In order to protect the identity of minor victims of sexual abuse, it is the policy of this court to refer to the 1

victims by their initials. State v. Schimpf, 782 S.W.2d 186, 188 n.1 (Tenn. Crim. App. 1989). 

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 2, 2004

STATE OF TENNESSEE v. MARCUS VASHAWN NIXON

Direct Appeal from the Circuit Court for Lauderdale County

No. 7364 Joseph H. Walker, Judge

No. W2003-01909-CCA-R3-CD - Filed September 15, 2004

The Appellant, Marcus Vashawn Nixon, appeals his jury conviction for rape of a child in the

Lauderdale County Circuit Court. As grounds, he asserts that the trial court erred in denying his

motion to suppress pre-trial photo identification evidence based upon a Rule 16 discovery violation.

After review of the record, we find no reversible error and affirm the decision of the trial court. 

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

DAVID G.HAYES,J., delivered the opinion of the court, in which DAVID H.WELLES and ROBERT W.

WEDEMEYER, JJ., joined.

Didi Christie, Brownsville, Tennessee (on appeal); Gary F. Antrican, District Public Defender; and

Julie K. Pillow, Assistant Public Defender (at trial), for the Appellant, Marcus Vashawn Nixon.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.

Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A.

Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

In the early morning hours of July 7, 2002, the Appellant entered the home of Brenda Allen

in Ripley, after Allen had fallen asleep in her car listening to the radio. After entering, the Appellant

approached the nine-year-old victim, L.T., who was asleep on the couch. The victim testified that 1

she woke up and saw the Appellant standing over her, he removed her shorts, and then placed his

“private part” in her “private part.” Allen awoke after hearing the victim’s screams and came into

the house. She testified that she immediately recognized the Appellant and called out to him, but
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he ran out the back door. Allen called the police to report the rape, and officers responding to the

scene spotted the Appellant in the surrounding area, wearing clothes matching the description

furnished byAllen. The Appellant was subsequently arrested at the home of his sister. He later gave

a statement to police admitting that he had had intercourse with a girl in Allen’s home, but he stated

that the girl had initiated the sexual encounter and told him that she was fifteen years old. 

On October 7, 2002, a Lauderdale Country grand jury returned an indictment against the

Appellant charging him with one count of rape of a child. On October 30, 2002, the Appellant filed

several pre-trial motions, including a Tennessee Rule of Criminal Procedure 16 discovery request.

On February 18, 2003, the morning of trial, the State informed the Appellant that they had just

learned of a photo identification made by the victim of the Appellant. At that time, the trial court

conducted a hearing on the motion to suppress the identification, which was denied. 

After a jury trial, the Appellant was convicted of the offense as charged and subsequently

sentenced to a term of twenty-one years in the Department of Correction. His motion for new trial

was later denied, with this appeal following. 

Analysis

The Appellant contends that the trial court erred in denying his motion to suppress the

victim’s photo identification because the State violated Rule 16 of the Tennessee Rules of Criminal

Procedure. Specifically, he contends that the State violated the discovery rule because he was not

given notice of the existence of the photo identification until the morning of trial despite his Rule

16 request for discovery. Further, the Appellant asserts that the State’s failure to comply with the

discovery request hindered his trial preparation and defense at trial by denying him the opportunity

to adequately investigate the circumstances surrounding the identification and argue that it was

impermissibly suggestive. He asserts that his conviction should therefore be reversed. 

Upon request, the State must permit a defendant to inspect, copy, or photograph tangible

objects within its possession, custody, or control which are material to the preparation of the defense

or are intended for use by the State as evidence in chief at trial. Tenn. R. Crim. P. 16(a)(1)(C). Both

the State and the defense have a continuing duty to disclose evidence previously requested and

subject to discovery under Rule 16. Tenn. R. Crim. P. 16(c). When arguing that the State has

violated Rule 16, a defendant bearsthe burden ofshowing “the degree to which the impediments to

discovery hindered trial preparation and defense at trial.” State v. Thomas Dee Huskey, No. E1999-

00438-CCA-R3-CD (Tenn. Crim. App. at Knoxville, June 28, 2002) (quoting State v. Brown, 836

S.W.2d 530, 548 (Tenn. 1992)). 

 Failure by either party to comply with the discovery rule authorizes the court to fashion an

appropriate remedy which “it deems just under the circumstances.” Tenn. R. Crim. P. 16(d)(2); see

also State v. Smith, 926 S.W.2d 267, 270 (Tenn. Crim. App. 1995). The sanction to be applied for

non-compliance must fit the circumstances of the individual case. State v. Cadle, 634 S.W.2d 623,

625 (Tenn. Crim. App. 1982). Thus, in some instances mere inspection may serve to protect a
 The State made no attempt at trial to introduce the victim’s photo identification of the Appellant.

2

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defendant’s interest. In other situations, a continuance may be required to give the accused a chance

to review the State’s previously undisclosed evidence, or the court may be required to exclude the

evidence altogether. Tenn. R. Crim. P. 16(d)(2). However, evidence should not be excluded unless 2

a party is actually prejudiced by the failure to comply with the discovery order, and the prejudice

cannot be otherwise eradicated. State v. James, 688 S.W.2d 463, 466 (Tenn. Crim. App. 1984);

State v. Garland, 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981). Admissibility of evidence is

within the realm of the sound discretion of the trial court. State v. McLeod, 937 S.W.2d 867, 871

(Tenn. 1996). 

The trial court found that the State did have an obligation under Rule 16 to disclose the photo

array from which the Appellant was identified by the victim. However, in denying the Appellant’s

motion to suppress, the trial court found that the Appellant’s late access to the identification did not

result in prejudice. The record reflects that the Appellant was notified of the identification

immediately after the State learned of its existence. 

The trial court’s findings are as follows:

The Court finds that, as far as I’ve been presented under the statement of what the

State intends to present at trial, that the witness; that is, the child, would have an

opportunity to view the criminal at the time of the crime. The jury will make a

determination about the degree of attention and that kind of thing. But the fact that

an adult observed who she believed to be the defendant and provided that name is the

reason that the defendant’s photo was included to the photo ID, plus the fact that the

defendant was discovered shortly thereafter in the same clothes that were described

by the victim, all would go to weight toward the photo ID.

We agree with the trial court that the Appellant has failed to demonstrate that he was

prejudiced by the State’s late disclosure of the identification evidence. At trial, Allen testified that

she immediately recognized the eighteen-year-old Appellant, whom she had known for

approximately twelve or thirteen years. Additionally, Allen described the clothing worn by the

person in her house, which matched the clothing worn by the Appellant when he was arrested shortly

thereafter. Finally, the victim positively identified the Appellant at trial as the person who raped her.

The Appellant argues that had the State disclosed the photographic lineup prior to trial, “more

investigation into the circumstances surrounding the identification by the victim” could have been

made. The Appellant does not suggest what could have been developed or how further investigation

would have negated the positive identifications of Allen and the victim or the Appellant’s statement

that he was present at the house and had intercourse with a girl inside the home. Because we

conclude that the Appellant was not prejudiced by the State’s failure to timely comply with the

discovery request, this issue is without merit. 
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CONCLUSION

Based upon the foregoing, we affirm the Lauderdale County Circuit Court’s denial of the

Appellant’s motion to suppress the photo identification. 

___________________________________ 

DAVID G. HAYES, JUDGE