IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 7, 2019

STATE OF TENNESSEE v. RICKY BOYD

Appeal from the Criminal Court for Shelby County

No. 15-05652 Lee V. Coffee, Judge

___________________________________

No. W2018-00546-CCA-R3-CD

___________________________________

A Shelby County Criminal Court Jury convicted the Appellant, Ricky Boyd, of attempted 

second degree murder, aggravated rape, and rape. At the sentencing hearing, the trial court 

merged the aggravated rape and rape convictions and imposed a total effective sentence of 

thirty-seven years in the Tennessee Department of Correction. On appeal, the Appellant 

contends that (1) the trial court erred by denying his motion to dismiss the indictment; (2) 

the trial court erred by granting the State’s motion to quash the Appellant’s subpoena duces 

tecum seeking “the District Attorney’s records concerning the time that [the Appellant’s] 

case was presented” to the grand jury; (3) the trial court erred by denying the Appellant’s

request to review the victim’s mental health records; (4) the trial court erred by refusing to 

allow defense counsel to cross-examine the victim regarding her history of audio and visual 

hallucinations and her refusal to take medication to treat her condition; (5) the trial court 

erred by refusing to dismiss the case or give a Ferguson instruction based upon the State’s 

failure to preserve evidence that might play a significant role in the defense; (6) the State’s 

evidence was not sufficient to sustain his convictions; and (7) “the trial court erred by 

considering a prior charged offense during its deliberations as to sentencing even though 

the [Appellant] [pled] guilty to a lesser charge of aggravated assault and no factual basis 

surrounding the negotiated plea [was] entered into evidence.” Upon review, we find no 

reversible error and affirm the judgments of the trial court. 

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Stephen Bush and Phyllis Aluko (on appeal), Memphis, Tennessee; Jessica L. Gillentine

(on appeal), Bartlett, Tennessee; and Jacinta Hall and Samuel Christian (at trial), Memphis, 

Tennessee, for the Appellant, Ricky Boyd.

11/19/2020
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Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Jessica Banti, Gavin 

Smith, and Lessie Rainey, Assistant District Attorneys General, for the Appellee, State of 

Tennessee.

OPINION

I. Factual Background

The Appellant was indicted on charges of attempted first degree murder, aggravated 

rape resulting in bodily injury, and aggravated rape by use of force and coercion and by 

use of a deadly weapon. 

At trial, the victim testified that on May 2, 2014, she was living alone in a house on 

Willie Mitchell Boulevard in Memphis. In the afternoon, she walked to a nearby store and 

bought a bag of chips and a drink. She returned home and sat outside on the porch to eat. 

She was wearing white shorts, a white t-shirt, and gold shoes with high heels. She went 

inside when it started getting dark. 

The victim said that around 5:00 or 6:00 p.m., she heard a knock on the front door. 

She was not expecting anyone but opened the wooden front door and looked through the

glass storm door to see who was knocking. She saw a “young dude” whom she had never 

seen before that night. The man was taller than the victim, “brown skinned,” and had “short 

dreads.” He was wearing a black t-shirt, black pants, and black shoes. The man asked her 

to open the door so that he could tell her something. The man told her that someone was 

inside her house who wanted to “do something to [her].” The victim initially refused to 

open the door, but after much coaxing by the man, she stepped onto the front porch and 

walked down the porch steps. 

The victim said that the man stepped close to her and put his face within two inches 

of her face. He repeated that someone was inside her house and “wanted to get her.” He 

said, “Don’t think it’s me ‘cause it will probably be my twin.” The man’s voice was raised 

as if he were angry. The victim asked, “What twin?” The man hit her in her mouth with 

his fist and “knocked [her] teeth out.” She fell to the ground but immediately stood up to 

see where the man was. She saw him run “around [her] house somewhere” but could not 

see exactly where he went. She walked toward the front of her house and looked around 

because she was afraid to go into the house. She said, “I thought something bad [was] 

going to really happen to me.” She heard footsteps behind her and closed her eyes because 

she was scared. She said someone “snuck up” behind her and “did some terrible things to 

[her].” 

The victim said she “ended up blanked out, knocked out cold.” The next thing she 

remembered was waking up in the hospital after surgery. She was bruised, her mouth was 
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swollen, and she had stitches on her neck near her jaw. The police visited her during her 

hospitalization, showed her pages of photographs, and asked if she recognized anyone in 

the photographs. She was unable to identify the man who came to her house from the 

photographs. The victim said she described the man to the police. She and the police made 

a computer-generated drawing that the victim said almost looked like the person who came 

to her house. She did not recall how long she was hospitalized. 

The victim said that when the man spoke to her in her yard, he said a name, but she 

did not hear it “clear enough.” She thought the name started with the letter M. The State 

asked the victim to look at the Appellant in court and say whether he was the man with 

whom she spoke in her yard. The victim said the Appellant was not the man who lured her 

into the yard. The victim identified photographs of her underwear and shoes that were 

taken at the crime scene. 

On cross-examination, the victim acknowledged that the incident occurred over 

three years before trial and that she had problems remembering everything that happened 

“because [she] was knocked out cold.” The victim said that after she awoke in the hospital, 

she drew a picture of “the dude who attacked [her].” She explained that she was an artist 

and could draw. The police later used the drawing to make a computer-generated image 

of the man. The victim was asked if she recalled giving the police the name “Marcus, or 

Marius, or Maurice.” The victim initially stated, “Marcus, I think.” She then said she 

remembered telling the police, “Something like that. Maurice. . . . Almost like the U is

the c-u-s.” 

The victim acknowledged that while she was hospitalized, she was given a lot of 

pain medication. She had difficulty talking because she was hoarse, her mouth was sore, 

and she had a tube down her throat. She did not recall telling anyone that she had been 

raped, saying, “I didn’t even know I was raped.” 

The victim denied having “developmental delays.” She recalled speaking with a 

psychiatrist in the hospital and telling the psychiatrist “about some of the problems [she 

was] having.” She did not remember being in a grassy lot down the street from her house. 

On redirect examination, the victim said the man who came to her house had 

“[b]rown skin, almost like dark skin.” She maintained that she had told the police the man 

said he had a twin brother but that the police did not hear her because she “was talking real 

low.” The victim explained that the name Maurice or Marcus referred to the man’s brother. 

Jarred Lucius testified that on May 2, 2014, he was an officer with the Memphis 

Police Department. He was dispatched to the area of Willie Mitchell Boulevard and Olive 

Avenue in response to a call about “a woman screaming for help.” As he drove through 

the area, he did not hear anyone calling for help. He used his public announcement (PA) 

system to identify himself and advise that anyone who needed help should let him know. 
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Officer Lucius stopped and exited his vehicle. He heard rustling and saw the victim 

walking out of the woods. The victim “looked really bad off.” She had “blood oozing 

from the sides of her mouth,” and she was crying and shaking. Her clothes were 

disheveled, she had difficulty walking, and leaves were stuck in her long hair and all over 

her clothes. She was not wearing shoes, “and her feet looked like they were all messed up 

on the bottoms.” The victim tried to talk but could only make “gurgling” sounds as if 

something were “lodged in her mouth.” Officer Lucius asked the victim what had 

happened to her, and the victim pointed at her mouth and “at her private area.” Officer 

Lucius stated that the victim “finally said, ‘He raped me,’ but it came out more with a W 

instead of an R.” Officer Lucius asked if the victim had been raped, and she nodded her 

head and seemed excited that he understood her. Officer Lucius called paramedics, who 

responded to the scene and eventually transported the victim to the hospital. 

Officer Lucius said that the medical staff at the hospital discerned that the victim 

was complaining about her mouth. They looked inside her mouth and saw a large brown 

“stick sticking out of her esophagus at the base of her mouth.” They immediately 

performed surgery to remove the stick. After the surgery, the doctors put the stick in a 

Ziploc bag and gave it to Officer Lucius. Officer Lucius later gave the stick to the crime 

scene investigators. 

On cross-examination, Officer Lucius said that he responded to the scene at 

approximately 3:30 or 4:00 a.m. Officer Lucius could not recall if the victim had scratches 

on her body. Officer Lucius said that he did not come into contact with any persons of 

interest but acknowledged that a police report reflected that another officer later came into 

contact with a man named Salvador Taylor. 

Memphis Police Officer Roderick Knight testified that around 4:00 a.m. on May 3, 

2014, he went to an open field in the area of Willie Mitchell Boulevard and Olive Avenue 

in response to a 911 call. He and Officers Gerard and Lawson parked their patrol cars and 

rolled down their windows. The officers heard a faint noise, and Officer Knight used his 

PA system to encourage anyone who needed help to approach the officers, but he received 

no response. The officers drove south on Olive Avenue, and Officer Lawson heard another 

noise and stopped his patrol car. He saw someone, exited his car, and ran after the person. 

Officer Knight joined the pursuit even though he could see only the silhouette of the person 

he was chasing. Officer Knight estimated that twenty or twenty-five minutes elapsed 

between the 911 call and the pursuit. Officer Knight lost sight of the person and returned 

to his patrol car. The paramedics arrived at the scene and advised him of the victim’s 

condition. 

Crime Scene Officer Christopher Sanders testified that he was dispatched to the area 

of Willie Mitchell Boulevard and Olive Avenue. He described the scene as a “grassy 

vacant lot” with “a couple of buildings to the south, some houses and buildings to the north, 

and a vacant area to the west.” At the scene, Officer Sanders took photographs of a pair of 
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women’s underwear, a woman’s gold shoe, a branch or stick stained with a dry red 

substance that appeared to be blood, and an indentation or tracks in the ground. 

On cross-examination, Officer Sanders said that he photographed the stick, but he 

did not test it for blood and did not know “for certain” the red substance was blood. He 

used an alternate light source in the area where the incident could have occurred but did 

not detect any “possible DNA” or other fluids. 

Theodore Novak, IV, a firefighter paramedic with the Memphis Fire Department, 

testified that he was dispatched to the intersection of Willie Mitchell Boulevard and Olive 

Avenue in response to a “sexual assault call.” At the scene, he and another paramedic, 

Christopher Brumley, saw the victim leaning against the back of a patrol car. The victim 

appeared to be “in bad shape.” Novak approached the victim and noticed a lot of blood 

coming from her mouth. Her hair and clothes “looked like she had been in an altercation.” 

The victim told Novak, “He tried to kill me.” The victim’s airway was not obstructed, but 

her words were difficult to understand because of the trauma to her mouth. 

Novak said that with assistance, the victim was able to walk to the ambulance. 

Novak said the victim appeared to be missing part of her tongue, and she was reluctant to 

open her mouth. A “C-collar” was placed around the victim’s neck to immobilize her head 

and prevent potential injury to her spine. Before putting the collar on, the paramedics 

questioned the victim about her injuries. The victim said that she had been raped, beaten, 

and that, “He tried to kill me.” After the collar was on, the victim was unable to open her 

mouth fully, and her speech was further impaired. The paramedics had the victim remain 

seated upright because she was bleeding profusely. The police informed the paramedics 

that they had found a stick that was approximately one foot long and “appeared to have 

blood or bodily fluids on it.” The paramedics checked the victim for additional trauma but 

found no other injuries. The paramedics asked the victim how much pain she was 

experiencing, and she indicated “ten out of ten.” 

Novak said one of the nurses at the hospital convinced the victim to open her mouth. 

The nurse saw a large stick in the back of the victim’s mouth. Novak saw the nurse pull 

out part of the stick, which was approximately four inches long. The victim was taken into 

surgery immediately to have the remaining part of the stick removed. 

On cross-examination, Novak agreed that the victim’s only complaint was her 

mouth and that he noticed no other trauma. He said that when the victim was standing 

against the patrol car at the scene, she told the paramedics “that she had been raped and 

beaten fifteen minutes ago.” 

Memphis Police Sergeant Tim Murphy testified that he responded to a call regarding 

an incident at a vacant lot at the intersection of Willie Mitchell Boulevard and Olive 

Avenue. The crime scene unit was at the scene when he arrived. During a search of the 
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scene, the police found a pair of women’s underwear, a pair of gold-colored earrings, a pair 

of sunglasses, three keys, a black ball cap, a piece of a black hair weave, and two goldcolored shoes. The police also found a stick that was “maybe six to eight inches, ten inches 

long, maybe a little bit thicker than your thumb or about the size of your thumb. . . . There 

was a little bit of blood on the end of it.” 

Sergeant Murphy said they knocked on doors in the area and eventually found 

someone who had heard a woman yelling. Sergeant Murphy also learned that Officers 

Gerard and Lawson had seen a suspect running in the area. About 6:00 p.m., Salvador 

Taylor “flagged down” the officers. Taylor told the officers that he had been assaulted by 

a black male “near Lathan and South Parkway.” Taylor had scratches on his neck and 

knuckles, and the officers took his information. 

On cross-examination, Sergeant Murphy said that the officers who saw Taylor said 

that he matched the description of the perpetrator and had scratches on his knuckles and 

his neck. On redirect examination, Sergeant Murphy said that the only description the 

police had of the perpetrator was that he was “an African-American male in dark clothes.” 

Judy Pinson, an expert in sexual assault examination, testified that in May 2014, she 

was working as a sexual assault nurse examiner at the Memphis Sexual Resource Center. 

Pinson went to the hospital and spoke with the officers who were there with the victim. 

The officers reported that they responded to a disturbance call and found the victim, who 

was not wearing pants or underwear, in a wooded area. The victim told the officers that

she had been raped. They also advised Pinson that a stick was lodged in the victim’s mouth 

and throat. A nurse in the trauma unit told Pinson “they thought [the victim] was dying 

when she came in.” 

Pinson attempted to speak with the victim; however, the victim could not respond 

because she was intubated and was medicated. The victim’s mother and aunt gave consent 

for an examination and advised Pinson that the victim “was mildly developmentally 

delayed.” 

At the beginning of the examination, Pinson asked the victim if she had been raped, 

and the victim responded by nodding. The victim was lying in bed and was wearing a 

cervical collar. Her hair was “very mussed” and “had a lot of leaves in it.” Pinson took 

photographs of the victim, which were shown to the jury. 

Pinson said that during the examination, she saw a blade of grass on the victim’s 

external genitalia. Pinson did not see any cuts, abrasions, or bruising, which she explained 

was not unusual in a rape case. Pinson swabbed the victim’s vaginal, vulva, and anal areas 

and put the swabs in a rape kit. 
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On cross-examination, Pinson agreed that her findings were also consistent with 

someone who had consensual sex. 

Dr. Cory Evans testified that he was a trauma surgeon and that he saw the victim 

when she arrived at the hospital in critical condition. The victim had a stick lodged in her 

throat and several small cuts covering her body. The victim was taken into an operating 

room, and the stick was removed. Dr. Evans said that the stick had injured the roof of the 

victim’s mouth, her tongue, and the area below her tongue. 

Dr. Evans said the victim was sedated and intubated for five days. Dr. Evans 

explained that the sedation could have resulted in retrograde amnesia which could have 

caused the victim to forget the trauma. After the breathing tube was removed, the victim 

developed an abscess in the back of her throat, and it had to be surgically drained. The 

victim was discharged from the hospital on May 14. 

Dr. Evans said that if the stick had been removed from the victim’s throat outside 

of the hospital, her airway could have swollen shut and left her unable to breathe. Dr. 

Evans said the stick was lodged near the victim’s carotid arteries, the main blood vessels 

to the brain. Dr. Evans said that the “stick had actually penetrated the throat tissue, the 

skin of the throat, and went back into what’s behind the skin.” 

On cross-examination, Dr. Evans said that the victim was seen by a hospital 

psychiatrist. Dr. Evans had reviewed the records pertaining to the victim’s hospitalization. 

The records reflected that the victim’s mother reported that the victim “‘has been to MMHI 

[Memphis Mental Health Institute] times two. Last time was approximately one year ago 

for auditory and visual hallucinations.’” The record also reflected that the victim was 

placed on medication for the hallucinations but that she stopped taking the medication. The 

victim’s mother explained, “[W]e did not want her on any crazy-ass pills.” 

Special Agent Donna Nelson with the Tennessee Bureau of Investigation (TBI) 

Crime Laboratory testified that she received the rape kit containing the victim’s vaginal, 

vulva, and anal swabs. She also received underwear and two sticks. 

Special Agent Nelson said that she tested the vaginal and anal swabs. She did not 

test the vulva swabs because they were collected very close to the area where the vaginal 

swab was collected. Special Agent Nelson found spermatozoa on the vaginal and anal 

swabs. The DNA from the spermatozoa matched the Appellant’s DNA. 

On cross-examination, Special Agent Nelson agreed that testing would not reveal 

how long DNA had been in a particular place. Special Agent Nelson further agreed that 

she did not test the underwear or the sticks for DNA. 
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On redirect examination, Special Agent Nelson explained that she would have tested 

the underwear and sticks had she deemed it necessary; however, further testing was 

unnecessary after she found DNA on the swabs. 

Memphis Police Lieutenant Byron Braxton testified that in May 2014, he was 

involved in the investigation into the crimes against the victim. The police canvassed the 

area surrounding the crime scene for potential security video but found none. They also 

solicited “Crimestoppers’ tips” and followed up on them. Photographs of some of the 

individuals mentioned in the tips were placed in photograph lineups and shown to the 

victim. The only person the victim could identify was a person with whom she had a prior 

relationship; however, she said the person had nothing to do with the crimes. Lieutenant 

Braxton was aware that Taylor had flagged down the police the night of the crimes and 

reported that he had been attacked by someone. Lieutenant Braxton put Taylor’s 

photograph in a lineup, but the victim was unable to identify anyone. 

Lieutenant Braxton said that after learning the Appellant’s DNA had been found on 

the vaginal and anal swabs from the victim, he created a lineup that included the 

Appellant’s photograph. When the victim viewed the lineup, she did not identify the 

Appellant. 

On cross-examination, Lieutenant Braxton said that when he spoke with the victim, 

she was not disoriented, but she had stitches under her tongue, was in pain, and could not 

talk. Lieutenant Braxton did not think the victim appeared to be “low functioning.” 

Lieutenant Braxton said that while viewing the photograph lineups, the victim described 

the man who lured her outside as “‘black and young. Marcus or Marius.’” 

The State rested its case-in-chief, and the Appellant made a motion for judgment of 

acquittal, which was denied by the trial court. The Appellant did not present any proof. 

The jury convicted the Appellant of attempted second degree murder, aggravated rape, and 

rape. 

At the sentencing hearing, the trial court merged the rape conviction into the 

aggravated rape conviction. The trial court sentenced the Appellant to twenty-five years 

for the aggravated rape conviction and twelve years for the attempted second degree 

murder conviction. The trial court ordered that the Appellant serve the sentences

consecutively for a total effective sentence of thirty-seven years in the Tennessee 

Department of Correction. 

II. Analysis

A. Motion to Dismiss the Indictment
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First, the Appellant contends that the trial court erred by denying his motion to 

dismiss the indictment. 1 The State responds that the trial court did not err. We agree with 

the State. 

On November 6, 2015, the Appellant filed a motion to dismiss the indictment 

pursuant to Tennessee Rule of Criminal Procedure 5, alleging that he was denied his right 

to a preliminary hearing. At the December 11, 2015 hearing on the motion, defense counsel 

cited Tennessee Rule of Criminal Procedure 5(e)(4),2 which provides:

If an indictment or presentment is returned against a defendant 

who has not waived his or her right to a preliminary hearing, 

the circuit or criminal court shall dismiss the indictment or 

presentment on motion of the defendant filed not more than 

thirty days from the arraignment on the indictment or 

presentment. The dismissal shall be without prejudice to a 

subsequent indictment or presentment and the case shall be 

remanded to the general sessions court for a preliminary 

hearing.

Defense counsel explained that the Appellant’s case was first set for a preliminary 

hearing on October 16, 2015. On the day of the hearing, the State notified defense counsel 

that it was unable to proceed because multiple witnesses were unavailable. Defense 

counsel agreed to reset the hearing for November 5; however, on the morning of the 

hearing, the State informed defense counsel that the victim was unavailable to testify. 

According to defense counsel, the State suggested that the Appellant move to dismiss the 

case. Defense counsel moved to dismiss the case for “lack of prosecution,” and the motion 

was granted around 11:00 a.m. The next day, defense counsel learned that the Appellant 

had been indicted the same day the case was dismissed. 

Defense counsel complained that the State had acted in bad faith by urging the 

Appellant to dismiss the case in general sessions court, which effectively denied the 

Appellant his right to a preliminary hearing. Defense counsel argued that Rule 5 prohibited 

the State from presenting the case to the grand jury prior to the dismissal of the charges 

unless the Appellant had waived his right to a preliminary hearing. Defense counsel 

alleged that the State was trying to “circumvent [the Appellant’s] rights” to a preliminary 

hearing. Defense counsel noted that the Appellant had been incarcerated since June 18th 

and that she had been “trying to get the case moving.” 

 

1

Judge John W. Campbell presided over the pretrial motions. Judge Lee V. Coffee presided over 

the trial. 

2

“The provisions of former Rule 5(e)(4) are now found in subsection (f)(4).” State v. Michael 

Green, No. E2018-00350-CCA-R3-CD, 2019 WL 2714490, at *13 (Tenn. Crim. App. at Knoxville, June 

28, 2019).
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The prosecutor responded that she was appointed to the case after the October 16 

hearing and did not know what occurred at that hearing. She explained that on November 

5, the State’s investigator went to the victim’s home to drive the victim to court, but the 

victim was not at home. The prosecutor said that she informed defense counsel that the 

victim was not at home, and that the State could make another attempt to find the victim 

that day, or the preliminary hearing could be reset to another day. The prosecutor also 

suggested that another option was for trial counsel to move to dismiss the case. Defense 

counsel decided to ask the court to dismiss the case, and the general sessions court granted

her motion. The prosecutor said that she waited in the clerk’s office until the order of 

dismissal was filed and then obtained a printout showing that the case was dismissed at 

“eleven twenty-something.” The prosecutor said, “I had conversations with Grand Jury 

personnel about how, you know, I was up there, the case had been dismissed, and we had 

about an hour left until the Grand Jury probably broke for the day, and we needed to call 

the investigator down to present the case.” The prosecutor said that, accordingly, “the case 

was presented after it was dismissed downstairs.” The prosecutor argued that the 

Appellant’s right to a preliminary hearing was not violated because his case was dismissed 

on the Appellant’s own motion, and at that point, the State was free to seek an indictment. 

The prosecutor explained that the State had moved quickly to keep “a violent, dangerous 

person” in custody. 

Defense counsel stated that she did not recall the State’s offering to reset the 

preliminary hearing. Defense counsel said she had not seen the document the State 

maintained was proof that the case was dismissed around 11:00 a.m. 

The trial court noted that most cases interpreting Tennessee Rule of Criminal 

Procedure 5 involved a situation in which the State had purposely dismissed a case in order 

to avoid a preliminary hearing. The trial court found that in this case, the State did not 

engage in “any inappropriate behavior” such as dismissing the case to avoid a preliminary 

hearing, withholding evidence, or hiding witnesses. Further, the trial court found no 

evidence to suggest that the victim actually was available and that the State “just decided 

not to present” her. The trial court found that the motion to dismiss was made by the 

Appellant, not the State; accordingly, the Appellant was not entitled to a dismissal of the 

indictment. 

We note that in Tennessee, a preliminary hearing is not constitutionally required; 

however, it is a critical stage of a criminal prosecution that is mandated by law. State v. 

Whaley, 51 S.W.3d 568, 570 (Tenn. Crim. App. 2000) (citing Moore v. State, 578 S.W.2d 

78, 80 (Tenn. 1979)). Specifically, Tennessee Rule of Criminal Procedure 5(f)(1) provides 

that “[a]ny defendant arrested or served with a criminal summons prior to indictment or 

presentment for a misdemeanor or felony, except small offenses, is entitled to a preliminary 

hearing.” The primary functions of a preliminary hearing are “to determine whether 

probable cause exists to believe that the accused committed the offense charged and to fix 
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the amount of bail for bailable offenses.” Whaley, 51 S.W.3d at 570 (citing Tenn. R. Crim.

P. 5.1; State v. D’Anna, 506 S.W.2d 200, 203 (Tenn. Crim. App. 1973)). 

This court has explained that “[g]enerally, the state may seek an indictment by the 

grand jury subsequent to a dismissal of a warrant and prior to a preliminary hearing, and 

the indictment starts a new proceeding.” Id. (citing Waugh v. State, 564 S.W.2d 654, 660 

(Tenn. 1978)). Regardless, “the state is precluded from pursuing a grand jury indictment 

when it, ‘acting in bad faith, effectively denies the accused a preliminary hearing.’” Id.

(quoting State v. Golden, 941 S.W.2d 905, 908 (Tenn. Crim. App. 1996)). This court has 

explained that “[b]ad faith may be defined as the state of mind involved when one is not 

being faithful to one’s duty or obligation.” Golden, 941 S.W.2d at 908 (citing Black’s Law 

Dictionary 693 (6th ed. 1990)). A prosecutor’s duties are to be (1) “the guardian of the 

State’s interest” and (2) “the protector of the rights of the accused.” Id. In carrying out 

these duties, a prosecutor 

may prosecute with earnestness and vigor—indeed, he should 

do so. But, while he may strike hard blows, he is not at liberty 

to strike foul ones. It is as much his duty to refrain from 

improper methods as it is to use every legitimate means to 

bring about a just one.

Id. (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). 

First, the Appellant questions whether the indictment was obtained before the case 

was dismissed in general sessions court, essentially claiming that the State acted in bad 

faith. The Appellant appears to focus primarily on the timing of the State’s effort to obtain 

the indictment. The trial court accredited the prosecutor’s statement that she offered to 

attempt to find the victim, reset the preliminary hearing to another date, or, in the 

alternative, the Appellant could ask the court to dismiss the case. The trial court found that 

the case was dismissed in the general sessions court before the State sought an indictment 

against the Appellant. See Waugh, 564 S.W.2d at 660. We conclude that the trial court 

did not err by denying the Appellant’s motion to dismiss the indictment. Defense counsel 

should have been aware that once the initial prosecution against the Appellant ended, the 

State was free to seek an indictment against the Appellant. 

B. Motion to Quash the Subpoena Duces Tecum

At the December 11, 2015 hearing, defense counsel said that following the dismissal 

of the original case and the subsequent indictment of the Appellant, she obtained a 

subpoena duces tecum, seeking records from the District Attorney General’s office. On 

the morning of the hearing, the State filed a motion to quash the subpoena, contending that 

the Appellant was “seeking to subpoena work product” which was not discoverable under 

Tennessee Rule of Criminal Procedure 16. 
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Defense counsel responded that she had not asked for the district attorney’s work 

product; her only request was for information regarding the specific time the case was 

presented to the grand jury. The trial court responded that it thought the requested materials 

were 

work product, what they generate, what the District Attorney’s 

office generates, and I don’t know what they generate down 

there as far as when a matter is presented. 

I know there’s a book they write all the information in. 

Other than that, I’m not aware of them putting times in the 

book. I know they put in the date of the return as well as the 

indictment number once it’s been given to them by the clerk. 

But, other than that, I don’t – I’m not aware of anything else.

Accordingly, the trial court granted the State’s motion to quash the subpoena. 

On appeal, the Appellant contends that the trial court “erred by quashing the 

[Appellant’s] subpoena of the District Attorney’s records concerning the time that [the 

Appellant’s] case was presented before the Grand Jury when the case was presented to the 

Grand Jury on the same date that the preliminary hearing on the case was scheduled to be 

conducted in general sessions court.” The State contends that the information sought by 

the Appellant was the State’s internal work product and not subject to discovery. 

Initially, we note that the subpoena is not included in the record for our review; 

therefore, we are unable to address the issue. The Appellant carries the burden of ensuring 

that the record on appeal conveys a fair, accurate, and complete account of what has 

transpired with respect to those issues that are the bases of appeal. Tenn. R. App. P. 24(b); 

see Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). “In the absence of 

an adequate record on appeal, this court must presume that the trial court’s rulings were 

supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 

1991). 

C. Victim’s Mental Health

The Appellant contends that the trial court erred by denying his request to review 

the victim’s mental health records. The Appellant asserts that the records “would provide

support for the theory that the victim has a history of auditory and visual hallucinations 

that may have affected her testimony concerning the events of May 2, 2014.” The 

Appellant further asserts that the victim’s history of hallucinations and the fact that she 

stopped taking medication prescribed to treat the hallucinations were relevant “to 

determining the credibility of the victim’s account of whether she engaged in consensual 
- 13 -

sex with [the Appellant] earlier that day prior to the assault that occurred that night.” The 

State responds that the trial court correctly held that the Appellant was not entitled to the 

records. We conclude that the trial court erred but that the error was harmless.

The Appellant filed a “Motion for Production [of] Medical and Psychiatric Records 

for In Camera Inspection Prior to Trial.” The Appellant requested that the trial court “order 

the production of medical and psychiatric documents with regard to the alleged victim in 

this cause, and any other prior or subsequent records which involve the alleged victim in 

this case, for in camera inspection by the Court to determine whether those records may 

be copied by the [Appellant]” pursuant to the rules of discovery. The Appellant noted that 

he had received the medical records for the victim’s hospitalization for the injuries in this 

case and that the hospital records indicated that the victim had a history of neurocognitive 

disorder and mental retardation, that she had been admitted to “Lakeside,” and that she was 

“on psychiatric medications.” The Appellant maintained that the victim’s prior mental 

health records were relevant and material to his defense 

because neurocognitive disorder, and any other psychiatric 

diagnoses, bears directly upon [the victim’s] credibility as a 

witness. Namely, it bears upon her ability to form coherent 

thoughts at the time of the alleged events, free from delusion 

and psychosis, and bears upon her ability to sustain accurate 

memories of those events. Co-occurring disorders of drug 

addiction, neurocognitive disorder, and any other psychiatric 

disorders would further affect those abilities and her credibility 

as a witness at trial.

At a pretrial hearing on the motion, defense counsel explained that she was asking 

the trial court to review the victim’s psychiatric records that were mentioned in the hospital

records. The State acknowledged that the hospital records referenced a history of 

hallucinations and other mental health issues about which the State had no information. 

The State did not object to the trial court’s reviewing the psychiatric and mental health 

records but did not concede the records included any relevant information. The trial court 

granted the motion and agreed to review the mental health records in camera. 

At a subsequent hearing, Judge Campbell stated that he had reviewed the mental 

health records and asked defense counsel to clarify her arguments regarding the relevance

of the records. Defense counsel said the hospital records reflected that the hospital staff 

thought the victim had “psychological issues going on for quite a bit of time” before the 

offenses. Defense counsel asserted that the Appellant needed to know if the victim had 

prior mental health issues and if those issues affected “the potential competence of the 

witness.” 
- 14 -

The trial court responded that it had examined the mental health records and did not 

“see any issue of competence.” The trial court observed, “Based on the [hospital] records 

when she was treated for this injury, she was treated for a horrific injury.” The trial court 

said that “the fact that there was some emotional issue there, there’s nothing in the record, 

in my opinion, that gives rise to any indication that she was not competent or that she was 

in some kind of serious psychological distress that would, in my opinion, make her mental 

history relevant.” The trial court stated that it was “not inclined to release any of that 

information.” 

Defense counsel clarified that the hospital records reflected that the victim’s 

reactions were “inappropriate” and that she was “smiling or laughing when trying to recall 

the events.” As a result of the victim’s behavior, medical personnel called for 

psychological assistance. The trial court reiterated that it had seen nothing in the 

subpoenaed mental health records that justified releasing them to the defense. The trial 

court said, “I didn’t see anything in there that indicated there was any long-term treatment 

or there was any additional – there was no medications or anything like that were prescribed 

for any type of mental illness.” The trial court said, “[The defense] has the medical records, 

the physical records. I don’t see where the mental health side of it really adds anything, so 

I’m not going to release them.” The trial court ordered that the victim’s mental health 

records be placed under seal.

Initially, the State contends that the Appellant’s argument is that he personally 

should have been permitted to review the victim’s mental health records and that the issue 

is waived because he failed to raise it in the trial court. However, the State has 

misconstrued the Appellant’s argument. The Appellant has consistently argued that the 

trial court should perform an in camera inspection of the records first to determine if any 

of the mental health records contained anything relevant to the victim’s credibility. 

Therefore, he has not waived the issue. 

As the State notes, the victim has a right to confidentiality in her mental health 

records. See Tenn. Code Ann. § 10-7-504(13). However, the Appellant has the right to 

review records with exculpatory information to prepare for his defense. See Pennsylvania 

v. Ritchie, 480 U.S. 39, 57-58 (1987). The trial court must balance these concerns and 

review the records in camera before determining whether the records should be provided 

to the defense. See Tenn. Code Ann. § 33-3-105(3). In the instant case, the trial court 

followed the proper procedure but construed the Appellant’s argument solely as an issue 

of competency. The trial court failed to address the argument raised in the Appellant’s

motion, which was whether the records contained anything relevant to the victim’s 

credibility. 

Our review of the sealed records reveals two separate documents that show the 

victim went to a hospital seeking medical treatment on two occasions prior to the offenses. 

According to the first document, which was dated April 18, 2012, the victim went to 
- 15 -

Regional Medical Center complaining of “hallucinations, agitation, and trouble 

concentrating.” At that time, the victim’s mother also told medical staff that the victim had 

“hallucinat[ed] about seeing the devil and other things in the sky.” According to the second 

document, which was dated June 24, 2013, the victim went to Regional Medical Center’s 

emergency room because of a headache. She also reported having auditory and visual 

hallucinations and told medical staff that “someone put a spell on me today which gave me 

a headache.” 

The Appellant’s defense was that he had engaged in consensual sex with the victim 

earlier on the day of the offenses and that he was not responsible for the injuries to the 

victim later that night. The Appellant argued that the victim’s history of audio and visual 

hallucinations, her failure to take her medication, as well as her being sedated, were 

relevant to the reliability or credibility of her memories of the events. A victim’s 

psychological history may be relevant to a defense raised by a defendant. State v. Jeffrey 

R. Allen, No. 03C01-9708-CC-00367, 1999 WL 5173, at *4 (Tenn. Crim. App. at 

Knoxville, Jan. 8, 1999). Based on the Appellant’s defense and the unusual nature of the 

victim’s recollection of the encounter, we conclude that some of the victim’s mental health 

records were relevant to her credibility and that the trial court should have allowed the 

defense to review the relevant records. 

Nevertheless, the victim’s hospital records were provided to the defense in 

discovery. According to a physician’s handwritten notes in the records, on May 12, 2014, 

the victim’s mother, who was at the victim’s bedside, advised medical personnel that the 

victim had been to MMHI twice and that “the last time was apparently 1 year ago for 

auditory and visual hallucinations.” The victim’s mother also advised medical personnel 

that the victim was “placed on medications but . . . ‘we did not want her on crazy ass pills.’” 

Therefore, we conclude that the victim’s hospital records contained information about the 

victim’s history of auditory and visual hallucinations and contained information about her 

failure to take medication that had been prescribed for those hallucinations. As will be 

discussed below, at trial the defense even tried to question the victim in a jury-out hearing

about her history of hallucinations and her failure to take medication prescribed for them. 

Accordingly, although the defense was not privy to the details of the victim’s hallucinations 

which were contained in the psychological records, the defense nevertheless was aware of 

the fact that the victim suffered hallucinations and made the jury aware of that fact. 

Therefore, because the details of the hallucinations could not have changed the outcome of 

the trial, the trial court’s error was harmless.

In a related issue, the Appellant contends that “the trial court erred by suppressing 

during a jury-out hearing the victim’s testimony concerning her prior mental health history 

of visual and auditory hallucinations and her failure to take the prescribed medication for 

the problem.” The Appellant maintains that “the defense should have been allowed to 

explore evidence of the victim’s history of visual and auditory hallucinations as 

documented in the victim’s medical records” and the offer of proof. The Appellant asserts 
- 16 -

that “[t]he evidence in question was relevant for impeachment purposes; to aid in the 

determination of the credibility of the victim’s account of what occurred and to aid in 

explaining why the victim did not recall engaging in consensual sex with [the Appellant].” 

The State responds that the victim said twice during her testimony that her hallucinations 

began only after the offense; therefore, the trial court did not abuse its discretion by finding 

the evidence was irrelevant and overly prejudicial. Again, we conclude that the trial court 

erred but that the error was harmless. 

On cross-examination, defense counsel asked the victim if she talked to a 

psychiatrist during her hospitalization and if she told the psychiatrist about “some of the 

problems” she was having. The State objected, arguing that Judge Campbell had 

determined that the victim’s mental health records were not relevant and, therefore, were 

not admissible. The State asked that the trial court

limit the amount of questions that [defense counsel] gets to ask 

about those records. Those psych records, her psych history, . 

. . I want to limit the amount of questions that are asked about 

whatever psych history she may or may not have. Judge 

Campbell has already looked at that and said that it was not 

relevant.

The State said, “I don’t have an objection to asking her if she talked with a psychiatrist at 

the hospital about the effects of this particular incident on her mental health. . . . But, as 

far as the big picture of her psych history, Judge Campbell has already ruled that that’s 

inadmissible.” 

Defense counsel countered that Judge Campbell 

did not rule that the psych records were inadmissible. I

subpoenaed extra records outside of what we already had 

concerning her medical records because we did receive a large 

package of information from the hospital. So I was asking for 

additional psychiatric med records based on those notes that 

were found in that medical package. Obviously, I can’t ask her 

what the doctors’ notes are. She’s not a doctor. But it goes to 

her state of mind and what her limitations are, and how they 

affect her ability to recall information.

The State asserted that the victim had “testified that she doesn’t have developmental 

delays.” Defense counsel responded, “And I’ve not asked her anything more than that.” 

The trial court stated:
- 17 -

I obviously don’t know what rulings Judge Campbell 

has made, but, whatever the rulings are, Judge Campbell 

reviewed these records, I presume. 

. . . .

If the judge has indicated that he did not think it’s 

relevant – and I don’t know how her medical psychiatric 

history would be relevant to any issues that this jury has to 

determine in this case as to whether or not she was raped or 

not. And she’s indicated she does not have any developmental 

delay issues.

If she spoke to a psychiatrist in the hospital about any 

trauma that may have happened to her, you may certainly ask 

those questions. But, if the judge – and I have not reviewed 

the findings that Judge Campbell has made. I know there are 

sealed records in this file. I don’t know, if there is a mental 

history, how it would be relevant for this case. 

Defense counsel responded that the victim’s mental health was relevant to “her 

ability to testify.” The trial court stated:

If you believed that she was incompetent to testify, 

that’s something that Judge Campbell should have heard once 

a proper motion was filed, and Judge Campbell would have 

made the decision as to whether or not he believed that she was 

capable of taking an oath and understanding the solemnity of 

the oath. That’s something that should have been addressed 

pretrial.

Defense counsel clarified that Judge Campbell “did not rule that the medical records 

that we had already received were inadmissible. He did not say that.” The State 

acknowledged, “No. I know.” Defense counsel maintained that Judge Campbell ruled that 

she could not receive the additional mental health records she had requested. Defense 

counsel contended, however, that in the victim’s hospital records 

there is some medical history there that says that she has 

delusions [inaudible], and I just want to be able to question her 

about those things. If she doesn’t remember, she doesn’t 

remember. But I don’t think there’s anything in the rules that 

says that I can’t ask her about her state of mind, and she admits 

to seeing the psych department.
- 18 -

The trial court said that it would allow defense counsel to make an offer of proof 

out of the presence of the jury. During the proffer, defense counsel asked if the victim 

recalled being seen by “the psych doctors,” and the victim said that she did. The victim 

explained that she thought “psych doctors” were doctors who “deal with anything.” The 

trial court interrupted defense counsel’s questioning and asked the victim if she spoke with 

a psychiatrist in the hospital. The victim responded that she had spoken with “everybody” 

and had “probably” spoken with a psychiatrist.

Defense counsel resumed questioning the victim and explained that a psychiatrist 

was a doctor who addressed mental health issues, and the victim agreed that she 

understood. Defense counsel asked if the victim recalled speaking with a psychiatrist about 

her “disorders,” such as “low functioning, developmental delay.” The victim said no. She 

acknowledged, however, that she had spoken with a doctor about hallucinations she was 

having. She further acknowledged that she was prescribed medication for the 

hallucinations, but the medication made her sick and did not stop the hallucinations, so she 

stopped taking it. She maintained that she “was trying to get help for that.” Defense 

counsel wanted to know “what kind” of hallucinations the victim experienced, and the 

victim answered, “Seeing stuff that’s not there.” 

The victim told defense counsel that she was not prescribed medication before she 

was in the hospital, that she was only given the medication to take while she was in the 

hospital, and that she was not given any of the medication to take at home. Defense counsel

asked if the victim had “hallucinations before this,” and the victim said no. The victim 

denied that she ever went to “MMHI” but said that she had “stayed in – up in whatever 

hospital that they gave me the medication for.” Defense counsel asked if she was “talking 

about this incident or before,” and the victim responded, “I’ve been having it for a little 

while. It didn’t even happen for the accident.” When asked if she had hallucinations before 

“this accident,” the victim replied, “I didn’t have no hallucinations. I had the 

hallucinations, not in this accident, but I have a hallucination, like, first, and then the 

accident had happened.” Defense counsel asked, “So you had hallucinations . . . when the 

accident happened. Right?” The victim responded, “Yeah, but I didn’t know the accident 

would happen like that.” 

At that point, the following colloquy occurred:

[The trial court:] Do you understand [defense counsel’s] 

question right now? And if you don’t, remember I told you, if 

you don’t understand the question, let me know, and we’ll ask 

a better question. Okay?

[The victim:] Okay.
- 19 -

[The trial court:] Now, what [defense counsel] is asking, did 

you ever see any doctors before this accident happened?

[The victim:] I mean, I had went to one of them doctors that 

you stay – like, stay in, for them to give me some medication 

for the hallucinations. 

[The trial court:] That’s before this happened?

[The victim:] Yeah, before. 

[The trial court:] Do you [re]member how long before this 

happened[?]

[The victim:] I don’t know what year it was.

[The trial court:] [W]hen you say “hallucinations,” what kind 

of hallucinations were you having?

[The victim:] Like, seeing things that’s not there and hearing 

things that’s not there.

[The trial court:] And you were supposed to have gotten some 

medicine for that?

[The victim:] Yes.

[The trial court:] And you did not take a medicine?

[The victim:] No. 

[The trial court:] Because it didn’t help, and it made you throw 

up?

[The victim:] Yeah. ‘Cause I had went to the bathroom, and I 

throwed (sic) it back up, and they make me took it over again.

[The trial court:] Now, was that happening while you were in 

the hospital from what happened to you when you got knocked 

out, or was it happening before then?

[The victim:] It didn’t happen when the accident had 

happened.
- 20 -

[The trial court:] It happened when the accident had happened?

[The victim:] No. It didn’t happen.

[The trial court:] It didn’t happen when the accident happened. 

So it happened before the accident?

[The victim:] Before?

[The trial court:] Yes, ma’am. When you woke up in the 

hospital – okay?

[The victim:] When I woke up in the hospital . . .

[The trial court:] You told me you don’t remember what 

happened after this man was in your face, but you woke up in 

the hospital, and you got knocked out?

[The victim:] Yes. 

[The trial court:] Okay. Now, before that – before that, were 

you given any medications for having hallucinations?

[The victim:] No.

[The trial court:] Were you thinking about things or seeing 

things that happened before you got knocked out and sent to 

the hospital?

[The victim:] No.

[The trial court:] So those things happened after you got 

knocked out and you woke up in the hospital?

[The victim:] Yes.

Defense counsel resumed her questioning and asked the victim if she remembered 

going to Lakeside. The State objected to the question, contending, “These are specifically 

the records that Judge Campbell has seen and that Judge Campbell said were irrelevant.” 

Defense counsel said that the reference to Lakeside was in the victim’s hospital records, 

which the defense received during discovery. The State argued:
- 21 -

But references to MMHI and Lakeside in the Regional One 

records, we should not be going into in front of the jury. Judge 

Campbell has already said that what happened at MMHI and 

Lakeside is irrelevant. So references to her trips to MMHI and 

Lakeside, whether they happened or not, should not be coming 

in in front of the jury.

Defense counsel stated that Judge Campbell had not ruled 

that they were irrelevant, that my getting additional records 

from what has already been included in the consent order for 

the patient’s medical records from her time concerning this 

incident at Regional One, then The Med, are the ones by which 

I am referring my questions. I’m not asking about any 

additional records. These are records by which the State 

already consented to.

The trial court said:

[I]t’s difficult when you inherit a case in which another judge 

has already made rulings on. But, if I were in Judge 

Campbell’s position, I would not admit – if I reviewed records 

from MMHI and Lakeside, any prior records. Psychological 

records on a victim [are] not admissible in a trial unless there’s 

some overwhelming need or some overwhelming reason to 

overcome the confidentiality of those records. 

Judge Campbell has reviewed them. He has made a 

decision that it’s not relevant, not admissible. If there is 

something in the records from Regional One Medical Center, 

or whatever it is called now, that made reference to those 

records, it still does not create a back door way of getting into 

records that Judge Campbell has already indicated [are] not 

relevant or admissible, but I will allow you to develop this 

record outside of the presence of the jury, and I’ll make a 

decision as to whether or not some of those questions can be 

asked in the presence of the jury. 

At that point, defense counsel asked the victim if she had ever been seen at Lakeside. 

The victim said, “I stayed on Silver Age.” The trial court interrupted defense counsel and, 

thinking the victim did not understand the question, asked the victim if she had ever been 

in the hospital for mental problems. The victim replied, “I’ve never been there before. It 

was my first time when I had went there for hallucinations.” The trial court asked if the 
- 22 -

victim went to the hospital “[f]or this accident, when you were being treated, after you got 

knocked out?” The victim responded affirmatively. The trial court asked if the victim had 

ever gone to another hospital to be treated for hallucinations, and the victim said no. 

After the offer of proof, the trial court stated:

For the record, again, I’m not privy to those records that 

Judge Campbell reviewed, but he reviewed them. He ordered 

that those records be sealed. . . . So, whatever is in those 

records that Judge Campbell looked at and decided they would 

be sealed and would not be admissible, this Court affirms the 

ruling of Judge Campbell, because there’s nothing that is 

before the Court – if there are any records, and [the victim] has 

indicated she’s never been treated for any psychological 

problems, never had any hallucinations, until she woke up in 

the hospital after having been knocked out and having blacked 

out.

Defense counsel objected to the trial court’s restatement of the victim’s testimony, 

asserting, “I specifically remember you asking her, after I asked her, did she [have] these 

hallucinations before. And she said before the accident. She said that several times.” The 

trial court abruptly interrupted defense counsel, stating, “No, ma’am. That’s not what she 

said. That’s why I got a clarification of it, [defense counsel]. Your recollection may be 

different from mine, but the record will speak for itself.” The trial court warned defense 

counsel, “Don’t argue with me in the middle of this ruling.” The trial court told defense 

counsel to “[h]ave a seat” and cautioned her that if she “continue[d] this conduct, I’m going 

to hold you in contempt of court.” 

The trial court then stated, incorrectly, that after “a clarification,” the victim told the 

court that she 

had never been prescribed medications before this, had no 

hallucinations before this accident, never was treated at any 

hospitals or any mental health issues before this accident. That 

is what she just told the Court.

Your recollection may be different, but this is what my 

ruling is, and this Court will not allow any of these questions 

to be asked in front of the jury. This is character proof for 

which there is no basis. There is no good faith basis for this. 

Judge Campbell has already ruled on these records not being 

admissible, and to allow you to come in a back door to 
- 23 -

circumvent a ruling by another judge is improper, and it will 

not be discussed in front of this jury.

On appeal, the Appellant argues that “he should have been allowed to explore 

evidence of the victim’s history of visual and auditory hallucinations as documented in the 

victim’s [hospital] records.” We note that the propriety, scope, manner, and control of the 

cross-examination of witnesses rests within the discretion of the trial court, and this court 

will not disturb the limits placed upon cross-examination by a trial court unless the court 

has unreasonably restricted the right. State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. 

App. 1995). Further, “questions concerning the admissibility of evidence rest within the 

sound discretion of the trial court, and this [c]ourt will not interfere in the absence of abuse 

appearing on the face of the record.” State v. Pylant, 263 S.W.3d 854, 870 (Tenn. 2008). 

Generally, a trial court abuses its discretion when it “applies an incorrect legal standard or 

reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party 

complaining.’” Id.

In this case, the trial court found that the victim testified that she never experienced 

hallucinations prior to the assault that resulted in her hospitalization. Based on that finding,

the trial court ruled that defense counsel could not question the victim about her history of 

hallucinations. However, the trial court’s finding was incorrect. The victim testified that 

she experienced auditory and visual hallucinations sometime prior to the crimes but that 

she “[did not] know what year it was.” Moreover, had the trial court bothered to review 

the victim’s sealed medical records, the court would have seen that the victim experienced 

hallucinations in 2012 and 2013 and had sought treatment.

3

 

The victim also testified during the offer of proof that she was prescribed medication 

for the hallucinations. She said that she stopped taking the medication but said repeatedly 

that she did not experience hallucinations on the day of the “accident.” In our view, the 

victim’s history of hallucinations and her failure to take medication that had been 

prescribed for those hallucinations were relevant to her ability to perceive what occurred

on the day of the assault and were relevant to her credibility that she was not hallucinating 

that day. See People v. Flowers, 862 N.E.2d 1085, 1090 (2007) (stating that although 

“Brooks denied that he was hallucinating on the day of the shooting, it could be argued that 

the records would be admissible to show that he had complained of hallucinations in the 

past—a fact that would seem relevant not only to Brooks’s ability to perceive the 

occurrences about which he testified, but also as to the credibility of his testimony that he 

 

3 We are perplexed that the trial court failed to review the sealed records when the issue arose 

during trial, particularly in light of the Appellant’s theory of defense and the victim’s testimony during the 

offer of proof. This court has previously stated that “[i]nterlocutory orders of a trial court are subject to 

reconsideration before the litigation is complete, including the power of a successor judge to reverse the 

order of the previous judge.” State v. Jeremy Randall C. Ledbetter, No. M2018-00846-CCA-R3-CD, 2020 

WL 853733, at *24 (Tenn. Crim. App. at Nashville, Feb. 20, 2020). Therefore, the trial court should have 

reviewed the records.
- 24 -

was not hallucinating on the day of the shooting when compared with his statement to the 

investigator”). Thus, we conclude that the trial court erred by not allowing defense counsel 

to question the victim. See State v. Barnes, 703 S.W.2d 611, 617-18 (Tenn. 1986).

Having found error, we must determine the effect of the error. On crossexamination, the Appellant questioned Dr. Evans about the victim’s hospital records, 

which were submitted as an exhibit at trial. Dr. Evans testified that the records contained 

the information that on two occasions, the victim had been to a hospital reporting auditory 

and visual hallucinations. He further testified the records also contained the information 

that the victim’s mother said the victim stopped taking her medication for the hallucinations 

because “we did not want her on any crazy-ass pills.” During closing arguments, defense 

counsel asked the jury to review the victim’s medical records. Additionally, the 

Appellant’s DNA linked him to the crimes. Finally, the computer-generated drawing based 

upon the victim’s descriptions of the man who came to her door before the assault was 

made shortly after the assault and strikingly resembled the Appellant. See State v. Michael 

D. Hernandez, No. E2015-01365-CCA-R3-CD, 2016 WL 5416359, at *9 (Tenn. Crim. 

App. at Knoxville, Sept. 27, 2016); State v. Michael Presson, No. W2012-00023-CCA-R3-

CD, 2014 WL 1669860, at *33 (Tenn. Crim. App. at Jackson, Apr. 24, 2014) (citing State 

v. Carroll, 36 S.W.3d 854, 867 (Tenn. Crim. App. 1999)). Allowing cross-examination of 

the victim on this issue regarding the records would not have changed the outcome of the 

trial; therefore, we conclude that the error was harmless. 

D. Ferguson

The Appellant contends that the trial court erred by failing to dismiss the charges 

against him or, in the alternative, give an instruction to the jury because the State failed to 

preserve potentially exculpatory evidence as mandated by State v. Ferguson, 2 S.W.3d 912 

(Tenn. 1999). The State argues that the trial court did not err by refusing to dismiss the 

charges or give the instruction. We agree with the State. 

During the State’s direct examination of Officer Sanders, Officer Sanders testified 

about photographs he had taken at the scene. Notably, Officer Sanders said that one 

photograph showed “[e]vidence placard number five, a tree branch or a stick with what 

appears to be a dry red substance on that stick.” Without objection, the photograph was 

admitted as exhibit 14. The trial court described exhibit 14 as a photograph of “placard 

number five, described by Officer Sanders as showing a stick with what appears to be dried 

or red blood on the stick.” Officer Sanders described the next exhibit as “[a] photograph 

of the same stick with a dry red substance appearing to be blood.” Officer Sanders pointed 

out on the photograph where the “possible blood” was located on the stick. 

As his direct examination continued, the State asked Officer Sanders to remove the 

stick from an evidence bag. At that point, the parties discovered that the stick recovered at 

the scene was missing. During a jury-out hearing, Officer Sanders assured the trial court 
- 25 -

that he had collected the stick, “tagged” it, and taken it to the police department’s property 

room. The other items Officer Sanders collected from the scene were in the evidence bags. 

The State insisted that the stick recovered at the scene was never sent to the TBI for 

testing to determine whether the substance was blood, and the State did not know what had 

happened to the stick after it was taken to the property room. The State asserted that the 

stick was not a critical piece of evidence. Defense counsel contended that she was 

concerned because the jury had seen photographs of the stick and had heard testimony that 

the red substance on the stick possibly was blood; however, without testing, the substance 

could not be confirmed to be blood. 

The trial court accredited Officer Sanders’ testimony that he collected the stick at 

the scene because the substance on it might be blood, tagged it, and took it to the property 

room. The trial court further accredited Officer Sanders’ testimony that he did not know 

prior to his testimony that the stick was missing. The court noted that items had been lost 

from the property room on other occasions. The trial court said that a lay witness, such as 

Officer Sanders, could give an opinion that a substance appeared to be blood. 

The trial court found that the defense had failed to articulate any of the factors set 

out in Ferguson that would require the court to dismiss the case. The court found that the 

State did not have a duty to preserve the stick because no evidence indicated it had 

exculpatory value or that it was significant to the defense. The court noted that the stick at 

the scene “allegedly, by inference,” was part of the stick that was in the victim’s throat. 

However, during the three and one-half years the case had been pending, neither side 

sought to have the stick tested or indicated it was central to the defense. The court further 

found that the State had “simply lost [the] evidence” and that there was no proof the State 

had intentionally lost or destroyed the evidence. The trial court also held that a Ferguson

instruction was not warranted. The court said that the Appellant’s ability to put on a 

defense was not hampered by the loss. Regarding the instruction requested by defense 

counsel, the trial court said it was not supported by the record. 

The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution and article I, section 8 of the Tennessee Constitution afford every criminal 

defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). 

Thus, the State has a constitutional duty to furnish a defendant with exculpatory evidence 

pertaining to the defendant’s guilt or innocence or to the potential punishment faced by a 

defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963).

In Ferguson, our supreme court addressed “the factors [that] should guide the 

determination of the consequences that flow from the State’s loss or destruction of evidence 

which the accused contends would be exculpatory.” 2 S.W.3d at 914. The court explained 

that a reviewing court must first determine whether the State had a duty to preserve the lost 

or destroyed evidence. Id. at 917. “For this duty to arise, the [evidence] must be expected 
- 26 -

to play a significant role in [the Appellant’s] defense.” State v. Merriman, 410 S.W.3d 

779, 792 (Tenn. 2013). “Specifically, [the evidence] must have potential exculpatory value 

and be of such a nature that [the Appellant] would be unable to obtain comparable evidence 

by other reasonably available means.” Id. “If the proof demonstrates the existence of a 

duty to preserve and further shows that the State has failed in that duty, the analysis moves 

to a consideration of several factors which should guide the decision regarding the 

consequences of the breach.” Id. at 917. The factors include:

1. The degree of negligence involved;

2. The significance of the destroyed evidence, considered in 

light of the probative value and reliability of secondary or 

substitute evidence that remains available; and

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

support the conviction.

Id. (footnote omitted). 

On appeal, the Appellant contends that the “portion of the stick that was lost is the 

one that presumably remained in the culprit’s hands as he attacked the victim. Thus, it’s 

potential to yield a DNA profile of the person holding the stick made it material.” The 

Appellant further contends that the person who assaulted the victim and the person who 

had sex with the victim were not necessarily the same person. However, the Appellant did 

not make these arguments in the trial court. Generally, a party is bound by the evidentiary 

theory argued to the trial court and may not change or add theories on appeal. See State v. 

Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). Moreover, as the trial court noted, 

the Appellant’s case was pending for over three years and the defense was aware that the 

stick was in the State’s possession, yet the defense never sought to have the stick tested for 

any potential DNA. Therefore, we conclude that the Appellant was not entitled to relief 

under Ferguson. 

F. Sufficiency of the Evidence

The Appellant contends that the evidence was insufficient to sustain his convictions, 

particularly because the State failed to establish his identity as the perpetrator. On appeal, 

a jury conviction removes the presumption of the Appellant’s innocence and replaces it 

with one of guilt, so that the Appellant carries the burden of demonstrating to this court 

why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 

913, 914 (Tenn. 1982). The Appellant must establish that no reasonable trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. See Jackson 

v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).
- 27 -

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the 

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the 

credibility of witnesses and the weight and value to be given the evidence, as well as all 

factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate 

courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

The guilt of a defendant, including any fact required to be proven, may be predicated 

upon direct evidence, circumstantial evidence, or a combination of both direct and 

circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. 

App. 1999). Even though convictions may be established by different forms of evidence, 

the standard of review for the sufficiency of that evidence is the same whether the 

conviction is based upon direct or circumstantial evidence. See State v. Dorantes, 331 

S.W.3d 370, 379 (Tenn. 2011).

“In order to convict a defendant of attempted second-degree murder, the state is 

required to prove that the [Appellant] acted with the intent to cause the knowing killing of 

another, believing his conduct would cause the result without further conduct on his part.”

State v. Inlow, 52 S.W.3d 101, 104 (Tenn. Crim. App. 2000) (citing Tenn. Code Ann. §§ 

39-12-101(a)(2) and 39-13-210(a)). “Whether the [A]ppellant ‘knowingly’ attempted to 

kill his victim is a question of fact for the jury.” Id. at 104-05. “‘Intent, which can seldom 

be proven by direct evidence, may be deduced or inferred by the trier of fact from the 

character of the assault, the nature of the act and from all the circumstances of the case in 

evidence.’” State v. Bonds, 502 S.W.3d 118, 145 (Tenn. Crim. App. 2016) (quoting Inlow, 

52 S.W.3d at 105). 

Aggravated rape is defined as the unlawful sexual penetration of a victim by the 

defendant when “[t]he defendant causes bodily injury to the victim.” Tenn. Code Ann. § 

39-13-502(a)(2). “‘Bodily injury’ includes a cut, abrasion, bruise, burn or disfigurement 

and physical pain or temporary illness or impairment of the function of a bodily member, 

organ, or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(2). “‘Sexual penetration’ 

means sexual intercourse, . . . anal intercourse, or any other intrusion, however slight, of 

any part of a person’s body or of any object into the genital or anal openings of the victim’s, 

the defendant’s, or any other person’s body, but emission of semen is not required.” Tenn.

Code Ann. § 39-13-501(7). This court has previously stated that the term “unlawful” 

generally refers to non-consensual acts. See State v. Jones, 889 S.W.2d 225, 227 (Tenn.

Crim. App. 1994).

Regarding the rape and aggravated rape convictions, the Appellant contends that the 

evidence at trial failed to establish the identity of the person who assaulted the victim and 

failed to “establish that the victim did not engage in consensual sex with the [A]ppellant at 

an earlier time.” The Appellant’s DNA was found on swabs taken from the victim’s 
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vaginal and anal areas. Although the Appellant’s theory of defense was that his DNA was 

present because he had consensual sex with the victim, the victim testified that she never 

had consensual sex with the Appellant. Additionally, the victim told the officer who found 

her that she had been raped. Although the victim was unable to identify the Appellant in a 

photograph lineup or in court, she helped the police create a computer-generated sketch of 

the man who lured her into her yard. The trial court noted that the sketch looked 

“strikingly” similar to the photograph of the Appellant that was included in the photograph 

lineup. Thus, we conclude that the evidence was sufficient to sustain the Appellant’s

convictions of rape and aggravated rape. 

Regarding the attempted second degree murder conviction, we note that Dr. Evans 

testified that the stick which was surgically removed from the victim’s throat was 

potentially life-threatening. Further, the jury could have reasonably concluded that the 

rape and the assault occurred at the same time. Accordingly, we conclude that the evidence 

was sufficient to sustain the Appellant’s conviction of attempted second degree murder. 

G. Sentencing

Finally, the Appellant claims that his effective thirty-seven-year sentence is 

excessive because the trial court improperly considered a prior charge for rape of a child 

when the Appellant pled guilty to aggravated assault. The State argues that the trial court 

properly sentenced the Appellant. We agree with the State.

The length, range, and manner of service of a sentence imposed by the trial court 

are to be reviewed under an abuse of discretion standard with a presumption of 

reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In conducting its review, 

the trial court considers the following factors: (1) the evidence, if any, 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 enhancement and 

mitigating factors; (6) any statistical information provided by the administrative office of 

the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement 

by the Appellant in his own behalf; and (8) the result of the validated risk and needs 

assessment conducted by the department and contained in the presentence report. See

Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The 

burden is on the Appellant to demonstrate the impropriety of his sentence. See Tenn. Code 

Ann. § 40-35-401, Sent’g Comm’n Cmts.

At the sentencing hearing, the State introduced a certified copy of a judgment 

reflecting that the Appellant was convicted of aggravated assault on January 18, 2007. The 

original charge was rape of a child, but the Appellant pled guilty to aggravated assault and 

was placed on probation.
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Tonya Stewart, the Appellant’s older sister, testified that the Appellant was thirtysix years old. She said that when the Appellant was six years old, he was diagnosed with 

mental retardation. Their mother was disabled and was unable to take care of him. On 

January 19, 2007, Stewart was appointed as her brother’s legal conservator. Stewart said 

that the Appellant “probably don’t know what’s going on now, but he can’t read or write. 

I have to do that for him. I’ve got to tell him when to take a bath. Can’t cook. Can’t do 

nothing. So he have to be told.” Stewart said the Appellant did not remember things such 

as telephone numbers or addresses. 

Stewart said:

He don’t understand none of this, what’s going on. I

mean, from me being around him. He wouldn’t be able to tell 

him, if I wasn’t here, what y’all talking about, the time, the 

date. I have to call [defense counsel]. He just need help, 

period. I mean, if you understand what I’m saying, is that he 

can’t read, write. You’ve got to tell him – it’s, like, I’ve got 

five – I’ve got six children of my own, and my youngest is 

smarter than him, and my youngest has ADHD and don’t be 

still at all, and he’s smarter than him. I tend to him more than 

my own children. He needed it more than them. And, since he 

don’t know it, he can’t write me a letter. He can’t remember 

the address.

Stewart said the Appellant had never been able to hold “a real salary job.” However, 

a motorcycle club had let him mop and sweep the floor, take out the garbage, and “be 

around” because Stewart had “nowhere else for him to go.” 

On cross-examination, Stewart said that the Appellant was never in trouble with 

juvenile court. Stewart clarified that she was appointed the Appellant’s conservator the 

day after the Appellant was placed on probation for the aggravated assault conviction.

On redirect examination, Stewart said that when the Appellant was released on 

probation, he went to the Harold Jordan facility, which was “the [C]lover [B]ottom in 

Nashville” for his mental illness.4 

The trial court found that the Appellant was a Range I, standard offender. The trial 

court noted that the victim had been in “special education or resource classes[] because 

[she has] some intellectual and mental disabilities.” The trial court observed that the victim 

 

4 The defense did not present any expert testimony or evidence regarding the Appellant’s mental 

health. 
- 30 -

could not remember the person that committed this crime 

against her, but she drew a computer-generated drawing of [the 

person], and that computer-generated drawing of [the person] 

is strikingly, strikingly, almost identical to [the Appellant] 

when and before he cut his dreads and before he changed his 

appearance, and she could not identify this version of [the 

Appellant] in court. But she absolutely drew a picture of [the 

Appellant] that was almost identical to a booking photo of [the 

Appellant] before he cut his hair, before he put on glasses, and 

before he changed his appearance. And his appearance in court 

is drastically different from what he appeared when this 

offense took place in 2014.

The trial court noted that the proof at trial revealed that a significant amount of force 

was needed to drive the stick through the victim’s throat and that the injury could have 

killed her if her airway had collapsed. The trial court said that “this offense . . . is about as 

egregious as any rape that a person could come across.” The court noted that the risks and 

needs assessment reflected a high probability that the Appellant would commit crimes of 

violence in the future. The court observed that the Appellant previously had been charged 

with rape of a child, that he pled guilty to aggravated assault, and that he received a 

probationary sentence of six years. 

The trial court found that the Appellant had a previous history of criminal 

convictions or criminal behavior in addition to those necessary to establish the appropriate 

sentencing range. Tenn. Code Ann. § 40-35-114(1). The court said that it gave “great, 

significant, enormous weight to the fact that [the Appellant], in fact, does have a prior 

felony conviction that was charged originally as a rape of a child and was reduced or 

amended to aggravated assault. . . . [T]he fact that he has been convicted of an aggravated 

assault, I give tremendous weight to that factor.” 

The court further found that the victim was particularly vulnerable because of her 

mental disability, stating that the victim did “not have the mentality of a thirty-eight-yearold.” Tenn. Code Ann. § 40-35-114(4). Additionally, the court found that the Appellant 

treated the victim with exceptional cruelty during the commission of the crimes. Tenn. 

Code Ann. § 40-35-114(5). The court recounted that the victim was hit so hard that her 

teeth were knocked out, then she was “savagely beaten until the point that she [was] 

knocked out. The pictures indicate that she was probably dragged from one location to 

another, where this rape took place, in a field under a tree, in a vacant lot.” The court said 

that once the victim was at the “isolated location,” she was “raped[] anally, vaginally, and 

ha[d] a stick jammed in her throat that almost succeeded in killing her[.]” 

The trial court found that the injuries sustained by the victim were particularly great. 

Tenn. Code Ann. § 40-35-114(6). The court stated that enhancement factor (6) was not 
- 31 -

inherent in attempted second degree murder. The court noted that but for the intervention 

of the hospital staff, “there’s no telling whether or not [the victim] would be alive today.” 

The trial court found that the Appellant possessed or employed a deadly weapon during the 

commission of the offenses and gave that factor “extreme weight.” Tenn. Code Ann. § 40-

35-114(9). In mitigation, the trial court found that the Appellant had an established history 

of mental disabilities or mental illnesses and gave that some, “but, frankly, not significant 

weight.” Tenn. Code Ann. § 40-35-113(8).

The trial court found that the Appellant had shown a sustained intent to violate the 

law, noting that the Appellant had been convicted of two sexual offenses. The court said:

[The Appellant] is a dangerous person, and danger is 

exacerbated even more by the fact that he does have some 

mental issues that probably cannot be treated in this 

community, will probably have to be treated more effectively 

in a mental – in an institutional environment, because, if [the 

Appellant] is walking the streets . . . , vulnerable people, 

children and other vulnerable young women, are, in fact, at 

great risk by [the Appellant]. 

The trial court sentenced the Appellant to twenty-five years for the aggravated rape 

conviction and to twelve years for attempted second degree murder. The court found that 

the Appellant was a dangerous offender whose behavior indicated little or no regard for 

human life and that he had no hesitation in committing crimes in which the risk to human 

life was high. Additionally, the court found that the circumstances surrounding the 

commission of the offense were aggravated, saying that the Appellant lured the mentally 

and emotionally challenged victim from her home, “a place of safety,” and brutally 

attacked her and raped her anally and vaginally. The court found that confinement for an 

extended period of time was necessary to protect society from the Appellant and that the 

length of the sentences was reasonably related to the severity of the offenses. Accordingly, 

the trial court ordered that the Appellant’s sentences be served consecutively for a total 

effective sentence of thirty-seven years. 

On appeal, the Appellant contends that the trial court’s “decision to impose the 

maximum sentence appears to have been affected by his belief that the [Appellant] had 

committed a rape of a child offense.” The Appellant complains that the trial court 

repeatedly referenced the Appellant’s arrest for rape of a child even though the State did 

not introduce a factual basis concerning the prior arrest or the resulting aggravated assault 

conviction. The Appellant maintains that the trial court considered improper factors in 

determining the Appellant’s sentences and that this court should “conduct a de novo review 

without a presumption of correctness and impose concurrent sentences that are less than 

the maximum afforded for each offense.” 
- 32 -

We have reviewed the trial court’s findings. Although the trial court mentioned that 

the Appellant was arrested for rape of a child, the trial court relied on the Appellant’s 

conviction of aggravated assault, which constituted prior criminal history for the purposes 

of enhancement factor (1). Tenn. Code Ann. § 40-35-114(1). Therefore, the trial court did 

not err by applying that enhancement factor. The Appellant does not challenge the 

imposition of any other enhancement factor or contend that the trial court erred by finding 

that he was a dangerous offender when imposing consecutive sentencing. Therefore, we 

conclude that the trial court did not abuse its discretion in sentencing the Appellant. 

III. Conclusion

Finding no reversible error, we affirm the judgments of the trial court. 

_________________________________ 

NORMA MCGEE OGLE, JUDGE