationships with other women.

During a hearing outside the presence of the jury, the victim testified that while
she and Mr. McGowan engaged in an altercation regarding a cellular telephone, she
denied that the altercation was over Mr. McGowan‟s relationship with other women. The
victim explained that Mr. McGowan had purchased a cellular phone for her, that he had
demanded that she return the telephone after he became mad at her, and that she refused.
The victim denied that the altercation was physical. She also denied that she told police
officers that she removed Mr. McGowan‟s name from the cellular phone contract because
she believed that he was using the cellular phone to contact other women.

The trial court found that the evidence was not relevant based on the victim‟s
testimony about the incident. The trial court allowed defense counsel to question the
victim further during the jury-out hearing about other incidents that had occurred between
the victim and Mr. McGowan.

In response to questioning by defense counsel, the victim denied that Mr.
McGowan was ever angry at her because he was suspicious about her engaging in
relationships with other men. The victim explained that while Mr. McGowan had talked
about it, he had never been upset to the point that he became physical with her. She
acknowledged that she had called the police on Mr. McGowan “a couple of times,” but
she denied that Mr. McGowan ever struck her. She said she called the police in order to
prevent a fight. With regard to the altercation over the cellular phone, the victim stated
that she called the police so that the officers would tell Mr. McGowan to return her
cellular telephone to her. She denied telling the police officers that Mr. McGowan had
engaged in violence toward her.

The victim acknowledged that she called the police in May 2010 and reported that
Mr. McGowan had sprayed her in the face with a water hose during an argument. She
denied that Mr. McGowan had punched her during the altercation. The victim did not
recall calling the police on June 21, 2012, and reporting that Mr. McGowan chased her
-27-
outside and struck her legs and arms with a stick. The victim denied calling the police on
Mr. McGowan because he became angry when the father of her first child contacted her.
She did not recall calling the police and reporting that Mr. McGowan scratched her face
and stomped her feet. The victim testified that she had called the police on Mr.
McGowan on several occasions but that she could not recall the exact dates. She said she
never saw the police reports generated as a result of her calls.

The victim was unaware of whether Mr. McGowan called the police on June 24,
2008, and reported that she had been calling and arguing with him and that she attempted
to run him over with a car. The victim did not consider them broken up on that date
because after they argued, they got back together a few hours later. She did not recall
Mr. McGowan kicking her out of their home on August 4, 2014. Defense counsel also
questioned the victim regarding three domestic violence charges that she received and
that were dismissed while the Defendant‟s rape case was pending. Mr. McGowan was
the victim in one of the charges.

Defense counsel argued that the victim opened the door to evidence of her and Mr.
McGowan‟s breakups by denying that they had ever broken up. The trial court noted that
the victim denied that she and Mr. McGowan argued over allegations that Mr. McGowan
was involved with other women. The trial court found that while the victim and Mr.
McGowan had a tumultuous relationship, such evidence was not relevant to the issues
raised in the case and was not proper impeachment. Defense counsel argued that the fact
that the victim called the police on Mr. McGowan on several occasions while denying
that any violence occurred established that the victim likely “must just call the police
very lightly” and “might call the police on … [the Defendant] for very little reason.” The
trial court found such evidence to be speculative.

On appeal, the Defendant argues that evidence of the tumultuous relationship
between the victim and Mr. McGowan was relevant to the defense theory that “the victim
either made up the story about the [D]efendant, her boyfriend‟s cousin, raping her in
order to retaliate against her boyfriend for seeing other women, or made up the story
because she had consensual sex with the defendant.” The victim, however, denied that
she ever fought with Mr. McGowan about other women or that he became violent with
her over suspicions that she was seeing other men. Evidence of disputes that occurred
years before or after the offense and that did not involve suspicions of infidelity were not
relevant to the issue of whether the victim fabricated the rape allegation. See Tenn. R.
Evid. 401. The trial court did not abuse its discretion in excluding the evidence.

B. Cross-Examination of Mr. McGowan

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 On cross-examination, Mr. McGowan testified that he and the victim had broken
up at times during the course of their relationship. Defense counsel then asked Mr.
McGowan whether he was in an exclusive relationship with the victim “at the time.” The
State objected based on relevance, and defense counsel argued that the evidence was
relevant to the defense theory that the victim fabricated her account of the rape due to
jealously prompted by Mr. McGowan‟s long history of infidelity.

During a jury-out hearing, defense counsel asked Mr. McGowan whether the
victim had called the police on February 25, 2009, and reported that he struck her face
after she tried to remove his name from her cellular telephone contract because she
believed he was using his cellular phone to contact other women. Mr. McGowan testified
that he did not recall the exact details of the situation. He later testified that they had
broken up at times during their five-year relationship prior to the rape. He said that if
they were “talking” to other people during the times that they were not together, they
were not cheating on each other. Mr. McGowan stated that prior to 2010, he was
involved with one other woman, but he was unsure when the relationship occurred.

The trial court allowed defense counsel to question Mr. McGowan about whether
he and the victim had broken up during the course of their five-year relationship prior to
the rape. The trial court found that there was no evidence that the victim and Mr.
McGowan had any issues between them involving other women and that the defense was
attempting to present the testimony for purposes of speculation.

On appeal, the Defendant argues that the evidence of Mr. McGowan‟s
relationships with other women was relevant to the defense theory that the victim
fabricated the rape due to jealous based upon Mr. McGowan‟s history of infidelity.
However, no evidence was presented establishing that Mr. McGowan had a history of
infidelity and that he and the victim had issues in their relationship as a result. Rather,
the evidence presented at the jury-out hearing only established that Mr. McGowan had a
relationship with another woman sometime during the five years prior to the rape and
while he and the victim were broken up. The trial court found that there was no evidence
that the victim and Mr. McGowan had disputes about his relationships with other women,
and that absent such evidence, the history of their relationship was not relevant to the
issues at trial. Such evidence was not relevant to the issues presented at the trial. See
Tenn. R. Evid. 401, 403. The trial court did not abuse its discretion in excluding the
evidence.

V. VICTIM IMPACT EVIDENCE

The Defendant argues that the trial court erred in admitting improper victim
impact testimony from the victim about how the rape had affected her. The State
-29-
responds that the victim‟s testimony was relevant to rebut the Defendant‟s theory that the
victim lied about the rape. We agree with the State.

On direct examination, the prosecutor asked the victim whether she was a
“different person” after the rape. The Defendant objected. The State argued that the
testimony was relevant in light of defense counsel‟s opening statement in which defense
counsel asserted that the victim continued to socialize with the Defendant and his family
after the incident as support for defense counsel‟s claim that the victim lied about being
raped. The trial court allowed the State to question the victim.

The victim then testified that her attitude and personality have changed since the
rape. She explained that she did not trust anyone, was unable to sleep at anyone else‟s
home, and did not socialize with anyone.

On redirect examination, the prosecutor asked the victim whether “it has been hard
on you to go through these five years” since the rape. Defense counsel objected and
argued that such testimony would be improper victim impact evidence. The State
responded that the testimony was relevant to counter the Defendant‟s claim that the
victim lied about the rape. The trial court found that the Defendant raised the issue of the
victim‟s motive and that any “post ramifications” to the victim‟s reporting of rape would
be relevant to the issue of motive.

The victim then testified that she had a close relationship with the family of Mr.
McGowan and the Defendant prior to the rape. She said that since reporting the rape, her
relationship with their family has been strained. She acknowledged that as a result, it
would be easy to drop the charges but that she instead chose to tell the truth.

During opening statements, defense counsel acknowledged that the Defendant had
consensual sexual intercourse with the victim and maintained that the victim lied about
the rape. Defense counsel raised an issue regarding the victim‟s motive for accusing the
Defendant of rape and stated that the victim and Mr. McGowan “lived next-door to
Prentis for a while after this happened.” The trial court correctly found that the effect of
the rape on the victim was relevant in light of the Defendant‟s challenges to the victim‟s
motive for claiming rape and the Defendant‟s claim that the victim continued to associate
with the Defendant following the rape. See Tenn. R. Evid. 401. Moreover, the probative
value of the evidence is not substantially outweighed by the danger of unfair prejudice.
See Tenn. R. Evid. 402. We conclude that the trial court did not abuse its discretion in
admitting the evidence.

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 VI. REBUTTAL TESTIMONY

The Defendant contends that the trial court erred in allowing the State to present
the rebuttal testimony of the victim and Mr. McGowan in violation of Tennessee Rule of
Evidence 615. The State responds that the trial court did not abuse its discretion in
allowing the victim and Mr. McGowan to testify in rebuttal and that any error was
harmless. We agree with the State.

Following the State‟s direct examination of Mr. McGowan on the second day of
trial, the parties approached the bench and began a discussion about Mr. Lee, who had
been subpoenaed by the Defendant to appear at trial. The prosecutor informed the trial
court that the State originally subpoenaed Mr. Lee to appear at a proceeding
approximately one year prior to the trial but that Mr. Lee failed to appear. The prosecutor
stated that the State attempted to subpoena and issued a material witness warrant and that
Mr. Lee was eventually arrested and then released. The prosecutor also stated that since
Mr. Lee‟s release, the State‟s attempts to locate, interview, and serve Mr. Lee with a
subpoena for the trial had been unsuccessful. The trial court agreed to order Mr. Lee not
to leave before speaking with the State‟s investigator. The parties then completed their
examination of Mr. McGowan at trial.

After Officer Walker, a crime scene officer, and Ms. Vincent testified the
following day, the parties approached the bench, and the prosecutor informed the trial
court that the State‟s investigator spoke to Mr. Lee during the prior evening and that
based on the interview, the State could not ethically call Mr. Lee as a witness at trial.
The prosecutor said Mr. Lee provided information about which the prosecutor was
previously unaware. The prosecutor stated that Tennessee Rule of Evidence 615 had
been invoked and that the victim and Mr. McGowan had remained in the courtroom after
they testified. The prosecutor also stated that based upon the information provided to
them by Mr. Lee, she anticipated that the State would need to call the victim and Mr.
McGowan as rebuttal witnesses. The prosecutor requested that she be allowed to call the
victim and Mr. McGowan as rebuttal witnesses and that the victim be allowed to remain
inside the courtroom for the remainder of the trial due to her status as the victim.

The trial court allowed the State to call the victim and Mr. McGowan as rebuttal
witnesses. The trial court found that Mr. Lee had not been cooperative with the State,
had been avoiding service by the State, and had a warrant for his arrest pending for
almost one year. The trial court found no fault with the State based upon Mr. Lee‟s
actions. The trial court required Mr. McGowan to remain outside of the courtroom for
the remainder of the trial. However, the trial court found that the victim had a
constitutional right to be present at trial and allowed her to remain in the courtroom for
the remainder of the trial.
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 Both the victim and Mr. McGowan testified in rebuttal regarding Mr. Lee‟s
testimony that prior to the incident, the victim told Mr. Lee, the Defendant, Ashley
Campbell, and Mr. McGowan that she had a friend who falsely accused a person of rape
and received $10,000 from the victim‟s compensation fund. The victim denied ever
making the statement, and Mr. McGowan denied ever hearing the victim make the
statement.

Tennessee Rule of Evidence 615 provides:

At the request of a party the court shall order witnesses, including rebuttal
witnesses, excluded at trial or other adjudicatory hearing. In the court‟s
discretion, the requested sequestration may be effective before voir dire, but
in any event shall be effective before opening statements. The court shall
order all persons not to disclose by any means to excluded witnesses any
live trial testimony or exhibits created in the courtroom by a witness. This
rule does not authorize exclusion of (1) a party who is a natural person, or
(2) a person designated by counsel for a party that is not a natural person, or
(3) a person whose presence is shown by a party to be essential to the
presentation of the party‟s cause. This rule does not forbid testimony of a
witness called at the rebuttal stage of a hearing if, in the court‟s discretion,
counsel is genuinely surprised and demonstrates a need for rebuttal
testimony from an unsequestered witness.

Rule 615 “codifies the long-established practice of sequestering witnesses during a trial
so that they may not hear one another testify prior to testifying themselves.” State v.
Jordan, 325 S.W.3d 1, 39 (Tenn. 2010).

The trial court has “wide discretion in determining whether to impose the sanction
of excluding the evidence of the witness suspected of having violated the rule.” State v.
Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992) (citing State v. Moffett, 729
S.W.2d 679, 681 (Tenn. Crim. App. 1986)); see Jordan, 325 S.W.3d at 42. Less severe
sanctions include “allowing the offender to testify but subjecting her to cross-
examination about her violation, the testimony she heard, and the impact it may have had
on her testimony.” Jordan, 325 S.W.3d at 42 (citing Anthony, 836 S.W.2d at 605. The
jury also may “„be instructed to consider the violation of the sequestration order in
assessing [the credibility of] the witnesses‟ testimony.‟” Id. (quoting Anthony, 836
S.W.2d at 605).

In order to present the victim and Mr. McGowan as rebuttal witnesses after they
remained in the courtroom and heard testimony from other witnesses, the State was
required to establish both “genuine surprise and demonstrable need.” Tenn. R. Evid. 615
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Advisory Comm‟n Cmts. to 1997 Amend. The appellate record includes an extensive
discussion between the parties and the State regarding the State‟s failed efforts to
interview and subpoena Mr. Lee. While evidence presented at trial established that Mr.
Lee had been interviewed previously by the prosecutor and the State‟s investigator, Mr.
Lee stopped cooperating with the State and did not attend a court setting the prior year in
response to a subpoena issued by the State. The State‟s efforts for approximately one
year prior to trial to locate Mr. Lee, interview him, and serve him with a subpoena were
unsuccessful. The State‟s first opportunity to interview Mr. Lee since he had stopped
cooperating was not until after the victim and Mr. McGowan had testified. During the
interview, Mr. Lee provided information that he had not previously disclosed to the State.
Based upon these circumstances, we conclude that the State established “genuine
surprise.”

While the State did not describe the newly discovered information to the trial court
during the jury-out hearing, the State‟s cross-examination of Mr. Lee and Mr. Merritt‟s
testimony at trial established that the newly discovered information was Mr. Lee‟s claim
that shortly before the incident, the victim had told him, Mr. McGowan, the Defendant,
and Ms. Campbell that she knew a woman who falsely accused someone of rape and
received $10,000 from the victim‟s compensation fund. We conclude that the State
demonstrated a need to recall the victim and Mr. McGowan to rebut Mr. Lee‟s claim.

The trial court required that Mr. McGowan remain outside the courtroom for the
remainder of the trial. As a result, Mr. McGowan was not present when Mr. Lee
testified. The trial court, however, found that the victim had a constitutional right to be
present throughout the trial and allowed the victim to stay in the courtroom for the
remainder of the trial. See Tenn. Const. art. I, § 35, item 3 (providing crime victims with
the right “to be present at all proceedings where the defendant has the right to be
present”). The determination of whether article I, section 35 of the Tennessee
Constitution supersedes the rule of sequestration as it relates to the victims of crime is
unsettled. See State v. Elkins, 83 S.W.3d 706, 713 (Tenn. 2002) (declining to address the
issue).

Even if the trial court erred, however, any error is harmless. See id. (concluding
that “violations of „the Rule‟ are subject to harmless error analysis”). Because Mr.
McGowan was not present in the courtroom when Mr. Lee testified, there was no risk
that Mr. McGowan tailored his testimony in rebuttal based upon Mr. Lee‟s testimony,
and the purposes of Rule 615 were not thwarted. When the victim testified in rebuttal,
defense counsel questioned her on cross-examination regarding the fact that she remained
in the courtroom throughout the trial and heard Mr. Lee‟s allegations, and the victim
denied tailoring her testimony based upon Mr. Lee‟s testimony. Moreover, evidence was
presented throughout the trial regarding the sources from which the victim obtained
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information of the victim‟s compensation fund after she reported the rape. When the
victim testified during the State‟s case-in-chief, she denied on cross-examination that she
was aware of the victim‟s compensation fund before April 2010, that she spoke to Mr.
Lee about the fund, or that she had spoken about a friend who received $10,000 for
claiming that she was raped. The victim also testified that she first learned about the
existence of the victim‟s compensation fund at the Memphis Sexual Assault Resource
Center. The victim did not seek compensation soon after reporting the rape but waited
approximately nine months after the rape to file an application. The medical examination
that the victim underwent cost $750. The evidence established that the victim could have
declined to pursue the charges against the Defendant once she received the money but,
instead, chose to continue pursuing the charges for several years after receiving
compensation. In light of the victim‟s testimony during the State‟s case-in-chief, Mr.
McGowan‟s absence from the courtroom during Mr. Lee‟s testimony, and other evidence
presented at trial countering the Defendant‟s theory that the victim falsely accused him of
rape in order to receive funds from the victim‟s compensation fund, any error by the trial
court is harmless.

VII. LESSER-INCLUDED OFFENSES

The Defendant asserts that the trial court erred in failing to instruct the jury on
assault as a lesser-included offense of rape. Defense counsel filed a motion requesting
that the trial court instruct the jury on “Assault-Bodily Harm” and “Assault-Offensive
Contact” as lesser-included offenses of rape. At trial, the trial court analyzed the offenses
of assault by causing bodily injury, assault by causing another to reasonably fear
imminent bodily injury, and assault through extremely offensive or provocative contact.
See T.C.A. § 39-13-101(a) (Supp. 2009). The trial court concluded that the offenses were
not lesser-included offenses of rape.

In State v. Burns, the Tennessee Supreme Court adopted the following definition
of a lesser-included offense:

An offense is a lesser-included offense if:

(a) all of its statutory elements are included within the statutory elements of
the offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it
contains a statutory element or elements establishing

(1) a different mental state indicating a lesser kind of culpability;
and/or
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 (2) a less serious harm or risk of harm to the same person, property
or public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense that otherwise
meets the definition of lesser-included offense in part (a) or (b); or

(2) an attempt to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part (a)
or (b); or

(3) solicitation to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part (a)
or (b).

State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). An offense is also a lesser-included
offense if expressly designated by the General Assembly. State v. Howard, No. E2014-
01510-SC-R11-CD, __ S.W.3d __, 2016 WL 5933430, at *4 (Tenn. 2016) (citations
omitted).

In 2009, Tennessee Code Annotated section 40-18-110 was amended to define
lesser-included offenses in pertinent part as follows:

(f) An offense is a lesser included offense if:

(1) All of its statutory elements are included within the statutory elements
of the offense charged;

(2) The offense is facilitation of the offense charged or of an offense that
otherwise meets the definition of lesser included offense in subdivision
(f)(1);

(3) The offense is an attempt to commit the offense charged or an offense
that otherwise meets the definition of lesser included offense in subdivision
(f)(1); or

(4) The offense is solicitation to commit the offense charged or an offense
that otherwise meets the definition of lesser included offense in subdivision
(f)(1).
-35-
 ….

(g)(4) Sexual battery and sexual battery by an authority figures are lesser
included offenses of rape and aggravated rape.

T.C.A. § 40-18-110(f), (g)(4) (Supp. 2009). The Tennessee Supreme Court recently held
in defining lesser-included offenses in section 40-18-110, the General Assembly did not
abrogate part (b) of Burns. Howard, __ S.W.3d at __, 2016 WL 5933430, at *9. Thus, in
addition to the definitions of lesser-included offenses in section 40-18-110(f), an offense
is a lesser-included offense if

the elements of the lesser-included offense [are] included in the elements of
the charged offense, except to the extent that the lesser-included offense
“contains a statutory element or elements establishing (1) a different mental
state indicating a lesser kind of culpability; and/or (2) a less serious risk of
harm to the person, property or public interest.”

Id. at *10 (quoting Burns, 6 S.W.3d at 466-67).

The trial court must instruct the jury on a lesser-included offense if the trial court
concludes that “any evidence as to a lesser-included offense exists that reasonable minds
could accept and that the evidence, viewed liberally in the light most favorable to the
lesser-included offense, is legally sufficient to support a conviction.” Id. at *4 (citing
Burns, 6 S.W.3d at 469) (emphasis in original). The issue of whether the trial court
properly instructed the jury regarding lesser-included offenses is a mixed question of law
and fact, which this court reviews de novo with no presumption of correctness. Id. at *3.

This court has recognized that assault through extremely offensive or provocative
contact is a lesser-included offense of rape by force or coercion. See State v. David Gene
Hooper, No. E2004-01053-CCA-R3-CD, 2005 WL 1981789, at *13 (Tenn. Crim. App.
Aug. 16, 2005); see also State v. Michael Elvis Green, No. W2001-00455-CCA-R3-CD,
2002 WL 1482680, at *6 (Tenn. Crim. App. Mar. 8, 2002) (stating that “it is arguable
that Class B misdemeanor assault is a lesser-included offense of rape” under part (b) of
Burns). While the Defendant was not convicted of rape by force or coercion, this court
also has recognized that assault through extremely offensive or provocative contact is a
lesser-included offense of rape without consent. See State v. Haskel D. Finch, No.
M2001-00340-CCA-R3-CD, 2002 WL 1204931, at *14-15 (Tenn. Crim. App. June 5,
2002).

Even if the trial court erred in not charging the jury with any of the assault
offenses as lesser-included offenses of rape without consent and rape of a mentally
-36-
defective, mentally incapacitated, or physically helpless victim, we conclude that any
error is harmless beyond a reasonable doubt. An error in failing to instruct the jury on a
lesser-included offense is harmless beyond a reasonable doubt if “the jury, by finding the
defendant guilty of the highest offense to the exclusion of the immediately lesser offense,
necessarily rejected all other lesser-included offenses.” State v. Allen, 69 S.W.3d 181,
189 (Tenn. 2002) (citing State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998)). The trial
court instructed the jury at trial on attempted rape, sexual battery, and attempted sexual
battery as lesser-included offenses of the rape charges. Sexual battery is a Class E
felony, while assault is either a Class A or a Class B misdemeanor. See T.C.A. §§ 39-13-
101(b)(1) (Supp. 2009); 39-13-505(c). By finding the Defendant guilty on the greater
offense of rape to the exclusion of the lesser-included offense of sexual battery, which is
a higher grade of offense than assault, the jury necessarily rejected all other lesser-
included offenses, including assault. Accordingly, any error is harmless beyond a
reasonable doubt.

VII. SENTENCING

The Defendant challenges his sentences as excessive. Specifically, he argues that
the trial court misapplied as an enhancement factor that the victim was “particularly
vulnerable because of age or physical or mental disability.” T.C.A. § 40-35-114(4). The
State responds that the trial court did not abuse its discretion in sentencing the Defendant.
We agree with the State.
A. Sentencing Hearing

During the sentencing hearing, the State entered the Defendant‟s presentence
report and his juvenile court history packet as exhibits. According to the Defendant‟s
presentence report, he had prior convictions for driving on a suspended license, evading
arrest, theft of property valued more than $500, and reckless endangerment.

The Defendant presented the testimony of Ms. Amanda Garey, Mr. Willie Garey,
Ms. Valerie Lee, Ms. Ranisha Parker, and Ms. Marshika Redmond. Ms. Garey, the
Defendant‟s older sister, testified that she and the Defendant were close throughout their
childhood. She said the Defendant did not get into trouble when he was younger and did
well in school. She described their family as close-knit and stated that the Defendant has
maintained a relationship with his four children. Ms. Garey stated that while the
Defendant had difficulty finding employment while the charges were pending, he made
every effort to provide for his children, including cutting grass and working with his
father. The Defendant also assisted his aunt, who has kidney disease, by driving her to
doctor appointments and performing chores at her home.

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 Ms. Garey expressed her belief that the Defendant did not deserve a twelve-year
sentence and maintained that the Defendant was not a threat to society. She said that
when she learned that the Defendant was charged with rape, she “couldn‟t believe it.”

Mr. Garey, the Defendant‟s father, testified that the Defendant had been assisting
him in painting and performing yard work and “concrete work.” The Defendant also had
been living with him. Mr. Garey said he believed that the Defendant was going to prison
“for nothing” and that the Defendant was innocent of the offense. Mr. Garey said the
Defendant was not a threat to anyone.

Ms. Lee testified that she and the Defendant grew up in the same household and
that they have maintained a close relationship. Ms. Lee said she believed that the
Defendant was innocent of the offense and that his imprisonment would not benefit him
or society.

Ms. Parker, the Defendant‟s cousin, testified that they grew up together and
maintained a close relationship. She described the Defendant as a “good person” and
said he was not a violent person. She believed that the Defendant did not commit the
offense and should receive the minimum sentence.

Ms. Redmond, the Defendant‟s “cousin in law,” testified that she had known the
Defendant for five or six years and that he had assisted her in caring for her children. She
said the Defendant was not a violent or dangerous person. She did not believe that the
Defendant committed the offense or that he received a fair trial. She believed that the
Defendant‟s children would suffer if he was sent to prison for a long period of time.

In imposing a sentence, the trial court considered the sentencing factors in
Tennessee Code Annotated sections 40-35-102 and 40-35-103, the presentence report, the
testimony of the witnesses, and the arguments of the parties. The trial court merged the
conviction for rape of an incapacitated person into the conviction of rape without consent,
noting that they were alternative theories of the same offense.

The trial court found as an enhancement factor that the Defendant had “a previous
history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range.” See T.C.A. § 40-35-114(1). The trial court also applied
as an enhancement factor that, as a juvenile, the Defendant was adjudicated to have
committed a delinquent act that would have constituted a felony if committed by an adult.
See id. § 40-35-114(16). The trial court gave the enhancement factor no weight, noting
that the juvenile offense occurred approximately twenty years ago and that the court
already had applied the prior criminal history enhancement factor. The trial court stated
that it was “somewhat inclined, although somewhat reluctant” to consider as an
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enhancement factor that the Defendant abused a position of private trust. See id. § 40-35-
114(14). The court noted that the victim was the girlfriend of the Defendant‟s cousin,
had been living temporarily at the Defendant‟s home, and should have been able to feel
safe under the circumstances. The trial court did not place “a great deal of emphasis” on
the enhancement factor but believed the factor was “worth noting in passing.”

The trial court applied as mitigating factors (1) that the Defendant‟s “criminal
conduct neither caused nor threatened serious bodily injury”; (2) that the Defendant,
“although guilty of the crime, committed the offense under such unusual circumstances
that it is unlikely that a sustained intent to violate the law motivated the criminal
conduct”; and (3) residual doubt. See id. § 40-35-113(1), (11), (13). The trial court
described the circumstances of the offense as “somewhat unique” and said that based on
the Defendant‟s criminal history and the circumstance of the offense, it could not find
that there was likely a sustained intent to violate the law.

The trial court found that confinement was necessary to avoid depreciating the
seriousness of the offense. See id. § 40-35-103(1)(B). The trial court stated that the
Defendant took advantage of the victim while she was in “an extremely vulnerable and
intoxicated state.” The trial court also stated that even if it accepted the Defendant‟s
claim that the victim “enticed him into having sex” while in a “drunken stupor,” the
Defendant acted in a reckless manner and took advantage of the victim. The trial court
also found that confinement was necessary to deter others likely to commit similar
offenses. See id. The trial court then sentenced the Defendant to ten years to be served in
confinement at 100 percent.

B. Analysis

This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range sentences
that reflect a proper application of the purposes and principles of our Sentencing Act.”
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The court will uphold the sentence “so
long as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-
10. Even if the trial court “recognizes and enunciates several applicable mitigating
factors, it does not abuse its discretion if it does not reduce the sentence from the
maximum on the basis of those factors.” State v. Carter, 254 S.W.3d 335, 345 (Tenn.
2008). The trial court is “to be guided by—but not bound by—any applicable
enhancement or mitigating factors when adjusting the length of a sentence.” Bise, 380
S.W.3d at 706. Further, “a trial court‟s misapplication of an enhancement or mitigating
factor does not invalidate the sentence imposed unless the trial court wholly departed
from the 1989 Act, as amended in 2005.” Id. A sentence imposed by the trial court that
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is within the appropriate range should be upheld “[s]o long as there are other reasons
consistent with the purposes and principles of sentencing, as provided by statute.” Id.
The appealing party bears the burden of proving that the sentence was improper. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the sentence, the trial court must consider: (1) any evidence
received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the applicable mitigating and enhancement factors; (6) any statistical
information provided by the administrative office of the courts as to sentencing practices
for similar offenses in Tennessee; and (7) any statement the defendant wishes to make in
the defendant‟s own behalf about sentencing. T.C.A. § 40-35-210(b). “The sentence
imposed should be the least severe measure necessary to achieve the purposes for which
the sentence is imposed,” and “[t]he potential or lack of potential for the rehabilitation or
treatment of the defendant should be considered in determining the sentence alternative
or length of a term to be imposed.” Id. § 40-35-103(4), (5).

The Defendant maintains that the trial court erred in applying as an enhancement
factor that the victim was “particularly vulnerable because of age or physical or mental
disability.” Id. § 40-35-114(4). The trial court, however, did not apply the victim‟s
vulnerability as an enhancement factor. Rather, the trial court discussed the victim‟s
vulnerability in finding that confinement was necessary to avoid depreciating the
seriousness of the offense and to deter others likely to commit similar offenses. See id. §
40-35-103(1)(B).

The record reflects that the trial court considered the purposes and principles of
the Sentencing Act when sentencing the Defendant to a within-range sentence for a
Range I offender. The record also supports the findings of the trial court regarding the
enhancement factors. As a result, we conclude that the trial court did not abuse its
discretion in sentencing the Defendant, and he is not entitled to relief regarding this issue.

VIII. CUMULATIVE ERROR

The Defendant asserts that he is entitled to a new trial based upon cumulative
error. The doctrine of cumulative error recognizes that “there may be multiple errors
committed in trial proceedings, each of which in isolation constitutes mere harmless
error, but which when aggregated, have a cumulative effect on the proceedings so great
as to require reversal in order to preserve a defendant's right to a fair trial.” State v.
Hester, 324 S.W.3d 1, 76 (Tenn. 2010). Reversal for cumulative error functions to
protect the defendant‟s constitutional right to a fair trial, but such reversals are rare. State
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v. Herron, 461 S.W.3d 890, 910 (Tenn. 2015). The doctrine of cumulative error only
applies when there has been more than one error committed during trial. Hester, 324
S.W.3d at 77. The appellate court must assess whether the errors, each of which may be
harmless in isolation, function in the aggregate to deny the defendant the right to a fair
trial. Id. at 76. Such claims are sui generis and must be assessed against the background
of the whole case, evaluating the nature and number of errors, their relationship with one
another and combined effect, the trial court's remedial efforts, the strength of the State‟s
case, and the length of the proceedings. Herron, 461 S.W.3d at 910 (citing Hester, 324
S.W.3d at 77). We conclude that the aggregate of any errors committed during trial were
not such as to deny the Defendant his right to a fair trial, and we accordingly deny relief.

CONCLUSION

Based on the foregoing analysis, we affirm the judgments of the trial court.

____________________________________
JOHN EVERETT WILLIAMS, JUDGE

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