### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M arch 12, 2002
STATE OF TENN ESSEE v. ALBERT Y ARBROUGH
Direct Appeal from the Criminal Court for Shelby County No. 00-04357 Bernie Weinman, Judge

No. W2001-01150-CCA-R3-CD - Filed April 12, 2002

The defendant was convicted by a Shelby County Criminal Court jury of rape, a Class B felony, and sentenced by the tria

l court to f

ourteen years, a t 100% as a

viole nt offender , in the Tennessee Department

of Correction. The sole issue he present s on appeal is whether the evidence was sufficient to support his conviction. Based upon our review of the record, we c o nclud e that the evidence was sufficient for a rational trier o f fact to find him guilty of the offense beyond a reasonable doubt. Accordingly, the judgment of the trial court is affir med. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.

A C Wharton, Jr., Shelby County Public Defender; Garland Ergüden, Assistant Public Defender (on appeal); and Teresa Jones, Assistant Public Defender (at tria l), for the appellant, Albert Yarbrough.

Paul G. Summers, Attorney General and Reporter; Braden H. Bouc ek, Assistant Attorney Genera l; William L. Gibbons , Distric t Attorne y Gener al; and Ca mille McMullen, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

FACTS

On April 25, 2000, the Shelb y County Grand Jury returned an indictment against the defenda nt, Albert Y arbroug

h, charg ing him with the April 29, 1999, r

ape of th e victim, L

isa Cunningha

m. At the def

endant’ s trial, held M arch 20-22, 2001, the victim testified that she was walking home from a convenience store near the corner of Miss issippi and Crump Boule

vards in Memphis at about 3:30 a.m. on April 29, 1999, when a man she had never seen before “hopped out from behind [her],” grabbed her, and threw her into some bushes. She said that the man hit her “real hard,” knocking her to the ground and one of her front teeth out of her mouth, “dived down” on top-2-

of her, and then foug ht to remove her clothing. She testified that she struggled and resisted for approximatelytwenty minutes, managing to kick him and stab him once or twice in the back with
a short knife she carried

in her back pocket. She said that she knew she stuck him with the knife, but“it couldn’t have been very hard because he kept doing what he was doing.” She stated that when she stuck him, the man said, “Oh, bitch, you – you tough, you tou gh, you’re a tough bitch, you’re a tough bitch,” and twisted her arm hard, for cing her to relinquish the knife.

The victim testified that she pleaded with the man not to kill her. She said that he told her, “Shutup, bitch, just lay do wn and ta ke it,” a nd she lay

back, sti ll beg ging for her life. He then penetrated

her with his penis. Although she did not see his penis, she could feel that he was not wearing a condom. She estimate d that the actual in tercour se lasted

ten minute s and said

that she f elt the man ejac

ulate inside of her. After he had completed the act, the man “got up just as normal like [ ] nothing happened” and walked off. Because she had seen some fire trucks up the street, she got up and followed him, yelling in an effort to a ttrac t the firefighters’ attention. However, when the
man turned around and said, “Oh, you want to follow me, huh? Go on before I get you again,” she stopped following him, ran home, and telephoned the police. Approxima

tely two and a half months later, the victim saw the defendant walking in

the same
area in which she had been

attacked and immediately recognized him as the man who had raped her. She said that she flagged down a police officer, who caused the defendant to be apprehended and arrested. The victi m te stified th at she re cognize d the def endant by

his “puff

ed” eye s and his distin cti ve gait, explaining that he walked with a “bounce” or a limp to his step. She later picke d the defendant out of a photographic lineup, circling his photograph and writing, “This is the person that rape[d] me.” The photographic spreadsheet, which included the date “7/14/99” and the victim’s signature, was introduced as an exhibit and published to the jury.

The victim acknowledged that the li ghting in

the area where she was ra

ped was not good, and that she had not been shown a photographic lineup until after she had rec ognized the defendant on the street in

July. None

theless, she was a

bsolutely confide nt that the

defenda nt was t h e man who had raped her and had no doubt that she would have been able to recognize

his photograph at any time. She te stified th at she ha d ample opportuni

ty and “couldn’t help but to se e” the de fendant in the long strug gle during the attack. The victim made a positive courtroom identification of the defenda nt as her rapist.

Lieutenant Joe H ackney of the Memphis Police Department testified that the victim was bleeding from her mouth and had dirt and grass on her clothingand in her hair, when he responded to the call at her apartment shortly after the attac k. He said she “had been obviously in a struggle.” After an ambulance arrived, he went to an overgr own area “on Crump Boulevard right at the railroad tracks east of Mississippi” where he found “a trampled down are a” in the

middle of s ome high gras s, consistent with the victim’s account of the place where she ha d been attacked. Reading from the police report of the incident, Lieutenant Hackney te stified that the victim described her rapist as-3- A male black, f

ive-nine, 30 to 40 years old, had on a dark blue Fed Ex shirt, light blue jeans, black hat, thin be ard, c lean-shaven, light
co mp lexion, offensive speech, faded hairstyle, conse rvative appearance, short hair, medium voice and a ngry demeanor.

He acknowledged that the victim’s description included two different types of

hairstyle, as well as information that the r apist wore a hat. He also acknowledged that the a rea in which the attack occurred was dark and

covered with waist-high bushes and grass. He indicated, however, that the victim had been emotionally distraught at the time she provided her description of the ra p is t, and testified that ther

e were lights near the location where the rape oc curred “up on therailroad bridge.” Margaret Aiken, a nurse clinician at the Memphis Sexual Assault Resource Center, testified that she examined the victim at 7:00 a.m. on April 29, 1999. Among the evidence she collected was
a blood sample, saliva swabs, pubic hair, the victim’s underpants, and vaginal swabs, the latter of which revealed the presence of sp erm in the victim’s vagina. Aiken testified that her standard procedureis to metic ulouslylabel, pa ckage, and plac e the evi dence sh e collec ts into a locked storage
roomat the fa

cility, fr om which it

is then se nt to the Tennessee Bureau of Investigation (“TBI”) for analysis

. She had no personal knowledge of the procedure used to trans port evidence from the locked storage room to the TBI laboratory. Sally DiScenza, a

forensic sexual assault nurse examiner employed at the Memphis Sexual Assault Resource Center, testified that she util ized standard procedures to collect a sa mple of the defendant’s blood for evidence o n July 14, 1 999. She e xplained that stand ard proc edure e ntails taking the suspect’s photograph and fingerprints and asking for identification and signa ture to ensure identity; drawing blood using a sterile needle

and a blood collection tube; placing the blood onto a sterile blotter or “blood standard card” labeled with the suspect’s name; sealing the blood standard card into an evidence envelope containing the suspect’s name, the date and time, and her signature; and then sealing that envelope into a larger envelope or “master suspect kit” containing the suspect’s
name and her signature across the seal of the envelope. DiScenza testified that she plac ed the sealed master suspect kit cont ai ning the defendant’s blood sample in the locked evidence room of the Memphis Sexual Assault Resource Center, from which it was then sent to the TBI. She said that
someone affilia

ted wit h the Me mphis Sexual Assault Resource Center and the Memphis Police Department

was responsible for sending the suspect kits to the TBI for analysis, and that she had no further contact with the e

vidence after p lacing it i n the lock ed evide nce room
. Chad B. Johnson of the TBI, who was accepted by the court as an exper twitness in

the field of serology and DNA a

nalysis, testified that he received, among other evidence in the case, blood standards from the victim and the defendant and vaginal s wabs and

slides fr om the vic tim. He first isolated and ana

lyzed the victim’s a

nd the def

endant’ s DNA fro m their re spective blood samp les, developing a DNA profile for each. He then is olated a mixture of

genetic materia l, containing sperm and epithelia

l cells, f rom the victim’ s vaginal slide and performed DNA analysis on the mixture. His DNA analysis revealed that the genetic material from the victim’s vaginal slide was consistent withthe DNA profiles of the victim and the defendant, indicating the presence of the defendant’s-4-

sperm mixed with

epithelia l cells from the victim’s v agina. Jo hnson test ified tha t he used a databas e and progr am devel oped by the Federa l Bureau o f Invest

igation to d

etermine that the st

atist ica l probabil ity of someone else having the sa me DNA profile as the defendant was one in 130 million individua ls in the Afr

ican-Am erican populatio n, and one

in 69 million individuals in the Caucasian population. On cross-examination, he testified that the eviden ce was shipped to him by Federal Express, and acknowledged that he had no person al knowle dge of the manner i n which it

had been collected. Memphis Police Depa

rtment Patrol Officer Michael Tullos testified that he was driving dow n Crump Boulevard on the aftern oon of July 7, 1999, when the vi ctim wave d him down and t

old him that she had been raped a couple of months ea rlier and had just seen the man who had raped her walking down Porte

r Street t oward Al ston. Off

icer Tullos said

that he obtained a description of the suspect from the victim, verified through dispatch that the victim had filed a rape report, and then drove in the direction the victim indicated the suspect had gone. He said that he located the suspect
one or two bloc

ks away, detaine d him, and brought him back to the victim, who positively identified him as her rapist. Officer Tullos identified the defendant a s the man he had arrested.

As its final witness, the State recalled Sally DiScenza to the stand, wh o identified the defendant as the man from whom she took bl ood on July 14 , 1999. DiSc enza re vealed o n crossexamination that she had placed a sample of the defenda nt’s pubic hair in the ma ster susp ect kit, along with his blood standard card. S he explaine d that, if s he had no t mentione d the pubic hair sample in her ear

lier test imony, it wa s only bec ause she had not been asked about it. She testified that she placed

the blood standard and the pubic hair sample together in the same master suspect kit, sealedthe envelope with evidence tape, placed her signature across the se aled label, and locked the kit in the evidence room of the Memphis Sexual Assault Resource Center.

The defendant elected not to testify and rested his case without the presentation of any proof.

ANALYSIS Sufficiency of the Evidence

The sole issue the defendant presents on appeal is wh et her the e vidence was suff icient to support his conviction. Specifically, he contends that the victim’s identification of him is unreliable, and that th e State failed to establish the proper chain of custody for introduction of the D NA evidence at trial. The State responds by arguing that the chain of custody of the DNA evidence was
reasona bly establish

ed, and th at the jur

y was ent it led to a ccredit the victim’s identification of the defendant as her rapist.

When the suff

iciency of the co nvicting e

vidence is raised as an issue on appeal, this court considers “whethe

r, afte r viewing the evide nce in the light most

favora ble to the prosecution, any rational trier of fact could ha ve found the essentia

l element s of the c

rime bey ond a rea sonable doubt.” Jackson v . Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See-5-

also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1992 ); Statev. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court

or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt b eyond a reasonable doubt.”). All questions involving the credibility of witnesse s, the weight and value to be given the evidence, and a ll factual issues are resolved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty verdict by the jury, a pproved by the trial judge, accredits the testimony of the witnesses for the State a nd resolves all conflicts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innoce nce with w

hich a defendant

is initially cloaked and repl aces it w ith one of guilt, so that on appeal, a convicted defendant has the bur den of demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). Viewing the evidence in the light most favorable to the State, we conclude that a ra tional trier of fact could have f

ound the d

efenda nt guilty of raping the victim bey ond a reasonable doubt. The identity of an accused may

be established by e

ithe r di rect evidence, circumstantial evidence , or a combination of the two. State v. Thompson , 519 S.W.2d 789, 793 (Tenn. 1975). The determination of identity is a question of fact for the jury to consider ba sed upon a consideration of all the evidence. Statev. Strickland , 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). With regard to the identity of an
acc used, “the testimony of a victim, by itself, is sufficient to support a conviction.” Id. (citatio n omitted). Here, th

e victim positively and unequivocally identified the defendant

as her rapist, not
o nly at the time of his arrest, but also in the courtroom during his trial. She remained stea df ast , throughout

her dire ct and cr

oss-examin ation test

imony , that she

had had s ufficie

nt opportu

nity to view her attacker during the ra pe, that she immediately rec ognized the defendant as her rapist when she pas sed

him o n th e st

ree t in J u l y, and that she could ha ve recognized him at any time after the rape. Officer

Tullos testified that the victim told him, when she flagged down his patrol car, that she had just seen

the man who had rap ed her. He said tha t the vic tim’s description led him to the defenda nt, and that when he brought the defendant back to the victim, she af firmed that he was the
man who had a

ttacked and raped her. Ad

ditionally , the vict

im l at er picked the defendant out of a photogr aphic lin eup, onc e aga

in identif yin g him as h

er rapi st.
As support f

or his con

tention tha

t the victi m’s ide ntification of him is unreliable, the defendant points to the inconsistencies in the victim’s original description of her attacker, evidence that the are a in which she was raped was dark, and her testimony that the night of April 29, 2000,
was the first time she had ever seen h er rapist. He also observes that the victim did not mention anything about her attacker’s “puffed” eyes or limping

gait in her original statement to police. The victim maintained throughout her testimony , however, that she was able to se e the def endant in the estimated thirty

min utes that elapsed during the attack, much of which wa s spent with him facing her as he lay on top of he

r, fighting to remove her clothing and pen etrate her with h is penis. Mor eover, she tes tified that there were some street lights in the are a, and that she followed the defendant as he walked

down the street after

the rape, until he turned around and threatene d to “get her” again i f she did n ot cease following . Lie

utenant H ackney

testifie d that, al

though th e immedia

te
area of the rape was dark, there we re lights on the r ailroad bridge near the ar ea in which the rape-6-

occurr ed. Thus, there was evidence from which the jury could have found that the victim had the opportunity to see

her rap ist, eithe

r during or immedia

tely after she was attacked, and fr om which it could have reasonably

accre dited her iden tification of the defendant as her rapist. See State v. Radley , 29 S.W.3d 532, 537 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1999) (“The c

redible testimonyof one ide

ntificat ion witnes s is suffic ient to sup port a co nviction if

the witness viewed

the accused under such circumstances a s would permit a positive identification to be made.”).

As for the discrepancies in the victim’s description of the defendant on the night of the rape, and her fai lure to re

port his “

puffed” ey es or distin ctive gait, the jury could hav e reaso nably concluded

that these inconsistencies and oversights were the result of her e motional state, rather than uncerta inty ab ou t t he de fe nd an t’ s i de nt it y. Lieutenant Hackney testified that the victim was nervous and cry ing at the time she

gave her state

ment to poli ce. I

n light of her distr aught st ate, it is h ardly surprising that some details of her d escr iption var ied. Nor is it surpr

ising tha t she neg lected to mention the defendant’s ey es or distinctive walk, or perhaps even failed to reme mber these t raits, until after she had later seen the defendant walking down the s treet. T he jury ’s decis ion to acc

redit testimonyof a witness in spite of obvious inconsistencies will not be disturbed by this court on appeal unless those “inaccuracies or inconsistencies are so improbable or unsatisfactory as to cre ate
a reasonable doubt” of the defendant’s g uilt. Id. The def

endant’ s presen

tence r eport, indicating that he is 5'8" in height an d w as 40 ye ars old at the time of the rape, demonstrates that although the victim may have pr

ovided some inconsistent details about the defendant’s hairstyle or clothing , she
was rema rkably accura te in othe r descr iptive de tails she providedin her initial report. In sum, we conclud e that the evidence cited by the defendant was insufficient to show that the victim’s identification testimony was unreliable

. The defendant

also contends that the State failed to establish an unbroken chain of custody for the introd

uction of the DNA e

vidence . He arg

ues that the evide nce should not have been admitted because of the State’s failure to present proof of who shipped it from the evidence room at the Memph

is Sexual Ass ault Resou rce Cen ter and w ho rece ived it at t

he TBI laborat ory in Jackson. The State

contends that the chain of custody w as reasonably established, and that the trial court did not abu se its disc

retion in a

dmitting t he DNA e

vidence at trial. We agree with

the State.

In order for tangible evidence to be presented at trial, the State must either introduce a witness who is able to identify the evide nce, or establish an unbroken c hain of custody. State v. Scott , 33 S.W.3d 746, 760 (Tenn. 2000) (citations omitted). The purpose of the chain of custody is “‘to demonstrate that there has been no tampering , loss, substitution, or mistake with respect to the eviden ce.’” Id. (quot ing State v. Braden , 867 S.W.2d 750, 759 (Tenn. Crim. App. 19 93))

. However, the State is not required to establish facts that exclude any possibil ity of tam perin g; reasonable, rather than absolute, assurance as to the identity and integr ity of the evidence is all that is required. Id. (citati ons omitted ). Whethe

r or not the chain o f custody has been sufficie ntly established lies within the sound discretion of the trial court, a nd the tria l court’sdetermin ation will notbe reversed

on appeal absent a showing of abuse of discretion. State v. Beech , 744 S.W.2d 585, 587 (Ten n. Crim. Ap

p. 1987); State v. Johnson , 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984).-7-

Our review reveals no abuse of discretion by the tria l court in this matter. The trial court found that although the chain of custody could have been “done mor e clearly[,]” the State’s proof was sufficient to warrant the admission of the DNA evidence at trial. We agree. “[E]vidence may be admitted when the circumstances surrounding the evidence reasonab ly establi sh the identity of the evidence and its integrity.” Scott , 33 S.W.3d at 760 (emphasis added) (citing State v. Holloman , 835 S.W.2d 42, 46 (Tenn. Crim. App. 1992)). Both Margaret Aiken and Sally DiScenza testified that they followed standard, sterile procedure s in collecting the evidence from the victim and the defenda nt, sealing the evidenceinto envelopes, and placing the labeled and sealed enve lopes in the locked evidence room of the Memphis SexualAssault Resource Center. Both testified that evidence envelopes from t

he locked storage

room wer

e routine ly sent to th

e TBI lab oratory

for ana lysis, although neither was personally involved in the shipment or transport of the evidence to the laboratory. Chad Johnson testified that the evidence arrived to him at the TBI laboratory, via Federal Express, packag ed in two se parate evidenc e envelo

pes, with smaller envelopes inside. One kit was labeledwith the defendant’s name, and the other with the victim’s name. Although Johnson was
never asked if the envelopes were sealed when he received them, and as a conseq uence n ever dir

ectly testified that th ey were, he indicated that the laboratory routinely receives suspect kits from law enforcement

agencies, and that there was nothing about these envelopes that caused him to question their origin, packaging, or labeling. The defendant does not cite a nything in the record

to suggest that the enve lopes we re tampe red with or altered between the time that Aiken and DiScenza placed them i n th e locked evidence room and they arrive d at the TBI. Thus, we conclude that the circumstances establish

with reasonable assurance the identity and integrity of the evidence at issue. See id. (“the Sta

te is not required to establish facts which exclude every possibility of tampering”) (citing State v. Ferguson , 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987)).

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial cou

rt.

___________________________________ ALAN E. GLENN, JUDGE