IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 16, 2014 Session

STATE OF TENNESSEE v. DUSTIN MATTHEW LUCIO

Direct Appeal from the Circuit Court for Sevier County

No. 15763-II Richard R. Vance, Judge

No. E2014-00642-CCA-R3-CD - Filed March 31, 2015

A Sevier County Circuit Court Jury convicted the appellant, Dustin Matthew Lucio, of

aggravated rape, and the trial court sentenced him to twenty-three years in confinement to

be served at 100%. On appeal, the appellant contends that the trial court erred by failing to

suppress a suggestive pretrial identification of him as the perpetrator, that the trial court erred

by refusing to allow him to introduce evidence of the victim’s drug use to corroborate his

version of the events, and that the evidence is insufficient to support the conviction. Based

upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the

trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which ROGER A. PAGE and

ROBERT H. MONTGOMERY, JR., JJ., joined.

Robert L. Vogel (on appeal), Knoxville, Tennessee, and Michael Green (at trial), Sevierville,

Tennessee, for the appellant, Dustin Matthew Lucio.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant

Attorney General; James B. Dunn, District Attorney General; and Ashley McDermott,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At trial, the victim testified that on the day of the alleged incident, she worked at

General Electric in Mascot. That night, she went “karaoking” with Judy Smith, who was her

adoptive mother, and Joanna Stewart and Jessica Cervantes, who were Smith’s biological
daughters. A.K., the fifteen-year-old niece of Stewart and Cervantes, stayed at Stewart’s

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apartment to babysit Stewart’s two young children. The four women went to two bars, and

the victim consumed two and one-half alcoholic drinks before Smith announced that she

wanted to go home. Smith drove the victim and Stewart back to Stewart’s apartment and

dropped them off.

The victim testified that she and Stewart did not go into Stewart’s apartment. Instead,

Stewart got into her car, told the victim that A.K. had agreed to watch the children all night,

and left to go to her boyfriend’s house. The victim did not want to drive home because she

had been drinking alcohol, so she went into Stewart’s apartment alone. She said that as soon

as she entered, A.K. “jumped off the couch” in the living room and was “pointing” and

“hollering.” A.K. was intoxicated, was slurring her words, and could barely stand up

straight. At the same time, the appellant came into the living room from the back of the

apartment. A.K. screamed that “that’s not my boyfriend,” lay on the couch, and vomited into

a trash can. The victim said, “I put her in my lap. I’m holding her hair back and I tried to

get her some bread.”

The victim testified that Stewart’s apartment had two bedrooms and that Stewart’s

children were sleeping in the master bedroom. She said that she had never seen the appellant

prior to that night, that he offered her a drink, and that he asked her name. The victim said

she “played” with her telephone while A.K. remained passed out in her lap. The appellant

asked if the victim had a boyfriend, and she told him yes. At that point, a male and female

came out of the back bedroom. The victim did not know them and had been unaware they

were there. The couple left, and the appellant followed them outside. The appellant came

back into the apartment, put a twenty-dollar bill into A.K.’s hand, and told the victim to tell

Stewart that Stewart did not have to pay the babysitter. The appellant left the apartment

again, and the victim thought he would not return. A.K. remained on the couch with the

victim.

The victim testified that the appellant came back into the apartment, told her that his

friend had left a cellular telephone in the back bedroom, and went to the bedroom to look for

it. The appellant asked the victim to call the phone so he could find it and gave her the

telephone number. The victim dialed the number and went to the bedroom but could not hear

the lost phone ringing. Suddenly, the lights in the room went out. She said that the appellant

pushed her into the bedroom and that she fell onto the floor between a wall and a dresser.

The appellant, who was behind her, shut the bedroom door, put his arm around her neck, and

put his hand over her nose and mouth. The victim said that she could barely breathe, was

kicking and screaming, and began to black out. The appellant told her that he would move

Because the witness was a minor, we will refer to her by her initials.

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his hand if she would stop screaming and do as he said.

The victim testified that she “[gave] up” and that the appellant told her to “move to

the bed.” The victim went to the bed, and the appellant told her to take off her pants. The

victim said she told him that “you don’t want to do this, I’m on my period.” The appellant

unbuckled her belt, pulled down her pants to her feet, and removed her shoes. He took off

her underwear, got on top of her, and pulled down his pants. The victim said that she was

crying and that the appellant put his penis into her vagina for five or six minutes. She said

that during the incident, the appellant held her cellular telephone over her head and showed

her a picture of her son that was on the phone. He told her, “[D]on’t you want to be a good

mother to your son, you will do as I say, whatever I say, whenever I say.”

The victim testified that the appellant ejaculated. Afterward, he said that “this will

make you feel better” and put his mouth on her vagina. The appellant’s phone started

ringing, so he pulled up his pants and told her not to move or he would get a knife from the

kitchen and kill her. The appellant left the bedroom, and the victim got off the bed and

looked for her underwear. The appellant returned to the room, told her to get back onto the

bed, and told her that he had friends “coming to do the same thing to you.” The victim said

that she was scared and that the appellant left the bedroom again. The victim heard him go

into the bathroom and shut the door, so she grabbed her underwear and put it on. She pulled

up the window blinds, opened the window, and jumped through it.

The victim testified that she “took off running” to the apartment of Joe Mayton, who

had raised A.K. as his daughter but was not A.K.’s biological father. The victim opened

Mayton’s unlocked front door and ran inside. She started screaming to Mayton that she had

been raped and that A.K. and Stewart’s children were still in Stewart’s apartment with the

appellant. Mayton called 911 and left. Shortly thereafter, the victim returned to Stewart’s

apartment. The police were there, and the victim told them what had happened. The victim

went into the back bedroom and saw her pants, belt, and shoes on the floor. Later, she went

to the hospital so that evidence could be collected for a rape kit. She also gave the police a

statement at the hospital. She said that both of her lips were “busted” and that she had

bruises on her back from hitting the dresser. At the conclusion of her direct examination

testimony, the victim identified the appellant in court as the person who raped her.

On cross-examination, the victim testified that she was not “intoxicated drunk” but

had “a buzz” that night. She denied drinking alcohol with the appellant and A.K., flirting

with the appellant, or laughing with him. She also denied knowing that the appellant

possessed Roxicodone prior to having sex with him or that he took her telephone as collateral

for giving her the drug. She acknowledged that after the appellant knocked her down and

grabbed her from behind, he let her go so she could move to the bed. The victim said that

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she had started her menstrual period at one of the bars and that she had put toilet paper in her

underwear because she did not have a tampon. However, the police did not recover the toilet

paper from the apartment, and she did not know what happened to it. She acknowledged that

she may have testified previously that she started her period three or four days before the

incident.

On redirect examination, the victim testified that she had never seen A.K. intoxicated

before that night and that the appellant was “in and out” of the apartment. After the appellant

put the twenty-dollar bill into A.K.’s hand, he said he wanted to take A.K. to McDonald’s.

The victim told him, “[N]o, dude, she’s passed out, she’s unconscious, she ain’t going

nowhere, she’s supposed to be here.” The victim said the appellant was mad and acted like

he was going to lift A.K. off the couch. The appellant’s actions scared the victim, but she

refused to let him take A.K. out of the apartment. The victim identified photographs of her

injuries.

Jessica Cervantes testified that she had known the victim about ten years and that the

victim began living with Cervantes’ mother, Judy Smith, when the victim was about sixteen

years old. On the night in question, Joe Mayton telephoned Cervantes. Cervantes missed his

call, but he left a voicemail on her phone. In the voicemail, Mayton said A.K. had been

drinking and had been raped, and Cervantes could hear someone hysterical and crying in the

background. Cervantes called 911, reported that A.K. had been raped, and went to Joanna

Stewart’s apartment. She saw the victim sitting on the sidewalk and learned the victim, not

A.K., had been raped. She said the victim was crying, shaking, and hysterical.

Joseph Mayton testified that he was A.K.’s father and lived in the Park Village

apartments. Joanna Stewart also lived in the apartment complex. On February 20, 2009,

Mayton and some friends were in his apartment when the victim “burst in the door” and said

she had been raped. The victim was terrified and told Mayton that the appellant was in

Stewart’s apartment with A.K. and Stewart’s children. She described the appellant as having

short hair and a medium build and wearing jeans and a t-shirt. Mayton and one of his friends

ran to Stewart’s apartment, and Mayton knocked on the door. Mayton said that the appellant

answered and that the appellant’s face was “completely white.” Mayton did not say anything

to the appellant but “clocked” him on the head. Mayton and his friend scuffled with the

appellant in the living room, and the fight continued into the parking lot. Mayton said A.K.

“woke up out of her slumber,” came outside, and told Mayton to stop. A.K. argued with

Mayton, and he told her to go back inside. He said the appellant “got away” in the

appellant’s car, a white Eclipse.

On cross-examination, Mayton testified that the victim identified the appellant by

name and that his fight with the appellant lasted about three minutes. On redirect

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examination, Mayton testified that the victim came into his apartment wearing a shirt but no

pants and that he gave her a pair of his shorts to wear. When A.K. came out of Stewart’s

apartment, she was stumbling, upset, and did not understand what was going on.

Sergeant Eric Ramsey of the Sevierville Police Department testified that in the early

morning hours of February 20, 2009, he was dispatched to an apartment on Park Road. He

was the first officer on the scene and spoke with Joe Mayton and the victim. Sergeant

Ramsey went into Joanna Stewart’s apartment and had the victim walk him through the

event. The victim was crying and upset. He said that she was wearing a shirt and shorts and

that her clothes were “kind of a mess.” The victim’s pants were on the bedroom floor, and

a window beside the bed was open. Sergeant Ramsey collected a bed sheet because it had

some stains on it. The victim told him that her attacker was “Dustin,” but she did not know

Dustin’s last name. In talking with other people at the apartment, Sergeant Ramsey learned

that Dustin’s last name was “Lucio.” He ran a driver’s license check on the name and pulled

up a photograph of the appellant.

Sergeant Ramsey testified that he took the victim to the emergency room (ER) so that

evidence could be collected for a rape kit. The victim had a “busted” lip, scratches and

abrasions on her back, and a mark on her neck. Sergeant Ramsey showed the appellant’s

photograph to the victim in the ER, and she “said that was the right Dustin Lucio.” The

following night, Sergeant Ramsey had the appellant arrested and brought to the police

department. The appellant waived his rights and gave a brief statement. In the statement,

the appellant claimed he was intoxicated and did not remember what had happened with the

victim. Sergeant Ramsey told the appellant that he was being accused of rape, and the

appellant showed no emotion. Sergeant Ramsey explained, “He kind of was just like, well,

doesn’t sound like me but I guess if I did it, shame on me.” Sergeant Ramsey later collected

buccal swabs from the appellant.

On cross-examination, Sergeant Ramsey testified that he did not collect a “maxi pad”

or toilet paper from Stewart’s apartment and did not see bloody toilet paper in the bedroom.

He acknowledged that an intoxicated minor was present and said that the minor was not cited

for underage consumption of alcohol. The victim had claimed that the rape started on the bed

and moved to the floor. The appellant did not admit or deny the victim’s allegations and said

he could not remember. The victim told Sergeant Ramsey that she had been drinking

alcohol, but she did not appear to be intoxicated.

Dr. Kevin Stasney testified as an expert in emergency medicine that he treated the

victim in the ER in the early morning hours of February 20, 2009. He interviewed the victim,

and she told him the following: The victim had been drinking alcohol with a friend and went

to “Joanna’s” apartment. A fifteen- to sixteen-year-old niece was present and was

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intoxicated and vomiting. A male came out of the back bedroom. A second male and a

female also came out of the bedroom. The two males got mad at the victim but left the

apartment. One of them returned, and the victim checked all of the rooms, looking for a cell

phone. She went into a bedroom, and the male pushed her into the room and locked the door.

He put his hand over her mouth, removed her pants, and threatened to kill her with a knife.

He put his penis inside her and ejaculated, and “spots were on the sheet.” The male left the

room and threatened her again. The victim escaped through a window and was wearing a

robe and shorts. She said that the man “tried to perform oral sex after sex became painful”

and that he may have scratches on his hand.

Dr. Stasney testified that the victim had an abrasion on the right side of her back and

a small abrasion on her upper and lower lips. The victim was tearful and crying, and matter

in her nose was probably dried mucus, not a pill. Dr. Stasney collected evidence for a rape

kit, including the victim’s pubic hair and samples from inside and outside her vagina and

rectum. The victim complained to a nurse of painful urination. Dr. Stasney said painful

urination could have been caused by a urinary tract infection or trauma. The nurse noticed

blood at the victim’s urethral meatus, which was the opening where the bladder excreted

urine, and noted tenderness in the victim’s pelvic area, an abrasion on the victim’s back, and

a lesion on the victim’s mouth. The victim was having her period. Dr. Stasney said that she

did not appear to be under the influence of alcohol and that she was able to answer his

questions and follow directions.

On cross-examination, Dr. Stasney testified that he did not draw blood from the victim

or order a toxicology report. The victim’s pulse was elevated, and the blood at her urethral

meatus was consistent with trauma or her period.

Jennifer Millsaps, a special agent forensic scientist with the Tennessee Bureau of

Investigation, testified as an expert in serology testing that she received the victim’s rape kit,

a bed sheet, the victim’s clothing, and DNA swabs from the appellant. Agent Millsaps

analyzed a vaginal slide from the victim and found sperm. She compared the DNA from the

sperm to the appellant’s DNA, and the profiles matched. She said the probability of someone

having the same DNA profile as the appellant exceeded the world’s population. Given that

the sperm in the victim came from the appellant, Agent Millsaps did not analyze any other

evidence. On cross-examination, Agent Millsaps testified that she did not know how the

appellant’s sperm got into the victim’s vagina.

Heather Powell testified that she was the appellant’s ex-girlfriend and that they had

a son together. In February 2009, Powell and the appellant were no longer dating, but she

was living with him. On the night of the alleged rape, Powell telephoned the appellant five

or six times, but he did not answer. She finally spoke with him between 9:00 and 10:00 p.m.

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and could hear male and female voices in the background. Between 3:00 and 3:30 a.m.,

Powell was awakened by a knock on the front door. When she answered it, the police were

there and said they were looking for the appellant. Powell told them that she did not know

where the appellant was located. Powell later telephoned the appellant, and he “seemed like

he was rushed, there was a lot of commotion going on.” She told him not to come home

because the police had been there and were watching. One or two days later, Powell talked

with the appellant about what had happened, and he told her that he had blacked out and did

not remember. He said that he did not think he had raped the victim and that they had

consensual sex. On cross-examination, Powell testified that after her last conversation with

the appellant, she telephoned the police and told them that he was at the home of Adam

Kerley.

Abigail Kerley, Adam Kerley’s sister, testified that she met the appellant “[t]hrough

some friends” and had known him about three years at the time of trial. Prior to the alleged

rape, Abigail “met up” with Adam and the appellant at the Rockin Raceway in Pigeon

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Forge. Abigail tried to get them to go home with her, but Adam and the appellant went to

Ashley Johnson’s house. The next morning, Adam and the appellant arrived at Abigail’s

home and “went straight to bed.” The following morning, the police arrested the appellant.

Abigail testified that at some point, she telephoned the appellant and asked him about

“what he had done.” The appellant told her that “the drugs and alcohol made him do what

he did that night.” On March 22, 2009, Abigail had a second conversation with the appellant.

The appellant told her that Johnson had taken him and Adam to the home of “that [A.K.]

girl” and that the first time he ever saw the victim was in a courtroom. He told Abigail that

“this is a bunch of [bulls***]” and that “I don’t know what the [f***] the deal is.” Later in

the conversation, the appellant told her, “But the rape charge I am trying to beat right now.

They don’t have any evidence or any [bulls***] on me right now.” Abigail said that when

the appellant subsequently learned that she was going to be a witness for the State, he

telephoned her, tried to get her “to go on his side,” and told her that she “didn’t need to go

against him.” He later telephoned her again and apologized for being “sort of angry” during

their previous conversation. Abigail said she had never met the victim. At the conclusion

of Abigail’s testimony, the State rested its case.

Eighteen-year-old A.K. testified that she had known the victim “my whole entire life”

and that the victim was “like my aunt.” On the night in question, A.K. had just turned fifteen

years old and was babysitting Joanna Stewart’s children, who were sleeping in Stewart’s bed.

A.K. had met the appellant about two months previously and thought he was cute. While

Because the witness shares a surname with her brother, we will refer to them by their first names 2

for clarity. We mean no disrespect to these individuals.

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A.K. was babysitting, Ashley Johnson sent A.K. a text, asking if she wanted to “hang out.”

A.K. replied yes, and Johnson brought Adam Kerley and the appellant with her to Stewart’s

apartment. The four of them consumed alcohol, and A.K. and the appellant got onto the floor

while Johnson and Kerley went into the back bedroom. A.K. said that she and the appellant

were “cuddling” and that she was “pretty drunk” and “about to pass out” when the victim

came into the apartment. A.K. jumped up because she had not been expecting the victim, and

the victim threatened to call A.K.’s aunt. A.K. began to get sick, and the victim got her a

trash can and fed her some bread. A.K. said she passed out and remembered “waking up to

[her] dad yelling.” A.K. went to the door and saw the appellant driving away in a white car.

On cross-examination, A.K. testified that she did not know much about the appellant

when he came to the apartment but knew he was older than she. The appellant “came off”

as intoxicated because he was slurring his words. Otherwise, he acted normal. A.K. began

to feel “nauseous” and lay on the floor, and the appellant got onto the floor with her. A.K.

said that when the victim came into the apartment and saw the situation, the victim was

“pretty mad.”

A.K. testified that when she woke, she saw two people leaving in the appellant’s car.

She thought the people were the appellant and Adam Kerley. The victim was gone but later

returned to the apartment. The victim “had snot everywhere,” was crying and shaking, and

could barely talk. A.K. went into the back bedroom and saw that “stuff was thrown

everywhere.” She said that the room was “completely destroyed” and that “[s]omething had

definitely happened in the bedroom.”

On redirect examination, A.K. testified thatshe did not know what was going on when

she woke and that she did not see Joe Mayton fighting the appellant. A.K. did not see any

toilet paper in the bedroom.

Ashley Johnson testified that she, the appellant, and Adam Kerley were at the

apartment with A.K. She said she did not remember much about the victim’s being there

because she left when the victim arrived. She said, though, that she saw the appellant and

the victim sitting on the couch and that the appellant had his arm around the victim. She

acknowledged discussing this case with the assistant district attorney general and said that

she told the general, “I left before it even happened.”

On cross-examination, Johnson testified that at some point that night, she and Adam

Kerley went into the back bedroom and had sex on the bed. However, Johnson was standing

in the living room when the victim arrived. She acknowledged that after this incident, the

appellant contacted her and “told [her] that he wanted [her] to say that [she] was there when

[she wasn’t].”

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At the conclusion of Johnson’s testimony, the jury convicted the appellant as charged

of aggravated rape, a Class A felony. After a sentencing hearing, the trial court sentenced

him to twenty-three years to be served at 100%.

II. Analysis

A. Suppression of Identification

The appellant contends that the trial court erred by allowing the victim’s pretrial

identification of him into evidence because Sergeant Ramsey’s showing a single photograph

to the victim was unduly suggestive. The State argues that the trial court did not err. We

agree with the State.

Before trial, the appellant filed a motion to suppressthe victim’s pretrial identification

of him because the identification was made from Sergeant Ramsey’s showing her a single

driver’s license photograph. Before the State’s opening statement at trial, the trial court held

a hearing on the motion. During the hearing, the victim testified that after the alleged rape,

the police arrived at Stewart’s apartment. The victim gave Sergeant Ramsey a description

of her attacker, telling him that the man’s hair was dark brown and that his height was “just

as tall as me, if not just a little taller.” A.K. knew the appellant’s name and gave it to

Sergeant Ramsey. After the victim went to the hospital, the officer showed her a photograph

of the appellant, and she identified him as the man who had raped her. The victim testified

that she could have identified the appellant without seeing the photograph, and she identified

him in court as the perpetrator. On cross-examination, the victim testified that Sergeant

Ramsey showed the photograph to her about two hours after the incident and that he showed

her only one photograph.

Upon being questioned by the trial court, the victim testified that she was in the

appellant’s presence about one and one-half hours “at the most.” The trial court asked her

if the area was lighted and if she was able to see the appellant clearly, and she answered yes.

She said she had not seen him prior to that night. The victim stated that she was later shown

a photograph array containing a different photograph of the appellant and that she identified

his photograph again. She also identified him at his preliminary hearing. The trial court

asked if she had any doubt that the appellant was the person who committed the crime, and

she said no.

The trial court noted that single-photograph identifications generally were

inadmissible. However, the court stated that in this case, the victim was in the appellant’s

presence for one and one-half hours and that the surroundings were lighted, which gave her

an “extraordinary opportunity” to see him. The trial court noted that the victim subsequently

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identified the appellant from a photograph array, at the preliminary hearing, and during the

suppression hearing. The trial court found that under the totality of the circumstances, the

victim’s identifying the appellant from a single photograph was reliable and denied the

motion to suppress.

In reviewing a trial court’s determinations regarding a suppression hearing,

“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact

in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.

Nevertheless, appellate courts will review the trial court’s application of law to the facts

purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the

State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence

adduced at the suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in

evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate

courts may consider the proof adduced both at the suppression hearing and at trial.” State

v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

In Neil v. Biggers, the United States Supreme Court established a two-part analysis

to assess the validity of a pretrial identification. 409 U.S. 188, 198-99 (1972). First, the trial

court must determine whether the identification procedure was unduly suggestive. Id. at 198.

“To be admissible as evidence, an identification must not have been conducted in such an

impermissibly suggestive manner as to create a substantial likelihood of irreparable

misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing Simmons v.

United States, 390 U.S. 377 (1968)). If the trial court determines that the identification was

unduly suggestive, it must then consider whether, under the totality of the circumstances, the

identification procedure was nonetheless reliable. Biggers, 409 U.S. at 198-99. In Biggers,

the United States Supreme Court identified five factors for determining the reliability of an

identification: (1) the opportunity of the witness to view the perpetrator at the time of the

offense; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior

description of the perpetrator; (4) the level of certainty demonstrated by the witness at the

confrontation; and (5) the time between the crime and the identification. 409 U.S. at

199-200; see also State v. Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994). If, using

the Biggersstandard, a pretrial confrontation wasso impermissibly suggestive that it violated

an accused’s right to due process, both the out-of-court and in-court identifications are

excluded. State v. Shanklin, 608 S.W.2d 596, 598 (Tenn. Crim. App. 1980).

A police officer’s confronting a witness with a single photograph of a suspect is

inherently suggestive. See State v. Billy Tate, No. E2012-02576-CCA-R3-CD, 2013 Tenn.

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Crim. App. LEXIS 842, at *13 (Knoxville, Sept. 27, 2013) (quoting State v. Thomas, 780

S.W.2d 379, 381 (Tenn. Crim. App. 1989)). However, the witness’s out-of-court and incourt identifications will be admissible if the trial court finds that the single-photograph

identification was reliable under the Biggers factors. Id.

In this case, the victim testified that she was in the appellant’s presence for one and

one-half hours. They were in lighted surroundings for part of that time, and the victim could

see the appellant’s face clearly. After the crime, she told Joe Mayton that her attacker had

short hair and a medium build and was wearing jeans and a t-shirt. At the suppression

hearing, the victim said she described him to the police as having dark brown hair and being

her height or “just a little taller.” Nothing indicates that the victim’s descriptions were

inaccurate. The victim told Sergeant Ramsey at the apartment that her attacker’s name was

“Dustin.” Sergeant Ramsey testified at trial that when he showed the appellant’s photograph

to the victim in the ER, she “said that that was the right Dustin Lucio.” Finally, the victim

made the identification shortly after the incident. Therefore, we conclude that the trial court

did not err by finding that the victim’s identification of the appellant was reliable.

B. Victim’s Drug Use

The appellant contends that the trial court erred by refusing to allow him to introduce

evidence of the victim’s history of drug abuse and use of drugs on the day in question to

corroborate his version of events. We conclude that he is not entitled to relief.

Before trial, the State filed a motion to suppress medical records for the victim

“regarding drug treatment which she attended months after the alleged rape” on the basis that

the records were irrelevant and unduly prejudicial pursuant to Tennessee Rules of Evidence

402 and 403, respectively. A transcript for a hearing on the motion is not in the record before

us. However, at the motion for new trial hearing, the State advised the trial court that a

hearing on the motion was held in May 2011 and that the court “found that the drug treatment

was outside of this time period of this incident and for that reason the Court found that that

would not be allowed to come into trial.”

During defense counsel’s opening statement, he alleged as follows: Prior to the

alleged crime, the victim and the appellant shared “a few drinks” and flirted on the couch.

The victim learned the appellant was “holding pills, Roxicodone” and tried to “score” drugs

by asking him for one of the pain pills. The appellant wanted money for the pill, but the

victim did not have any money, so “she paid with the one thing she did have on her, herself.”

After they had consensual sex, the appellant took the victim’s cellular telephone as collateral

for the money he thought she still owed him. The victim was angry, “felt scorned,” and

accused the appellant of rape “to get even.”

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During Dr. Stasney’s cross-examination testimony, defense counsel asked if he “took

a social history that evening,” and he answered yes. Defense counsel asked Dr. Stasney to

read the social history from his notes, and the State objected, arguing that “[h]e’s trying to

get into her past [drug use].” The trial court stated that it had already ruled on that issue, and

defense counsel responded, “Anything previous, I’m not trying to get in. I’m trying to

establish for that evening.” The trial court reviewed Dr. Stasney’s notes and stated, “History

is history. It doesn’t specify right now and it doesn’t give a time frame. You can’t ask that.

. . . You’re getting too close to trying to get into what I’ve told you time and time again that

you can’t and I know that’s what you’re trying to do so don’t, period.”

The appellant contends that he should have been allowed to present evidence that the

victim had been using drugs that night. He also contends that he “should have been allowed

to introduce medical records of the victim that showed she went to drug rehab for an

addiction to the same drugs that Mr. Lucio claimed he gave her in exchange for sex on the

night in question.”

Regarding the appellant’s latter claim that he should have been allowed to introduce

evidence that the victim later sought treatment for Roxicodone, the State filed a motion on

the issue, the trial court held a hearing, and the trial court granted the motion. However, the

appellant failed to include a transcript of the hearing in the appellate record. As this court

has repeatedly stated, it is the appellant’s duty to prepare a record which conveys a fair,

accurate, and complete account of what transpired in the trial court which forms the basis of

his appeal. See Tenn. R. App. P. 24(b). “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). Without a transcript of the

hearing, which would have included the parties’ arguments, the evidence presented, and the

trial court’s oral findings, we cannot consider the merits of the issue. Furthermore, nothing

in the record before us shows that the victim sought treatment for an addiction to the same

drug that the appellant claimed to have given her on the night in question. Therefore, he is

not entitled to relief.

As to the appellant’s claim that he should have been allowed to present evidence of

the victim’s drug use before the alleged rape, evidence that the victim ingested Roxicodone

prior to having sex with the appellant would have been highly relevant to his claim that they

exchanged the drug in return for consensual sex. See Tenn. R. Evid. 402. Moreover, the

probative value of the evidence would not have been substantially outweighed by the danger

of unfair prejudice. See Tenn. R. Evid. 403. However, other than defense counsel’s opening

statement assertions, which are not evidence, nothing indicates that the victim ingested

Roxicodone that night. On cross-examination, the victim denied knowing that the appellant

possessed Roxicodone prior to having sex with him or that he took her phone as collateral

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for giving her the drug. Dr. Stasney testified that blood was not drawn from the victim for

a toxicology report. Additionally, the appellant did not include Dr. Stasney’s notes about the

victim’s social history in the appellate record for our review. The appellant made no offer

of proof regarding evidence that the victim ingested drugs prior to having sex with him. See

Tenn. R. App. P. 36(a). Therefore, we conclude that he is not entitled to relief.

C. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the conviction

because, although his DNA was found inside the victim, the State failed to prove that their

sexual encounter was anything but consensual. In support of his claim, he contends that

certain physical evidence, such as bruising on the victim’s thighs, “grip prints” on her body,

and sexual trauma, does not exist to support the victim’s testimony that he forced her to have

sexual intercourse. He also argues that, had the trial court allowed the defense to introduce

evidence of the victim’s drug use, he would have been able to demonstrate that she consented

to having sex with him. We determined in the previous section that the trial court did not err

regarding its rulings on the victim’s drug use but will address the remainder of the appellant’s

sufficiency argument.

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).

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).

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As charged in this case, 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, . . . 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).

At trial, the victim testified that the appellant turned off the bedroom light, pushed her

onto the floor, grabbed her from behind, and put his hand over her mouth. He ordered her

onto the bed and took off her underwear. The victim said that she was crying and that she

told him she was having her period. Undeterred, the appellant pulled down his pants,

penetrated her vagina with his penis, and ejaculated. The victim said that after the appellant

left the room and went into the bathroom, she escaped through the bedroom window and ran

to Joe Mayton’s house. Mayton testified that the victim, wearing a shirt but no pants, burst

into his apartment and said she had been raped. Mayton immediately went to the apartment

and “clocked” the appellant. Dr. Stasney testified that he examined the victim and that she

had an abrasion on her back and an abrasion on her upper and lower lips. The victim

complained of painful urination, and Dr. Stasney said the pain could have been caused by

trauma. When confronted by the police, the appellant did not deny raping the victim but said

he could not remember. The jury, as was its prerogative, obviously accredited the victim’s

testimony, much of which was corroborated by other witnesses and the physical evidence.

The evidence is more than sufficient to support the appellant’s conviction.

III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the

judgment of the trial court.

_________________________________

NORMA McGEE OGLE, JUDGE

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