# FILED
February 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 02C01-9708-CR-00318 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. Carolyn Wade Blackett, Judge DARRELL R. KENNEDY, ) ) (Theft of Property over $1000, two Appellant ) counts; Aggrav ated Rape)
For the Appellant : For the Appellee : Joseph S. Ozment John Knox Walkup Attorney at Law Attorney General and Repor ter 369 North Main Street Memphis, TN 38103 Elizabeth T. Ry an Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
William L. Gibbons District Attorney General Paul Goodman Asst. District Attor

ney General Criminal Justice Comple x Suite 301, 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: AFFIRMED IN PART; VACATED AND DISMISSED IN PART
David G. Hay

es Judge1 The dates of the t wo thefts and the description of the proper ty, “ assorted jewel ry,” are the same under Counts One and Two. Both Counts of the indi ctment charge the same cri minal offense. Tenn. Code Ann. § 39-14-103. The onl y dist incti on between the t wo is that

Count One cha rges “did . . . k now ingly obta in prop erty” a nd C oun t Two char ges “did . . . k now ingly exercise control over pro perty.” The S tate, in its brief, ref ers to the th eft offen se cha rged un der Co unt On e as rob bery. W hile the proo f at trial establish ed the ele men ts of agg ravated robbery, the State ch ose to prosec ute the crim e as thef t.

2 The se tw o sen tenc es w ere a lso or dere d to ru n con sec utively to an ou tstan ding t wen tyfive y ear sentence resul

ting fr om a previous second degree murder con victi on for which the app ellant was on pa role a t the tim e of th e inst ant o ffen ses . As a resu lt, the a ppe llant is curr ently serving an ef

fective sentence of si xty-six years. 2 OPINION
The appellant, Darrell R. Kennedy, was convic ted by a jury in the Shelby Criminal Court of two c ounts of theft of property over $1, 000 1 and one count of aggravated rape. He

was sentenced as a rang e II multiple offender to six y ear sentences for each theft convicti on and thirty-five y ears for the aggravated rape convic tion. Th e trial

court o rdered the sente nces for aggra vated r ape and t heft under Count One to run consecuti vely. This effective forty -one year sentence was then ordered to run concurrent with his Count Two theft conviction. 2 In this appeal as of right, the appellant contends:
I. The trial court’s admis sion of expert testimony c oncerning the results of a DNA analysis violated his constitutional rights to confrontation; and II. The trial court’s admission of testimony relating to a vehicle matching the description of the appellant’s vehicle at the situs of the crimes during the w

eek prior to the date of the instant offenses was irrelevant and, thus, i mproperly admitted.

After a review of the rec ord, the appellant’s conv ictions and sentences for aggravated rape and Co unt One theft of property are affirmed. H owever, the appellant’s remaining conviction and sentence for thef t of property in Count Two is constitutionally infirm under basic principles of double jeopardy. Accordingly, this conviction and sentence must be vacated and dismissed.3 Background

On Novemb er 24, 199 2, two days b efore th e Thanks giving holid ay, twentythree year

old Memphis

State law student Ann Li ghtsey w as workin g the 4:30 p. m. to midnight shift at the law library. At midnig ht, Ms. Lightsey lo cked the doors to the library and began her

short journey home to her Georgian Woods apartment on Union Avenue. After entering her parking “space” at the apartment complex, she proceeded to her front door, leav ing her purse and book bag in her vehicle due to the late hour. While she was attempting to unlock the door to her apar tment, she heard footsteps approaching from behi nd. Someone then grabbed her hair,jerked her head back, and placed a gun against her temple. The assa ilant warned Ms. Lightsey not to scream; advising her that if sh e did, she would be shot. S he was then instructed to open the door.

Once the door was unlocked,the assailant pushed Ms. Li ghtsey into the apartment and asked her where her roommate was. Ms. Li ghtsey responded that her roommate w

as visiti ng her boy

friend and tha

t she expec

ted her to co me home “any minute.” Thinking that the assailant would be deterred, Ms. Lightsey added that her roommate’s boyfriend w ould be accompanying her home.Unswayed, the intruder asked for her purse and her money. In another attempt t o persuade the intruder to leave, Ms . Lightsey informed him that her purse was in her c ar; she offered him her car keys and told him that he could have her car if he would “just leave.” Ignoring the offer, the assailant led Ms. Lightsey to her bedroom, specifically to her dresser where h er jewelry box was located. With the gun still aimed at her head, Ms. Lightsey w

as forced to go through her jewelry box, pi cking out only the “real stuff -- gold,” as

instructed by the assai lant. Ms. Lightsey attempted to look at the assailant’s reflection in the mirror over her dresser, however,he noticed her looking at him and war ned her not to look at him or he would shoot her. Once he4

was satisfied that he had obtai ned all of the valuable jew elry from the box, he then forced Ms. Lightsey to remove all of the jewelr y from her person. The assail ant took “all the jewelry

that [she] could find and all [her ] rings and watches.”

Ms. Lightsey later rep orted th at the int ruder had taken ap proximat ely fifte en piece s of jewelr y, comprised of gold necklaces,rings, and two or three watches, valued at approximately $2500.
With the gun still aimed at her head, Ms.Lightsey was then led into the living room where the assailant forced her to lie on the floor w ith her face against the carpet. T he assail ant again told her n ot to look at him. He instruct ed her to r emove her clothes. Frightene

d, Ms. Lightsey compl ied.
The assailant then forced his victim to perform oral sex upon him. Ms. Lightsey again attempted to look at her assailant. This time she was able to see his stomach and noticed that he “w as a light colored blac

k man.” She was unable to observe his face because he w as wearing a black or dark blue ski mask. The assailant also wore heavy winter gloves.

The assailant then instructed M s. Lightsey to lie o n the floor on her back at which time he penetrated her vagina with his

penis. He asked her “if [s he] had ever had sex with a black

man and if [she] had a boyfriend.” While still laying on the floor, the victim was

sexually penetrated a second time. Throughout the entir e rape, the assailant continuously kissed Ms. Lightsey

on her cheek. When he ejaculated, the assailant did so on a towel that he had previously laid beneath the victim. He then wiped himself and the vi ctim off with the towel. The assailant led Ms. Lig htsey into the bathroom where he tol d her to douche, “to wash y ourself out.” In an effort to avoid destroying potential evidence, Ms. Lightsey pretended to douch e as ordered.5 The assailant again led Ms . Lightsey back into the living room w here he asked her if she was goi ng to call the police. He informed her that he was going to stay outside her apartment, watching to see if she c alled anyone. He unlocked the kitchen door, took the “tele phone off the hook,” and left the apartment. When the appellant left, he took the towel with him. Several minutes after her assailant ’s departure, Ms. Lightsey ran from her apartment to neighbor ing apartments seeking help. Eventually, a ne ighbor opened her apartment door and called “911.”
When Memphis Police Officers arrived, M s. Lightsey descri bed her assailant as a fair-skinned black man, 5'10" to 6' tall, 160 to 175 po unds, and approximately 25-30 years old. She added that the masked intruder attempted to hide his height because he would “hunch ov er.” At the subsequent tr ial, Ms. Lightsey

testified that the appellant had the same character istic type slouch as her assailant.

Between 2:00 a.m. and 3:00 a.m. that mor ning, Ms. Lightsey

was taken to the Memphis Sexual Assault Resource Center where both vaginal and oral swabs were taken to determine the presence of sperm. Margaret Aiken, a nurse at the Center, testified that, although there was no trauma to the vaginal area, “moving sperm were present [up]on microscopic ex amination.”
During the investi gation of this case by Ser geant Bobby Napper, he discovered that sever

al days before the crimes against Ms. Lightsey,Karen O’Kelley, a resident a

t the Georgian Woods Apartments, reported a s uspicious vehicle i n the parkin g lot. Specifically,she reporte d that, when

she arriv

ed home one evening, she observed a strange car in her parking place and she pulled directly behind the vehicle, prev enting it from leaving . The vehicle was an ol der model Cadillac, bright blue in color, like a “blue M&M.” Mrs. O’Kelley observed a “black man” sitting in the dri

ver’s seat of the vehic

le. Mrs. O’Kelley

wrote down the vehicle’s license pl ate number. The following day, Mrs. O’Kelley r eported the3 The robbery charge against t he appellant was eventuall

y dismissed because of misidenti ficati on and confessions by the true pe rpetrato rs.

6 incident to apartment manager Shi rley Moses Cutliff, w ho turned the information over to the police.
In February 1993, the appellant was developed as a suspect in a jewelry store robbery in the Oak Court Mall. The officer in c harge of this investigation was Sergeant George Maxwell. On February 12, 1993, with the assistance of Officers Tom Arnold and Corey Hale, Sergeant Maxwell arrested the appellant at his 435 Webster Street residence. 3 At the time of t he arrest, the a ppellant was driving a 1978 bright blue Cadill ac. The appellant’s girl friend, Thelma Baker, provided law enforcement officers consent to search the house. A search of the residence uncovered several items of jewelry. At this point, the appellant was not a suspect in the crime s against M s. Lightse y.
During this same period , Sergeant Bobby Napper, the officer in charge of investigating the rape of Ms. Lightsey, was temporarily assigned to the robbery division. Sergeant Napper asked Sergeant Maxwell if he could look at the jewelry seized from 435 Webster. On February 20,1993, Sergeant Napper contact ed Anne Lightsey to examine items of jewelry recovered from the appellant’s residence. Ms. Lightsey identified tw

o items recovered as belo nging to her. Durin g a trip to Mexico , Ms. Lightsey had purc

hased a distinctive li ght blue stone and, upon return from her vacation, had had the stone mounted. Because of the irregular s hape of the stone, the setting, which w

as made by a friend’s father, w as unusual in that the ring sat up high on the finger and the ston e “was loose and it w ould kind of jiggle.” Ms. Lightsey testified that she was “abs olutely positive”

that the ring belonged to her. The second ring was a gift from M s. Lightsey’s mother.The ring was silv er and dome shaped with overlapping etching on the front. The ring, originally too small for her finger, had been stretched to fit. Because the metal was weak w here it had been7

stretched, the ring had been twice broken and had been re paired. The ring recovered from the appellant’ s residence had the breaks i n the same place.
After Ms. Lightsey’s

identification of the jewelr y, the appellant was ar rested for the rape and theft. Sergeant Napper requested that the appell ant provide body samples for DNA testing, ho wever, the appellant r

efused. A search warrant w as subsequently obtained to c ollect hair, blood, and sal iva samples from the appellant. These samples along with the samples obtained from the victim at the Memphis Sexual Assault Resource Center were ultimately sent to the FBI DNA Analysis Unit in Washington, D.C. Special Agent John Quill led the te am conducting the DNA analysis in this cas

e. The analysis reveal ed that, in all four locations observed, the DNA from the vaginal spec imen taken from Anne Lightsey mat ched the appellant. Specifically, Special Agent Quill concluded that “the chance of an unrelated individual at random in the population having a pr ofile at all four of these locations matching that of [the appellant] is one in nine million in the Black population, one in two million in the Caucasian population, and one in one million in the Hispanic population.” Thus, he concluded that the DNA profiles match those of the defendant to a reaso nable de gree of sc ientifi c certain ty.
In his defense, the appellant presented th e testimony of Thelma Baker. Ms. Baker testified that she o wned a barbe r shop/bouti que called “Bare Essen ce.” To obtain merchandise for her business, she and the appellant often frequented jewelry shows. She stated that she and the appellant had attended one such j ewelry show on January 30 through Febr uary 2, 1993, at the Cook C onvention Center.
The appellant took the stand in his own defense. He adamantly deni ed committing any of the offenses for w hich he was charged. When asked whether he recognized the rings that Ms. Lightsey had identified as those taken from her apartment, he stated that he had purcha sed the two rings at the Cook Convention4 Age nt Qu ill’s tes timo ny rev ealed that h e is a tw enty-f our ye ar ve teran of the FBI a nd, in 198 9, wa s as sign ed to the D NA A nalys is Un it of the FBI L abo rator y. He h olds a Ba che lor’s Degre e in biology an d a Ma ster of F orensic Scienc e Deg ree from Georg e W ashingto n Univer sity. He has testif ied approxi mately 125 t imes as an expert i n the fie ld of DNA analy sis and identi ficati on.

5 The p rocedu re utilized by the F BI labora tory is know n as the R estriction F ragm ent Leng th Polymorphism (RFLP) m ethod of DNA an alysis. Although the specifics of the procedure are abbreviated in the pr esent case, t his court p rovided a t horough and comprehensive expl anation of the RFLP method in State v. Chapman , No. 01C01-9604-CC-00137 ( Tenn. Crim. App. at Nash ville, Sept. 30, 1 997), perm. to appeal de nied , (Tenn. May 11, 1998). 8 Center at two different jew elry shows. Speci

fically, he testified that he had purchased the blue stone ring at the February 1993 jew elry show and the si lver dome ring at a jewelr

y show held prior to November 25, 1992, the date of the present offenses. The appellant expla ined that he had “cut this ri ng to put on [Baker’s] finger so she c ould fit her finger.” Despite this assertion and his claim that he and his girlfriend ret ained receipts for all of their jewelry purchas

es, the appellant was unable to produce any such receipt for either r ing at trial. The appellant admitted that he owned a bright blue 1978 Cadillac with a “peanut butter color” custom top. Although he stated that he did not purcha se the Cadillac until December 1992, he conceded that he had dr iven the automobile on sev eral occasions prior to the pur chase.
Based upon this evidence, the jury convicted the appellant of one count of aggravated rape and tw o counts of theft of property over $1000.

I. Right to Confrontation A. Background Special A gent Quill , assigned to the DNA Analysis Un it of the FBI labor atory, testified on behalf of the prosecution as an expert “in the field of DNA analysis and identification.” 4 He explained in detail the FBI’s procedures for tes ting and analyzing DNA samples, as well

as defining the quality

controls in place at the F BI laboratory. Special Agent Quill summarized the procedure 5 utilized by the FBI laboratory in seven simple steps:9 (1) DNA is extr

acted from the cellular material, e.g. , the blood or semen sample. (2) The DNA is cut into fragment lengths. (3) The fragments are placed i n a gelatin-like subst ance, agarose, and a negative charge i s run through the gel, c ausing the DNA to migr ate to the positive side. (4) The DNA is transferre d from the gel to a nylon membran e. (5) The membrane is placed into a solution with pieces o f DNA that give off light. The DNA fragments will migr ate to a specific location of interest, attaching themsel ves to that location on the membrane. (6) The membrane is cleaned of any residual material and is placed between tw

o sensitiv

e pieces of x

-ray film. (7) The film is developed and the supervising ag ent interprets, both visually and with the assistance of a computer, the resulting autorads developed from the DNA samples from the suspect and the forensic sample taken from the vic tim. Special Agent Quill tes tified that he was the agent assigned to the present case and he personally al located the laboratory number 30311060 to the samples received. He conceded on cross-examination that he personally did not prepare the samples for evaluation, r ather the mechanical preparati on of the autorads was conducted by his laborator y technician, whose work he evaluated. N otwithstanding the mechanical procedures performed by the techn ician, Special Agent Quill testified that “[he] is responsible for the case,” “[he] dete rmines what specimens will be run,” and that “[he has] safeguards for each pha se of the test that [he] review[s] to insure that was done and done correctly.” Spec ial Agent Quill also explained that the procedure utilized b y the FBI is self-v

alidating, i.e. , “if there are any other bands in the cell line control , I will not interpr et the work because somethin g is wrong. The probe is contaminated.”
The appellant, in his initial assignment of error, arg ues that his constitutional guarantee of the right of confrontati on was violated by admission into evidence of the results of the DNA profile test through the testimony of Special Agent Quill, the10

laboratory supervisor, instead of through the laboratory technician who actually performed the mechanical aspects of the an alysis procedure.
B. Analy

sis The Constitution of the United States provides the accused in a criminal prosecution the right “

to be confronted with witnesses.” U.S. C ONST . amend. VI. The Tennessee Constitution provides the right “to meet witnesses fa ce to face.” T ENN
. C ONST . art. I, § 9. The import of these g uaranties is threefold: (1) to have the witn ess testify under oath and subj ect to the penalties for perju ry; (2) to enable the fact-finder to obs erve the manner or demeanor of the witness and assess his or her credibility; and (3) to have the witn ess available for cross -examination.
See Ohio v. Roberts , 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38 (1980) (internal quotation omitted); California v. Green , 399 U.S. 149, 158, 90 S.Ct. 1930, 1935 (1970); State v. Hughes , 713 S.W.2d 58 (Ten n. 1986). Notwithstanding these objectives, courts hav

e been quick to recogni ze that there are competing interests that may warrant dispensing with confrontati on at trial. Ohio v. Roberts , 448 U.S. at 63-64, 100 S.Ct. at 2537-38. In other words, the rig ht of confrontation is not absolute and must occasionally give way to c

onsiderations of public polic y and necessities of the case. See Jenkins v. State , 627 N.E.2d 789, 793 (Ind. 1993). Thus, the United States Supreme Cour t has repeatedly refused to appl y a literal interpretation of the Confrontation Clause as doing so would bar the use of any outof-court sta

tements (hear

say) whe n the declar

ant is unav

ailable, cr

eating ext reme and unintended results. Idaho v. Wright , 497 U.S. 805, 814, 110 S.Ct. 3139, 3145 (1990); see also Sherman v. Scott , 62 F.3d 136, 140 (5th Cir. 1995), cert. denied , 516 U.S. 1180, 116 S.Ct. 1279 (1996).
The Tennessee Supreme Court has prev iously had occasion to add ress the standar ds and cr

iteria that mus

t be met i n order for out-of-cour t statem ents to s

atisfy the Confr

ontatio n Clause of both the Sixth Amendment of the United St ates6 Tenn essee is not alone in providing th is excep tion to the crite ria deem ed nec essary to satisfy the C onfron tation Clau se. See Bourjaily v. Uni ted States , 483 U.S. 171, 182-183, 107 S.Ct. 277 5, 2782- 83 (198 7); Ohio v. R oberts , 448 U.S . at 66, 100 S.Ct. at 25 39; United States v. Roulette , 75 F.3d 418, 422 (8th Cir. 19 96), cert. deni ed , -- U.S.--, 11 7 S.Ct. 14 7 (1996 ); United States v. Baker , 855 F.2 d 1353 , 1359 (8 th Cir. 198 8), cert. deni ed , 490 U.S. 1069,109 S.Ct. 2072 11 Constitution and Article I, Section 9 of the Tennessee Constitution. See State v. Armes , 607 S.W.2d 234, 236 (Tenn. 1980); State v. Henderson , 554 S.W.2d 117 (Tenn. 1977). In State v. Henderson , our supreme court recognized that valid claims of an unconstitutional abridgement of the right to confront witnesses arise when: (1) the hearsay evi dence is crucial to prov ing the State’s case, i.e. , the evidence is offered to prove an essential element of the crime or it connects the defendant directly to the commission of the crime; (2) there is no proof that the w itness is unavailable, i.e. , the State must make a good faith effort to secure the prese nce of the person whose statement is to be offered against the defendant; and (3) the hearsay evi dence is lacking its own indicia of reliabil ity.
Henderson , 554 S.W.2d at 120. See also Armes , 607 S.W.2d at 237; State v. Oody , 823 S.W.2d 554 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1991); State v. Carpenter , 773 S.W.2d 1 (Tenn. Crim. App. 1989); State v. Arnold , 719 S.W.2d 543 (Tenn. Crim. App. 1986). Cf. Stewart v. Cow an , 528 F.2d 79 (6th Cir. 1976).
Notwithstanding the c

onstraints imposed by the Henderson tripartite test, the United States Supreme Court has held that a demonstration of avai lability (part 2 of the Henderson test) is not alway s required. Ohio v. Roberts , 448 U.S. at 65, n. 7, 100 S.Ct. at 2538 n. 7; Sherman v. Scott , 62 F.3d at 140. Indeed, in Whit e v. Illinois , 502 U.S. 346, 354, 112 S.Ct. 736, 741 (1992), the Court held that Ohio v. Roberts stands for the proposition that unavailability anal ysis is a necessary

part of the Conf rontatio n Clause i nquiry onlywhen the challenged out- of-court statements were made i n the course of a prior ju dicial pro ceeding. M oreover, o ur supreme court has also recogniz ed that “firmly rooted ex ceptions to the hearsay r ule do not violate the Confrontation C lause.” 6 See State v. Causby , 706 S.W.2d 628, 631(1989). But see Barne s v. State , 704 So. 2d 487, 494-496 (Ala.Crim. App. 1997) ( introduction of lab report

without requiri ng presence of techn ician who wr ote report

violat ed both Due Process Clause and Co nfrontation Clause ); State v. Clark , 964 P.2d 766, 770 -772 (M ont. 1998)(int roduction o

f lab repor

t withou t requiring presence of technici an who wrote repor t viol ated both Confrontation Clause and D ue Process C lause).

7 In Causby , 706 S.W.2d at 631, t he Tennessee Supreme Court held t hat the t hird prong of the Henderson-Armes requirem ent for co mplying w ith the con frontation c lause, i.e. , that the evidence not be crucialor devastat ing, i s not requi red in th e case of wellestabli shed hearsay excep tion such as form er testim ony. Id. at 631, not e 1 (citi ng Mancusi v. Stubbs , 408 U.S. 204, 92 S.Ct. 2308 ( 1972) and Ohio v. R oberts , 448 U.S. at 56, 100 S.Ct. at 2531). 12 (Tenn. 1986); see also State v. Hester , No. 03C01-9704-CR-00 144 (Tenn. Cr im. App. at Knoxville, June 4, 1998) (ci ting State v. Alley , No. 02C01-9405-CC-00100 (Tenn. Crim. App. at Jackson, June 18, 1997), perm. to appeal denied , (Tenn. Mar. 2, 1998); State v. Lillard , No. 01C01-9602-CC-00051 ( Tenn. Crim. App. at Nashvi lle, Feb. 12, 1997)). The rationale for this principle is bas ed upon the premise that some forms of admissible hearsay rest upon such solid foundations that admission of virtually any evidence within them c omports with the rig ht of confrontation. See Ohio v. Roberts , 448 U.S. at 66, 100 S.Ct. at 2539; Causby , 706 S.W.2d at 631 (Tennessee Supreme Court holds that form er testimony hearsay exception is such firmly established rule and so inherently reliable that any such evidence necessarily comports with right

of confrontation.). 7 Indeed, statements admitted under a f irmly rooted hearsay exception are so inherently trustworthy that adversarial testing would add little to their reli ability. In other w ords, a hearsay exception will satisfy the Confrontation Clause if the declar ant’s truthfulness is so cl ear from the surrounding circumstances that the test of cross-examination wo uld be of marginal utility

. Idaho v. Wright , 497 U.S. at 820, 110 S.Ct. at 3149

.
In the present case, the testimony of Special Agent Quill was clearly admissible under Tenn. R. Evid. 702, which provides: If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to dete rmine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training , or education may testify in the form of an opinion or otherwise. Rule 703, Tenn. R. Evid., contemplates three possible sources f rom which an expert may base his/her opinion: (1) information actually perceived by the ex

pert; (2)13

information made known to the expert by others; and (3) informat ion reasonably relied upon by experts

in the particular field. See Tenn. R. Evid. 703; see also N EIL P. C OHEN , ET
. AL ., T ENNESSEE L AW OF E VIDENCE §§ 703.2, 703.3, 703.4 (3d ed. 1995).
Clearly, Rule 703 contemplates that inherently reliable information is admissible to show the basis for an expert’s opinion, even if the informa tion would otherwise constitute i nadmissible hearsay. See Tenn. R. Evid. 703. Indeed, it is not uncommon for an expert witness’s opinion to be based on facts or data that are not admissible into evide nce, but are reliable. See N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE § 703.4. In determining the r eliability of the underly

ing information, that underlying data must be such that experts in that field reasonably rely on them in forming the same kinds of opinions or inferen ces that the expert in this case did. Id. Thus, Tenn. R. Evid. 703 prov ides that an expert may ba se an opinion upon clearly inadmissible hearsay, if the type of hearsay is one that would be reasonably relied upon by experts in that si tuation.

In the case before us, the laborator y technician’s parti cipation was limited t o the mechanically objective preparatory procedure required for Special Agent Quill’s ultimate interpretation and anal ysis of the autoradiographs. Quill checked the computations of the technician and v erified that the technician w ould have followed the standard laboratory pr ocedures. See, e.g. , Sherman v. Scott , 62 F.3d at 142. Furthermore, Quill ex

plained that the procedures ar e generally accepted w ithin the scienti fic commu nity as

reliab le and th at the re sultin g autor

adiogr aphs areselfvalidating, i.e. , if an error would have occurred during the preparatory phase, Quill would not have been able to complete his analysis. Special Agent Quill w as justified in his reliance on the preparatory procedures performed by the laboratory technician. The laboratory reports contain the partic ularized guaranties of trustworthiness to k

eep them from violating a defendant’ s rights under the8 W e not e tha t ma ny sta te an d fed eral c ourts have adm itted te stim ony sim ilar or analogous to that admitted i n the case sub judice under a Confronta

tion Clau se challenge based upon the ground t hat the “busi ness records” except ion is such a firmly establi shed and well- rooted excep tion that no v iolation of the Confro ntation C lause wo uld occu r. See, e.g. , United States v. Ism oila , 100 F.3 d 380, 39 2 (5th Cir. 1 996), cert. deni ed , -- U.S. --, 11 7 S.Ct. 17 12 (199 7); Minner v. Kerby , 30 F.3d 1311 ( 9th Cir. 1994) (int roduction o f chemist’s not

es through superv isor not violative of C onfron tation Clau se); United Stat es v. Baker , 855 F.2d at 1360 (business r

ecords exception, is firmly rooted hearsay exception to prevent violation of Confrontation Clause); Reardon v. Manson , 806 F.2 d 39 (2d Cir. 1986 ), cert. deni ed , 481 U.S. 1020, 107 S.Ct. 1903 (1987) (chemist r

eport int roduced through t estimony of super

visor prope rly ad mitted suffi cient indicia of reliab ility); People v. Vega , 639 N.Y.S. 2d 511, 513-514 ( A.D. 3 Dept. 199 6) (int roduction of technici an’s notes under business records exception re ndered techni cian’s t estimony unnec essary w here su pervisor a ctually analyzed sam ples); State v. Fo ntenette , No. 5 901 4 (O hio App. Sept. 19,1991) (test imony by l aboratory supervisor regarding DNA profi le properl y admitted under business record s exception did not violate Confrontation Clause).

Notw ithsta nding the a ppa rent a cce ptan ce of utilizing this h ears ay exc eptio n, this cour t is reluctant to apply the bu siness records excep tion to the tes timony a t issue in the presen t case. 14 Confrontation Clause. Additionally, the defense was able to th oroughly crossexamine Special Agent Qui ll as to the samples, procedur es, safeguards, and results reached in the present case. Special Agent Quill’s testimony was proper

ly admitted under Tenn. R. Evid. 703 and in no way violated the appellant’s right to confrontation. Accord Gray v. State , No. 96-DP-00241-SCT (M iss. Aug. 6, 1998) (defendant’s confrontation rights were not violated by admission of DNA expert’s testimony even though some portions of testing were conducted by other persons in expert’s laboratory; expert was individual who evaluated autoradiographs and did sizing procedure) ; State v. Daughtry , 459 S.E.2d 747, 758-59 (N.C. 1 995) (testimony of Special Agent regarding results of DNA testing did not v iolate defendant’s right to confrontation althou gh another agent actually performed DNA analysis under witness’ direct supervision; witness reviewed agent’s final reports, rendering report inherently reliable and allowing testifying Agent to use it to form his opinions); State v. Futrell , 436 S.E.2d 884, 892 (N.C. App. 1 993); State v. Hutto , 481 S.E.2d 432, 434-35 (S.C. 1997) (confrontation clause does not for bid reliance at trial by experts upon material prepared by others). Cf

. United States v. Smith , 869 F.2d 348, 355 (7th Cir. 1989) . Accordingly, w e conclude that the admission of an expert’s opinion based on h earsay evidence not i n itself admissible does not v iolate the Confrontation Clause of either the United States nor the TennesseeConstitutions so long as the expert providing the opinion is available for crossexamination. 8Bus ines s rec ords are d eem ed re liable b eca use they a re pre pare d for othe r use s and are o nly incidenta lly prepared f or purpo ses of litigation

. See Henderson , 554 S.W.2d at 120 (quot ing People v. Hobson , 119 N.W.2d 581, 588 (Mich. 1963)). The DNA analy sis prepared i n the presen t case w as for no other pu rpose b ut this litigation, calling in to ques tion the rep ort’s reliability as a bu siness record. See Hester , No. 03C01-9704-CR-00144. 15 II. Admissibility of Testimony A. Background The appellant argues that, becaus e no evidence was ev

er introduced connecting the blue Cadill ac observed by Mrs . O’Kelley to the appell ant’s blue Cadillac, this testimony was irrelevant and prejudicial. Moreov er, because the State failed to have Mrs. O’Kel ley identify the sli p of paper upon which she trans cribed the license plate number, Mrs.Cutliff and Officer Maxwel l were allowed to testify to hearsay information. The appellant complains th at this evidence was unduly prejudicial to his case

as it allowed the jur

y to speculate that he w as in the apartment complex prior to the rape and theft offenses. The appellant also c ontends that the trial court err

ed by refusing to hold a j ury out hearing to deter mine the admissib ility of th is testim ony.
B. Analy sis 1. Jury-Out Hearing During the trial, defense counsel continuously requested that the trial court hold hearings on matters r elative to this evi dence out of the presence of the jury

. The trial court denied this request. Tenn. R. Evid.104(c) provides that w hen the trial court must resolve ev

identiary matters a hear ing is appropriate. The r ule further prescribes that a hearing held out of the presence of the jury is only mandated when the questioned evidence ( 1) involves the admis sibility of a confession; ( 2) involves the testimony of the witnes s-accused; or (3) w

hen required by the “i nterests of justice.” SeeTenn. R. Evid. 104(c); N EIL P. C OHEN ET
. AL ., T ENNESSEE L AW OF E VIDENCE , § 104.3. Absent such circumstances, the question as to whether a hearing out of the jury’ s presence is requir ed is within the discretion of the trial court. See Advisory Commission Comments, Tenn. R. Evid. 104. As such, the trial court’s16

refusal to conduct a jury out hearing in the present c ase was not an abuse of the court’s discretion.

2. Relevancy of Testimony Regarding Suspicious Vehicle The determination of whether proff ered evidence is relevant in accordance with Tenn. R. Evid. 402 is left to the discretion of the trial judge, State v. Forbes , 918 S.W.2d 431, 449 (T enn. Crim. App. 1995), as is the determination pursuant to Rule 403, Tenn. R. Evid., of whether the probative value of evidence is substantially outweighed by the poss ibility of prejudice. State v. Burlison , 868 S.W.2d 713, 720- 721 (Tenn. Crim. App. 1993). See also State v. Williamson , 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). In maki ng these decisions, the tr ial court must consider the questions of fact that the jury will have to consider in determining the accused’s guilt as well as other evidence that has been i ntroduced during the cours e of the trial. Williamson , 919 S.W.2d at 78.
Relevant evidence is any evidence having a tendency to make the existence of any fact that is of consequence to the determ ination of an action more probable or less probable than it w ould be without the evi dence. Tenn. R. Evid. 401. I n certain ci rcumstances , however, proffered ev idence is l ogically

relevant o nly if some other fact exists. That is,the relevancy of an item of ev idence depends upon the existence of a particular preliminary fact. In su ch circumstances, the tri al judge may admit such evidence conditi oned upon the subsequent introduction of proof sufficient to support a finding of the pa rticular preliminary fact. Tenn. R. Evid. 104(b). See also Tenn. R. Evid. 901. If the su bsequen t proof f ails to es tablish r elevancy, the conditionally admitted evidence must be stricken with an appropriate jury instruction. See Advisory Commiss ion Comments, Tenn. R. Evid. 104

.
At trial, Mrs. O’Kel ley, a resident at the Geor gian Woods Apartments, testified that, during the week pr ior to the offenses against Ms.Lightsey, she observ ed a17

suspicious vehicle i n her parking place outsi de of her apartment. She stated that she saw a black male sitting in an unusual “blue M & M” color late model Cadillac. She also stated that she wr ote the license plate number of the c ar on a piece of paper and turned it into the apar tment manager, Mrs. Cutli ff. Mrs. Cutliff identified the piece of paper containing a l icense plate number that she g ave to Officer Maxwell of the Memphis Police Department.
The testimony of Mrs. O’Kell ey regarding the pr esence of an unusual color blue late model Cadillac oc cupied by a black male is only relevant to est

ablish the identity of the appellant and hi s preparation for the instant offenses if the proof sufficiently connects the automobi le and/or the identity of the d river to the appellant. The trial court, apparently, permitted the introduction of thi s testimony conditioned on the fact that the State would subsequently connect the susp icious automobile observed by Mrs. O’Kelley to the automobile owned by the appellant. This connection was never made.

At trial, Mrs. O’Kel ley was unable to identify the driver of the bl ue Cadillac parked in her parking pl ace. Additionally, the S tate failed to ask her whether the blue Cadillac observe

d at that time matched the blue Cadi llac driven by the appellant; never attempted to i ntroduce the piece of paper upon w hich she wrote the license plate number; and failed t o asked her what licens e plate number she obtained from the suspicious blue Cadillac. The State subsequ ently introduced the piece of paper through the testi mony of Mrs. Cutliff and Officer Ma xwell for purposes of identification only and, although Officer Maxwell testified that the license number recorded on the paper belonged to the vehicle owned by the appellant, the State, as noted by the trial court , failed to lay a proper foundati on for this information. The State never provided th e proper foundation necessary to admit the paper into evidence and the trial co urt neglected to rule on i ts ultimate admissibilit

y. Thus, the paper was improperly

considered as substantiv e proof by the jury. See Tenn. R.18

Evid. 901. Consequently, Mrs. Cutliff’s and Officer M axwell’s testimony regarding the license plate number consti tuted hearsay and should not hav e been admitted. Tenn. R. Evid. 801 and 802. As such, the State failed to sufficiently connect the conditionally admitted ev idence, i.e. , Mrs. O’Kelley’s testimony, with the appellant’s automobile. Accordingly, the trial court should have stricken Mrs. O’Kelley’s testimony from the record and i nstructed the jury to di sregard the same.
Regardless of the trial court’s error in admitting the testimony, w e conclude that, considering the legitimate testimony regarding DNA evidence identifying within a scientific certainty

that the appellant was the pe rpetrator of the rape and the appellant’s possession of the v ictim’s jewelry, the error in admitting testimony regarding the suspicious blue car was harmless beyond a reasonable doubt and did not affect the outcome of the trial. Tenn. R. C rim. P. 52(a). This iss ue is without merit.
III. Double Jeopardy
The indictment, in the present cas e, charged the appellant w ith two counts of theft of property over $1000. Specifically, Count One of the indictment charged the appella nt of un lawfully an d knowingly obtaining property, to wit: jewelr y valued over $1000; a nd Count Two charge d the app ellant of unlawful ly and knowi ngly exercising control over property, to wit: jewelr y valued of $1000. The jury found the appellant guilty as to both counts . Upon review of the ev idence and in order to find the evidence sufficient to support a guilty verdic t on Count Two, we can r each no other conclusion than the same evidence was used to support both convictions.

The United States and Tennessee Consti tutions protect the accused from being twice placed i n jeopardy for the same offense. U.S. C ONST . amend. V; T ENN
. C ONST . Art. I, Sec. 10. As our s upreme court has stated on many occasions, three9 Under the pre-1989 Criminal Code, se parate convi ctions for larceny and conceali ng stolen pro perty arising f rom the sam e crim inal transa ction cou ld not stan d. See State v. Garland , 617 S.W .2d 176, 179 (Tenn. Crim . App. 1981). 19 fundamental principles underlie the constitution al protections against double jeopardy: (1) protecti on against a second prosecuti on after an acquittal; (2) protection against a second prosecution after conviction; and (3) prote ction against multiple punishments for the same offense. See State v. Lewis , 958 S.W.2d 736, 738 (Tenn. 1997); State v. Denton , 938 S.W .2d 373, 378 (T enn. 1996) (citi ng North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 2076 (1969)).
The instant case implicates the principle protecting against multiple punishments for the same offense. The double jeopar dy concerns in the prese nt case were not raised in the trial court. Although the general rule is that this court does not consider issues that are not raised in the tri al court, plain error is a proper consideration for an appellate c ourt whether properly

assigned or not. State v. Ho yt , 928 S.W.2d 935, 946 (Tenn.Crim.App. 1995). Thus, we address the issue in order to correct an error of cons titutional dimension and to pr event manifest injustice. Tenn. R. Crim. P. 52; Lewis , 958 S.W.2d at 738.
In 1989, all the prior forms of la rceny, and all of the recei ving and concealing stolen property offenses wer e combined into a single offense know n as “theft of property.” 9 State v. Hough , No. 03C01-9404-CR-00143 ( Tenn. Crim. App. at Knoxville, June 13, 199 5). Indeed, the new offense of theft “constitutes [but] a single offense embracing the separate offenses heretof ore known as: embezzlement, false pretense, fraudulent conversion, lar ceny, receiving

/concealing stolen property, and other similar offenses.” See Tenn. Code Ann. § 39-14-101 (emphasis added).
Clearly, from the plain l anguage of the theft offenses, theft by obtaini ng and theft by exercising

control are the “same offense.” M oreover, from the facts20

present ed at tria l, the sam e evidenc e was used t o suppor t both co unts. Th us, we conclude that the two separ ate convictions regar

ding the theft of jewelry from the victim’s apartment constitute double jeopardy. As the appellant may only be convicted of one theft offense, the appellant’ s conviction and sentence for Count One: theft by obtaining is affirmed, however, the appellant’s con viction and sentence for Count Two: theft by exer cising control is v

acated and dismissed.

Conclusion
For the foregoing reasons , the appellant’s convic tions and sentences for aggravated rape and Co unt One theft of property by obtai ning are affirmed. However, the appellant’s conviction and sente nce in Count Two for theft by exercising control

is hereby dismissed and vacated as violativ

e of constitutional protecti ons again st double jeopardy.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________ JOE G. RILEY, Judge

__________________________________ JOHN EVERETT W ILLIAMS, Judge