### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs F eb ru ar y 6, 200 7

STATE OF TENNESS EE v . WI LLI AM PHIL LI P GRAHAM

Appeal f rom the Circ uit Court for Madison Cou nty No. 03-154 Donald H. Allen, Ju dge

No. W2006-00173-C CA-R 3-CD - F iled Augu st 22, 2007

Th e de fe nd a nt, Willi am P hi ll ip Gr aham, w a s c on vic te d o f a g g ra vate d r a pe , a Cla ss Afe lony , at a jur y tr ia l in the Ma dis on County Cir c uit Court

. He is pr e se ntl y se rv ing a tw e nty -y e ar s e nte nc e a s a Vi ole nt O ff

e nd e r i n th e De pa

rtme nt o f C or

re c tio n. I n th is ap pe a l, he argue s 1) that th e e vid e nc e is insufficient to support his conviction; 2) that the trial c ourt err ed in deny ing his pe tition t o compel attendanc e of a

n out-of-state witness; 3) that the trial cour t made er roneous r ulings duringthe trial relative to the scope of

redire ct examination of a state’ s witness; 4) that the cour t erre d in denying his re qu e st t o ma

ke an o ff e r of pro of aft er a

n a dv e rs e e vid e nti ary

ru lin g ; 5) that th e c ourt

e rr e d in

a llo wi ng th e st ate to rec a ll the vic timduri ngits c a se -i n- c hie f; and 6) tha t th e tr ia l c ourt

e rr e d in denying the defe ndant’s re quests for c urative instruc tions relative to two aspec ts of the prose cutor’s closing argument. We conclude that no reve rsible er ror occurr ed, and we af

firm the judg ment of the
tr ia l c ourt

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , P.J
., delivere d the opinion of the court, in which J OHN E VE R E TT W I L L I AMS and D. K EL L Y T HOMAS , J R ., J J ., joined.

Geor g e Morton Goog e, District Public Defe nder, a nd J oseph T. Howe ll, Assist ant Public Defe nder, fo r t he a pp e lla nt, Willi a m Ph ill ip G ra

ham.
Robert E. Cooper, Jr.
, At torney Gene ral a

nd Reporter ; Cameron L . Hy der, A ssistant Attorney Gene ral; James G. (J err

y ) Woodall, District Attorney Gene ral; and Shaun A lan B rown, Assistant District Attorney

Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

The de fenda

nt was eig hteen y ear s old at t h e time he committed his crime ag ainst a thenfourtee n-y ear -old victim. He wa s char g ed with ag g ravated ra pe and statutory

rape

.-2-

The victim testified that she wa s at Arlene L ay ne’s house on the eve ning of J une 4, 2002, beca use she wa s g oing to ba

by sit Ms. L ay

ne’s c hi l d re n when Ms. L ay ne we nt to work ea

rly the following morning . She sai d that she ar rived a bout 6:00 p.m. and that after about an hour

the defe ndant, who lived ac ross the stree t, asked he r t o come to his house t o drink alcohol with him. She said she and Ms. L ay

ne’s thirtee n-y ear -old son, T.L ., acc ompanied the defe ndant t o his house. The victim testified Ms. L ay

ne said that she was g oing to g o to sleep and that she would leave the door
op e n f or the m.

Th e vic timsa id t

he de fe nd ant g a ve he r mixe d d ri nk s c on ta ini ngB a c ard i. S he sa id s he did not know how many

drinks he g ave he r, but it was “[p]robably about two or thre e. ” She said the defe ndant and T.L . wer e drinking as we ll. She said that befor e she star ted drinking , she cut he r foot

o n a b roken shot glass and that the defe ndant g ave he r a r ag beca use her foot was blee ding. T he victim said the defe ndant’s sister, Ama nda, ca me to the house for

about thirty

minutes or an hour. The victim s ai d Amanda c alled the de fenda nt’s and her

mother and r eporte d that the others we re dri n k i n g.

The victim testified that she stopped drinking and had be come tire d and that she attempted to leave the defe ndant’s home. She said that she re ache d for the door but that the defe ndant g rabbe d her, thre w her

acr oss the living room floor, and told her she was not leaving

. She said the def endant forc ed her into his mother’s bedroom and confine d her by closing the door. She said the def endant went bac k to the living room, whe re T.L . was using a computer . The victim said that s h e tried

unsucce ssfully

to ge t out of the room throug h the window but that th e d ef en d an t returne d to the
room, p u ll e d h e r f

r o m th e w in d o w , an d p u t h e r o n th e b e d

. Sh e s a id h e to ld h e r to ta k e o f f her clothes and then forc ibly remove d them as the two foug ht. The victim sa id that the defe ndant left the room bri efly

afte r telling her to re move her clothes, but she did not specify in her testimony exactly when this took place in relation to the st rug g le. The victim said she scr eame d and foug ht the defe ndant, who hit her on he r fa ce a nd body with hi s fi s t an d t o l d her to “ shut up.” She said the defe ndant pene trated he r vag ina with his penis without her consent. She said that she told him “no” but that “[h] e told me he wa s g oing to g et it either wa y .” She said that the penetration lasted fifte en to twenty minutes and that afte r it was over , the def endant told h er t o get d resse d and that he w as g oin g to t a ke he r a

nd kil l he r. She sa id t

he de fe nd ant l e ft

the ro om.

Th e vic timte sti fi e d s he g ot d re sse d, we nt int o the liv ing ro om, and a sk e d T.L . howhe c ou ld let the def endant do this to her. She sa id the defe ndant pulled her by her ha ir to his car a

nd took her to her house. She said she went to the front door of her house, beat on it, a nd scre amed until her a

unt let her inside. She r eporte d the cr ime to the police and submitted to a medic al examinati o n that nig ht.

The victim descr ibed h er injuries from the attack as inc luding a black e y e, a br oken blood

ve sse l in he r e y e , a blo od y no se , a “ bu ste d” lip , b ru ise s, and ble e din g fr om a

bit e mark on he r b re a st. Th e vic timsa id t

hat a ll o f h e r i nju

ri e s h a d h e a le d e xce pt t

hat sh e ha d a

sc ar o n h e r b re a st.-3-

On questioning by

the def ense, the victim denied t hat she said, “ L et’s g et drunk,” to the defe ndant. She admitted she ha d co n sumed alcohol onc e or twic e bef ore that evening , but she claimed she was “ not a drink er

. ” She later a dmitted that she had consumed a lcohol “about f our times” befor e that eve ning. She sa id she was “ buzz ed” but not drunk on the night of the cr ime. She said she did not r emember telling a nurse to whom she ta lked af ter the attack that the de fenda nt had fo rc e d h e r t o d

ri nk a lc oh ol. Th e vic timwas un cer ta in b ut t ho ug ht s he le ft

the de fe nd ant’ s h ou se briefly and re turned voluntarily

while the def

endant’ s sister wa s at t h e house. She a cknowledg ed she told a police of

fice r that she had attempted to leave the defendant’s house at about 7:30 p.m. but that he had pr evente d her f rom doing so. She sa id, however , that she had be en mistaken a bout the time and that this had taken pla ce at 11:00 or 11: 30 p.m. She revised her earlier testimony

reg arding penetr ation taking place for fifteen to twenty minutes and said that it might have occur red f or as long
as t hirty minutes. She acknow ledg ed that she i nitially told a police off

icer that the def

endant did not penetr ate he r, but she cla imed that sh e t h o u gh t the word “ penetr ate” ref err ed to ejac ulation at the time. The victim said she did not rec all whether she had e ver told the police office rs about the defe ndant dra g g ing he r to the ca r by her ha ir, but she insisted that it happened. She a dmitted in her testimony that she told a pol ice of

fice r that she ha d told the defe ndant she would not tell any one about what ha

ppened if he would take her hom e. She also admitted that T.L .’s brother came to the defe ndant’s h o u s e after she had begun drinking and aske d if she wa nted to g o back to the L ay ne residenc e and that the victim told hi m she did not. She admitted that she had, at one point, delay ed leavingthe def

endant’ s house beca

use the defe ndant told he r that the police we re outside a nd that she would be a

rre sted for being drunk. When questioned about a pr ior statement, the victim re vised her te stimony

about beingdrag g ed into the bedroom by her hair and said she had been thr own down by her ha ir and dra g g ed by

her a rms. She said she had bee n able to open the bedroom window a nd
g et her foot out of it when she attempted to esca pe bef ore the rape

.

Annie F ree ls t es t i fi ed that the victim, her g randda ug hter, lived with her

at the time of the crime. She sa id that the vi ctim was to baby sit for a woman name d Arlene who was star ting a new job at 6:00 a.m. on J une 5 and that the victim was to spend the night at Arle ne’s house on the

ev en i n g o f J u n e 4 in o rd er t h at t h e vi ct i m wo u l d n o t h av e t o get u p at 5 : 0 0 t h e f

o l l o wi n g m o rn i n g. S h e s ai d t h e v i ct i m ca m e h o m e s o m et i m e a ro u n d m i dn i gh tan d

wa s b an gi n g o n t h e do o r an d y el l i n g. She said the victim was inj ured and said the def endant ha d rape d her. She sa id the victim’s hair wa s disarra y ed and the victim wa s shaking

. The witness said that she called 9- 1-1 and that the police and an ambulanc e ar

rived quickly

. She said that the vi ctim had a scar on her breast and that the victim’s emotional state had not he aled.

Offic er Clay

Haddix of the J ackson Police Depa rtment testified that he wa s dispatched to a
rape call at th e v i ct i m ’s h o m e at 1:15 a.m. on J une 5. He said the victim was in the living r oom cry ing w hen he a

rrived. H e said she ha d a knot on the left side of her he ad, a “ busted” lip, bloodshot
ey es, a bite ma

rk on her rig ht brea st, and a bruise . He testified that the vict i m s ai d s h e h ad bee n rape d but that she did not know whether penetr ation occur

red. H e said he did not ex plain to her the meaningo f the wor d “pene tration.” He said the victim told him that she had a rrived at the defe ndant’s house a

bout 7:00 p.m., that she had attempted to leave ar ound 7:30 p.m., and that the defe ndant had locke d the door a nd had begun g iving he r liquor. He sa id the victim said she had-4-

consumed seve n drinks that wer e provide d by the def endant. He said the victim did not mention t he use of a wea pon during the cr ime. He said she told him that the defenda nt had phy sically

assaulted her to the e x t en t t hat she ha d lost consciousness at one point. He said she re counted that she attempted to ra ise the window at the defe ndant’s house but wa s unable to do so.

Offic er Chris Chestnut of t he J ackson Pol ice Depar tment testified t hat he responde d to the vic tim ’s ho me . H e ide nti fi e d p ho tog ra ph s h e too k of the vic tim ’s inj ur ie s. He sa id t hat th e vic tim

was a ble to identify

her attacker

and that he a

nd Of fi ce rs L o ng mire and B eave r we nt to the de fe nd ant’ s h ome , w hic h w a s a fe w hun dr e d y ard s aw ay

. He sa id t hat w he n th e de fe nd ant c a me to the door, he had blood on the crotc h are a of his clothing . He sa id he could see a wa shcloth with what looked like blood on it on a rec l i n er i n s i de the de fenda nt’s house. He said that the off icer s p h o t o gra p hed the sc ene a nd the def

endant a nd that they

collecte d evidenc e. He said they found a broken ne cklace wh i ch the victim t old them was broke n during the strug g le. He ide ntified the photogr aphs, including those of the be d d i n g fr o m the master be droom at the de fenda nt’s house, which he sa id appea

red to have blood on it. H e also identified photog raphs of the victim taken at the emer g ency

room, in which her

injuries wer e visible.

Offic er Shane Be aver

of the Jackson Police Depa rtment testified he was wor king a s a patrol office r in the ea

rly morning hours of June 5. He said he responde d to the victim’s house and later to the defe ndant’s house. He said that when he and other office rs went to the de fenda nt’s house, the de fe nd ant came to t

he do or in r e sp on se to t

he ir kn oc kin g . H e sa id t

he de fe nd ant a llo we d th e m to come inside the house . He sa id there w as a male in addition to the defe ndant pre sent and that the office rs lear

ned the other

man’s brothe r had be en at the house ear lie r, as well. He said he sa w a washc loth with what appear ed to be blood on it in a chair. He said he assist ed in collectingphy sical evidenc e. He said the def endant spoke with the office rs willingly and related his version of e arlier

e ve nts

.

Doctor Micha el Ne lson testified that he wa s a boar d cer tified internal medic ine phy sician and that he examined the victim at the emer g ency room in the ea

rly morning hours of June 5, 2002. He said the victim repor

ted that she ha d been va g inally penetr ate d

. He s ai d t h at he a sked her about penetr ation in lay

man’s ter ms and that he believed she understood. He c ollected r ape kit evide nce fr om t he vic tim . H e sa id t

he vic tim ha d a bla c k ey e , a h e ma tom a in o ne of he r e y e lid s, ble e din g in the white par

t of her e y e, bruising on her f ace , a lace ration on the inside of her lip, a scratch on her neck, a car

pet burn on her shoulder , bruises and a scratch on her

lower ba ck, scr apes a

nd bruises on her kne e, b ruising on he r bre asts, and an a ppare nt human bite mark on one brea st. He said he perf ormed a pelvic examination and did not observe any bruising or

inflammation. He said that the victim wa s h a v in g h e r me n s tr u a l p e r io d an d th a t s h e h a d a ta mp o n “ p u s h e d a ll th e w ay u p in the
vag ina to around the cer

vix ,” which he said was a n unusu al l ocation for

a tampon and c ould have

re su lte d f ro m pe nil e /va g ina l pe ne tr a tio n. He sa id that th e vic tim ’s blo od a lc oh ol c on te nt at 4: 30 a .m. on J une 5 wa s .09 or 91 and that the le g al limit at that ti me was .1 or 100.

I nvestig ator Jeff Austin of the Jackson P olice Department testified that he re sponded to the hospital on the morning of J une 5. He said he collec ted phy sical evide nce, inc luding the vic tim’s-5-

clothing a nd the rape kit. He testified that he later transporte d sever al items to the Tennesse e B urea u of Investig ation for testing . He sa id that at the emergen cy ro om, he spoke only briefly with the victim but that he took a statement fr o m her a nd photogr aphed he r on June 6. He said he photogr aphed the defe ndant on J une 5. He identified photogr aphs t hat he took of t he victim and the defe ndant. He said the defendant was cooper ative and ag ree d to g ive a blood sample. He said he lear ned that the de fenda

nt was eig hteen y ear s old.

I nvestig ator Austin said he inter viewed the victim. He said she did not mention that she was not free to leave the defe ndant’s home on June 4 at 7:30 p.m., nor did she men t i o n h aving g one

acr oss the street to a neighbor ’s hous e while at t he defenda nt’s home. He said she di d not mention having cut her

foot on a shot g lass. He sa id she re p o rt ed h av i n g had two alc oholic drinks at the de fe nd ant’ s h ou se . H e sa id s he did no t me nti on

havin g be e n dra g g e d by

he r h a ir to t he c ar. He sa id she told him that she had tried t o g et out of the be droom but that the defe ndant held the door closed. She said that she had a

ttempted to leave thr oug h a bedr oom window and g ot her foot out but t hat the de fe nd ant t

hr e w he r b a c k in to t

he ro om. He sa id t

he vic timre po rt e d th a t T .L . h a d b e e n in the ho us e at the time of the r ape. I

nvestig ator Austin testified that he inter viewed T .L ., who was a

minor.

Chad J ohnson testified th at he was a for ensic scie ntist wit h the Tenne ssee B urea u of I nvestig ation. He testified as an ex pert in serolog y and DNA analy sis. He said that he examined the ite ms s ub mit te d to the TB I la b. He te ste d s e ve ra l it e ms a nd did no t f ind se me n p re se nt. Th e ite ms included the be d sheets, the victim’s shorts, the vi ctim’s t-shirt, the victim’s tampon, and the va g inal and ana l swabs from the r ape kit. He found bl ood on the defendant’s box er shorts which matched the victim’s DNA pr ofile.

I nvestig ator Mike Tur

ner of the J ackson P o l i ce Depa rtment testified about his duties as evidenc e custodian. H e identified items of be dding, a washc loth, and a broke n neckla ce.

Over defe nse objec tion, the state rec alled the victim dur ing its ca se-in-c hief. She testified that she wa s wea

ring a nec klace on the ni g ht of t he crime and that she l ost it in the def endant’ s home. She identified t he broken neckla ce that was recove red from the defendant’s house as the one she had

wo rn that ni g ht. Th e vic timsa id t hat sh e wa s h a vin g he r m e ns tr ua l pe ri od on the nig ht o f t

he c ri me and that she w as we aringa prope rly inserted tampon.

The de fenda

nt called Ar lene Ward, who testified that her last name used to be L ay ne and that sh e liv e d a c ro ss t

he str e e t f ro m th e de fe nd ant i n Jun e 20 02

. She sa id the de fe nd ant a nd the vic tim

wer e standing in her y ard a bout 7:30 or 8:00 on J une 4, 2002. She h ea rd the victim say to the defe ndant, “L et’s g o drink. L et’s g o g et drunk.” Ms. Ward testified t hat T.L . was he r son and that he ha d b e e n at th e de fe nd ant’ s h ou se on the nig ht i n q

ue sti on . Sh e sa id T .L . h a d s inc e mov e d to Ore g on.

Amanda B ely ea, the defe ndant’s sister, testified that she had never know n her br other to be
ag g ressive or violent. She first said she was living in the s ame house with the defe ndant on J une 4, 20 02 , b ut s he la te r t e sti fi e d th a t sh e ha d li ve d in the ho us e in t

he pa st b ut l ive d e lse wh e re on the date-6-

in question. She said she had g one to the house a round 9:30 or 10:00. She said the de fenda nt, the victim, and two children f rom next door w er e p re s en t

. She identified T.L . as one of the childre n. She said that the def

endant, who w as eig hteen y ear s old, and the victim were drinking alcohol and that the victim was exhibit ing sig ns of havinghad too much to drink. She said the victim was loud, did not want to sit down, was tripping ove r thing s, and wa s bumping into walls. She said she left

aro un d 1 0:3 0 a

nd re tur ne d, a t w hic h p oin t sh e saw the vic timon the c ou c h a

nd wa s to ld t

he vic tim had cut he r foot on a shot g lass. Ms. B ely ea said that she spoke w ith her mother by telephone a

nd informed he r that the de fenda nt a nd the victim were drinking and that her mother wa s displeased. The witness testified that the victim lef t the house, went to a

neig hbor’s house, a

nd returne d. She said the victim left a se cond time ar ound 11:30, went t o a n eighbor’s house , and did not return. Ho we ve r, the wi tne ss s a id s he a lso le ft a ft e r w a iti ng a lit tle wh ile to m a ke sure that th e vic timdid
not return. The witness testified that the windows in the master be droom wer e painted a nd nailed shut. She sa id s he did

no t ob se rv e the vic timbe inghe ld i n th e ho us e a g a ins t he r w ill

.

The de fenda

nt called his mother, S y lvia Be ly ea. She te stified that the def endant wa s living wi th h e r o n Jun e 4, 20 02 , an d tha t sh e ha d n e ve r k no wn him to b e vio le nt o r a g g re ssi ve . Sh e sa id that on the date in que stion, she was not home but that she had c alled ar ound 10:00 to check on the defe ndant and ha d spoken with her da ug hter. She said she lear

ned from her da

ug hter that one of the neig hbors was at the house and that they wer e drinking. She said that she was about an hour awa y and that she initially

planned to drive home but that her da ug hter c onvinced he r that she ha d

ever y th i ng under c ontrol. She said she told her da ug hter to make ever

y one leave and to tell the defe ndant to g o to bed. She said that the windows in he r bedroom wer e nailed and painted shut a nd that a hamme r w ou ld b e re qu ir e d to op e n th e m.

Debor ah Thorse n testified that she kne w the def endant a nd the victim. She said that in the four to five y ear s she had known the victim, she had for med the opinion that the victim did not have

a g oo d r e pu ta tio n f

or tr uth fu lne ss.

Chr ist op he r H e ns e n te sti fi e d th a t he did no t kn ow the de fe nd ant b ut h a d k no wn the vic tim for a bout two y ear s. He said he was not re lated to the victim. He said her char acte r was such that she wa s “nontruthful.”

After the cour t reve rsed an ear lier evidentiary ruling , the def

ense r eca lled Amanda B ely ea. She tes ti fie d th a t sh e ha d s e e n th e vic timdr ink a lc oh ol “ a

c ou ple of tim e s” be fo re the nig ht i n question.

Th e de fe ns e c a lle d th e vic tim . Sh e de nie d th a t on the day a ft e r t he c ri me sh e ha d g on e to Arlene L ay

ne’s house and that she w as drinking beer that day . She said she had g one home a bout 6:00 a.m. on J une 5, slept until about 1: 00 or 2: 00, g ave a s tatement to the pol ice after she woke up, and did not leave her house for a bout two day s. She denied that she ha d consumed be er a fter g iving the statement.-7-

The de fense rec alled Sy lvia Be ly ea, w ho said that on the day afte r the incident she had observe d the victim standing on Arl en e L ay ne’s f ront porch dr inking be er w ith three boy s and members of the L ay

ne family

. She said this took place in the ear ly afte rnoon bef

ore a bout 2:00. She said she re cog nized the beer the victim was drinking as being Budw eiser beca use it wa s in a red a

nd white ca n.

Th e state c a lle d Annie F re e ls in re bu tta l. She te sti fi e d th a t a ft e r s he br ou g ht t he vic timho me f r o m t h e h o s p i t a l o nth e m o r n i n g a f t e r t h e c r i m e , s h e an d

t h e v i c t i m d i d

n o tl e a v e t h e i r

h o m e a l l d a y. She said the victim was af raid to leave the house. She said Investig ator Austin took a stateme nt from the victim at their house.

After rec eiving the proof, the jury found the def endant guilty

of ag g ravated ra

pe and statutory rape . The trial c ourt later me rg ed the convictions and sentenc ed the def endant to twenty

y ear s in the Depa rtment of Corre ction. This appea l followed.

I

We consider f

irst the defe ndant’s cha lleng e to t he sufficiency of t he convicting e vidence of
ag g ravated ra

pe. Our standard of

re v i ew when the suff

iciency of the e vidence is questioned on
appea l is “w h et h er , after viewingthe evidenc e in the lig ht most favorable to the prosec ution, any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979). This mea ns that we do not rewe igh the evidenc e but pre sume that the j ury has resolved all conflicts in t he testimony and draw n all rea sonable inferenc es from the evidence in favor of t he st ate. See State v. Sheff ield, 676 S.W .2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978).

As pertinent he re, “ [a] g g ravated ra pe is unlawful se x u al p en etration, of a victim by the de fe nd ant o r t

he de fe nd ant b y

a vic tim a c c omp anie d by

. . . th e de fe nd ant c a us [ing ] bod ily

inj ur y to the victim[ .]” T.C.A. § 39-13-502(a )(2) . “S exual penetration” is defined a s “sexual intercourse
, cunnilingus, f

ellatio, anal inter course , or any other intr usion, however

slight, of a

ny part of a person’ s body or of a ny object into the g enital or a nal opening s of the victim’s, the de fenda nt’s, or any

other person’ s body [.] ” I d. § 39-13-501( 7). “B odily injury includes a c ut, abra sion, bruise, burn or dis fi g ur e me nt, a nd

ph y sic a l pa in o r t emp or ary ill ne ss o r i mpa ir

me nt o f t he fu nc tio n o f a

bo dil y member, or g an, or me ntal fac ulty .” I d. § 39-11-106( a)( 2).

The de fenda

nt argues that t h er e i s i nsufficie nt proof of a g g ravated ra pe, as oppose d to an assault, becau s e th e r e is n o p h y s ic a l e v id e n c e o f a r a p e

. H e p o in ts to th e e v id e n c e o f th e la c k of bruising, inf

lammation, or trauma to the victim’s vag inal are a and the fact that no semen or spe rm was found on the it ems collecte d by the police. He conce des that a r ational trier of fac t might conclude that an assault occur red but not a rape

. Acc epting the def endant’ s argument would require us to discount the victim’s testim ony . Acc reditation of witnesse s is the province of the jury as the trier of fac t, not of the appe lla t e co urt. See, e .g ., State v. Wil liams, 784 S.W .2d 660, 663 (Tenn. Crim. App. 1989). I n the light most favor able to the state , the evidenc e dem o n s t ra t es t h at theA c c o rd ing to info rm a tio n o f re c o rd , T .L . l a te r m o v e d to O re g o n

. 1

-8- defe ndant unlawf

ully penetr ated the vic tim’s vag ina with his penis and that the vic tim suffere d bodily injury . The e vidence is sufficient to sustain an ag g ravated ra pe convic tion.

II

The de fenda

nt’s next i ssue is that the trial cour t erre d in denying his petiti on to compel the attendanc e of a

n out-of-state witness, T.L . Be fore trial, the def ense f iled a “Moti o n to Secure Wit ness Attendanc e” which reque sted that the trial court “orde r State funds for witn es s fe es ” for T.L ., a minor who lived with his fathe r in California. The mot ion alleg ed that T.L . could “testify 1 to the acc user’ s drunken state , flirtatious behavior, w il l i n g n ak ed ness, lack of desire to lea

ve the

scene , failure to complain of the c rime, and lack of harm[, as well as the] Def endant’ s lack of de sire to eng ag e in a se x ual ac t, effor ts to care for the acc user and clothe her, a nd g ener al demea

nor on the

n i g h ti nqu e s t i o n

. ” T h e m o t i o nr e c i t e d t h a t T

. L. ’ s f

a t h e r h a d a g r e e d t o t r a v e l t o J a c k s o nw i t h T

. L. by bus. The re lief re quested wa s a g rant of f unds for “ bus far e, hotel re imbursement, and mea l reimburse ment.” The court c onducted a hear ing a nd enter ed an or der f

inding that T.L .’s appe ara nce was “ nece ssary

to ensure that the Def

endant’ s Consti tutional rights ar e not violated.”

T h e d e f e n s e l a t e r m o v e d t h e t r i a l c o u rtf

o r a c o n t i n u an c e b e c a

u s e t h e r e w a s u n c e rta int y whether the funds for

T. L

. wo u l d ar rive in time for the schedule d trial date, a nd the trial cour

t enter ed an or der g ranting the continuanc e. The rea fter, the defe nse filed a “Petition to S ecur e Attendan ce of Witness” alleg ing that T.L . was “ a nec essar y and mater ial witness who will testify fa vo ra bly fo r t he de fe nd ant” and

se e kin g that th e tr ia l c ourt iss ue “ a c e rt if

ic a te

. . . f or the purp os e of beingprese nted to a judg e of a court of r ecor d in the State of California in a proce eding to compel the attenda

nce of said [T.L .] as a witness at [the defenda nt’s] t rial . . . .” The trial court c ommented on the rec ord prior to the hea ring that it had taken the de fense attorney ’s word a s an off icer of the court that the w itness was mater ial when it g rante d the trave l fu nds but that it had never be en prese nted with an aff

idavit f rom the witness. The following day , the cour t conducted a

hear ing at which the de fense counsel did not offe r an aff idavit of T.L .’s anticipate d testimony . Def ense c ounsel claimed that T.L .’s father was no longe r coope rative a nd that, thus, the defe nse wa s unable to off er an af fidavit. The de fense explained that the rea son for the motion wa s to obta in a n order of the trial

c ourt wh ic h wo uld se t int o mot ion the pr oc e ss in Ca lif or nia to ha le the wi tne ss int o a C ali for nia
court a nd possibly into c ustody for the purpose of compelling his attendanc e at the de fenda nt’s trial in Tennesse e. Counsel submitted a police re port which doc umented a statement T.L

. had given. The trial court denied the petit ion, finding the defendant failed t o demonstrate that T.L

. was a materia l witness.

Te nn e sse e ha s e na c te d th e Un if or m L aw t o Se c ur e the Atte nd anc e of Witn e sse s f

ro m With in or Without a State in Criminal Procee dings. T.C.A. §§ 40 -1 7 -2 0 1 to -212. The statute inc ludes provisions for compulsory attendanc e of out-of -state witnesse s at criminal proc eeding s in Tennessee courts. The witness must be material. I d. § 40-17-203. “A de fenda nt seeking to secure the pre sence of an o ut- of -s ta te wi tne ss m

us t de mon str a te that th e wi tne ss w ill of fe r m a ter ial te sti mony .” State-9-

v. Har ris, 839 S.W .2d 54, 68 (Tenn. 1992); see T.C.A. § 40-17-207. The decision whe ther to compe l the attenda

nce of a witness is within the di scre tion of the trial cour t and is subject to appellate revie w for a buse of discr etion. State v. Workman, 667 S.W .2d 44, 49 (Tenn. 1984)

.

I n the pre sent ca se, there was no abuse of discretion under the Uniform L aw. The defe ndant did not demonstrate at the he aringthat the out-of- state witness would off er material testimony . At most, he demonstrated that the witness had g iven prior statements to police in which he had re ported some fac ts which wer e inconsistent with the victim’s p re -trial stateme nts, and ultimately , the victim’s testimony . Assuming a rg uendo that the witness would testify in acc o rd with his prior

un sw or n s ta te me nts , h is s ta te me nts we re no t c le arl y e xcu lp ato ry to t

he de fe ns e . T he wi tne ss

re po rt e d th a t aro un d midn ig ht, the de fe nd ant wo uld no t let the vic timle a ve his ho us e . T he wi tne ss

a lso re po rt e d th a t he ob se rv e d th e de fe nd ant phy sic a lly re str a ini ngthe vic timand that th e vic tim
repor ted to the witness that eve ning that the defe ndant had r aped he r.

The de fenda

nt argues on appe al th a

t h e s u f f e r e d v a r io u s c o n s ti tu

ti o n a l d e p rivations, including his right to due process, hi s rig ht to a fair tr ial, and his rig ht to compulsory attendanc e of a

materia l witn e s s

. T h e d e f

e n d an t is c o r

r e c t th a t th e “ Si xth A me n d me n t an d th e D u e Pr o c e s s Clause of the Four teenth Amendme nt clear ly g uara ntee a criminal defendant the rig ht to prese nt a def ense w hich includes the rig ht to present witnesses f avora ble to the defe nse.” State v. Br own, 29 S.W.3d 427, 432 (Tenn. 2000); see Chambe rs v. Mississi ppi, 410 U.S. 284, 302, 93 S. C t. 1038, 1049 (1973) (“F ew r i gh t s ar e more fundame ntal than that of a n acc used to prese nt witnesses in his own defe nse.”) . I n the context of compulsory attendanc e of witnesses, the Supreme Court ha s observe d:

Th e ri g ht t o o ff

e r t he te sti mony

of wi tne sse s, and to compe l th e ir

a tte nd anc e , if

ne c e ssa ry , is in p la in t e rm s th e ri g ht t o p re se nt a defe nse, the righ t t o prese nt the defe ndant’s ver sion of the fa cts as

we ll a s th e pr os e c uti on ’s to t he jur y so it m ay de c ide wh e re the tr

uth lies. J ust as an ac cused ha s the rig ht to c o n fr o n t the prosec ution’s witnesses for

the purpose of

cha l l en ging the ir testimony , he has the rig ht to prese nt his own wit nesses to establish a def ense. This rig ht is a fundame ntal element of due proc ess of law

.

Was hin g ton

v. Te xas, 38 8 U .S. 14 , 19, 87 S. Ct. 192 0, 19 23 (1 96 7) . T he fo un datio n o f s uc h c la ims is th a t th e w it

n e s s o r th e e v id e n c e th e d e f e n s e s e e k s to o f

f e r is mate r ia l to th e d e f

e n s e. See, e .g ., United States v. Vale nzuela-B erna l, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446 (1982) ( holding that

a de fe nd ant w ho atte mpt s to e sta bli sha vio la tio n of his c on sti tut ion a l ri g ht t o c omp uls or y pr oc e ss

“ mus t a t le a st m a ke a

pla us ibl e sh ow ingof

ho w [th e wi tnes s’s ] tes ti mony wo uld have be e n b oth materia l a

nd favor able to his defe nse”) ; Ba con v. State, 385 S.W .2d 107, 109-10 (T en n

. 1 9 64) (h old ingtha

t a de fe nd ant is en tit le d to com pu lso ry pr oc e ss of wi tne sse s u po n s ho wi ngof

ma te ri a lity of witnesses’ testimony); State v. Alvin Glenn Hug hes, No. 03C01-9208-CR-0018-00183, Shelby County (Tenn. Crim. App., June 9, 1993) (obser ving that a def

endan t h as a fundamental

c on sti tut ion a l r ig ht t o c omp uls or y pr oc e ss o f a

wi tness at tr ia l up on

a sh ow ingtha

t w itn e ss i s materia l, and trial cour

t has no discre tion in is suing suc h proce ss).-10-

I n th e pr e se nt c a se , th e tr ia l c ourt fo un d that the de fe nd a nt did no t de mon str a te the ma te ri a lity of the anti c ipate d te sti mony of the ou t- of

-s ta te wi tne ss. I n fa c t, the de fe ns e c ou ld no t e ve n f or e c a st the substance of the witness’ te stimony other than to pre su m e t h at t he witness would testify consistently

with the statement he had given the police at the time of the c rime. As discussed a bove, the evidenc e wa s of questionable va lue in exculpating the defe ndant, as it also may be fa irly viewed as incriminatory . Also, the evidenc e wa s not the only means available to the defense to impeach the vict i m ’s v er s i o n of eve nts. Given these f acts, we conclude that the trial cour t did not viol ate the de fe nd ant’ s c on sti tut ion a l r ig hts in d e nyingthe mot ion to c omp e l T .L .’ s atte nd anc e a t tr ia l.

III

The de fenda

nt argues that the trial c ourt err ed in allowing the state to excee d the scope of

cross-e x amination in its redirec t examination of Dr. Michae l N elson. Specifica lly , the cour t allowed the state to i nquire about the l ocation of the victim’s tampon and the possible ca use of its location. Doctor N elson testified on direc t examination that he re moved the victim’s tampon from he r vag ina

near he r c e r v ix. T h e d e f

e n s e d id n o t c r o s s

- e xa mi n e th e w it n e s s o nth is s u

b je c t. O nr e d irec t

e xami na tio n, the state wa s a llo we d to e lic it that th e loc a tio n o f t he tampo n w a s unu su a l and that it could have resulted f

rom penile pe netration of the victim’s vag ina.

The “ scope of

redire ct examination . . . is wit hin the discretion of the trial court, whose ruling will no t b e reverse d absent a n abuse of

that discretion.” State v. Che aris, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999) ; see State v. B arna rd
, 8 9 9 S .W.2d 617, 624 (Tenn. Crim. App. 1994). Although the Tenne ssee Rules of Evide nce do not a ddress the sc o pe or ma nner of redire ct examination of a witness, “Te nnessee law is well-se ttled that redire ct examination can broa ch topics

ra is e d o nc r o s s

- e xa mi n a ti o ne v e nth o u g h th o s e matt e r s w e r e n o t i n qu ir e d in to o nd ir e ct examination.” S t ate v. B aker , 966 S.W .2d 429, 433 (Tenn. Crim. App. 1997) . Moreove r, a tria l

c ourt may a llo w r e dir e c t e xami natio n o f a wi tne ss o n f

a c ts that we re no t c ov e re d o n d ir e c t or c ro ssexamination. S tate v. Rafa el A. B ush, No. M2002-02390-CCA-R3-CD, Rutherf ord County

(Tenn. Crim. App. Apr. 14, 2004), a pp. denied ( Tenn. Oc t. 4, 2004); Neil P. Cohen e t al., Tenne ssee L aw of Evidenc e § 6.11[6] [b] (5th ed. 2005).

The de fenda

nt has not e x plained how the ruling was a n abuse of

the trial cour

t’s discretion or how he was pre

judiced. The rec ord ref

lects that the state had elicited testimony about the location of the tampon on dire ct examination, and this additional inquiry on redire ct was rele vant and br ief. The de fenda

nt was allowed on rec ross-examination to inquire whether there wer e other

explanations besides sexual penetration for the unusual location of the victim’s tampon. We are not convinced that the trial cour

t abused its discretion in allowing examination which exceeded the scope of direc t and cr oss-examination.

The de fenda

nt a lso makes a cursor

y argument for the f

irst time on appeal that the obje ction should have be en sustained be cause “it soug ht mere speculation by the wit ness.” “I t is elementar y that a par ty may not take one posi t i o n re gar ding a n issue in the trial court, c hang e his strateg y or-11-

po sit ion in mid -s tr e a m, an d advo c a te a dif fe re nt g ro un d or re a so n in this Court .” State v. Do bb ins
, 754 S.W .2d 637, 641 (Tenn. Crim. App. 1988)

.

IV

The de fenda

nt cl ai ms that the trial court e rre d in denying him the oppor tunity to make an of fe r o f p ro of duri ng

Dr . N e lso n’ s te sti mony . T he de fe ns e anti c ipate d th a t th e of fe r o f p ro of

wo uld consist of testimony

that the victim had traces of marijuana and antidepressants in her sy stem and that sh e t ook birth control pills. Bef ore tria l, the court rule d that this evidence would be inadmissible. The defe nse then soug ht at t rial t o make an offe r of proof of these facts throug h Dr. Nelson. The tr ial court did not let the def ense make a f

ormal off er of proo f by questioning D r. Nelson on the re cord. H oweve r, it allowed the def ense to make a stateme nt on the rec ord of the evidenc e it soug ht to elicit from Dr. N els on. The de fense stated that it sought to have Dr. Ne lson testify about m arijuana in the vi ctim’s sy stem, about t he victim not having been give n emer g ency bir th c on tr ol a

t the e me rg e nc y ro om be c a us e sh e too k bir

th c on tr ol p ill s, and

a bo ut t he vic tim ’s us e of anti de pr e ssa

nts a nd po ssi ble int e ra c tio n o f a

nti de pr e ssa

nts and a lc oh ol. Withre sp e c t to thi s la st point, the defen s e at t o rn ey said he wa

nted to inquire whe ther a lcohol had an a dverse eff ect whe n combined with the antidepr essant the victim wa s taking

. Counsel did not state what he expected the doctor’s te stimony

would be. The court reiterated i ts pretria l ruling that the evidence wa s irrele vant and pre judicial. The c ourt noted that there was no a lleg ation that any one had use d marijuana on the night of the cr ime. The c ourt al s o found that whe ther the vic tim took bi rth control pills was not rele vant to the issue of whe ther she consented to have sex with the defendant. The c ourt questioned whether an eme rg ency

room phy sician wa s q u al i fi ed to testify reg ardingany

interac tion between

anti de pr e ssa

nts and a lc oh ol a

nd agreed with t

he state tha

t a toxic olo g ist , c he mis t, o r p ha rm a c ist would likely

be the pr oper w itness to provide evidenc e of this nature

. An important purpose of

an off er of proof is to foster appellate revie w. Alley v. State, 882 S.W. 2d 81 0, 81 5 ( Te nn . Cr im. Ap p. 19 94 ). A p art y may ob ta in r e lie f b a sed upo n e rr on e ou sly excluded evidenc e if “ the substance of t he evide nce a nd the spec ific evide ntiary basis supporting the

a dmi ssi on

we re ma de kn ow n to the c ourt by of fe r o r w e re a

pp are nt f rom the c on te xt.” Te nn . R. Ev id. 10 3( a )( 2) ; se e Al le y , 88 2 S.W. 2d a t 81 5 (h old ing that a s a g e ne ra l pr inc ipl e , a

n a pp e lla nt m us t

make an o ff

e r o f p ro of

of ex clu ded evide nc e he se e ks to h a ve a dmi tte d unle ss i ts s ub sta nc e is otherwise a

ppare nt). I n this re g ard, the trial court “shall permit the making of an of fer in question and answ er f

orm.” Te nn. R. Evid. 103(b). Given the mandatory lang uag e of the rule , a trial c ourt should ex erc ise its discretion sparing ly in denying a

party the opportunity to place on the rec ord the evidenc e in testimonial, a s opposed to narr ative for m. See Neil P Cohen, et al., Te nnessee L aw of Evidence , § 1. 0 3 [ 5 ][ d] (5th ed. 2005) (noting that narr ative of e x cluded pr oof is not the best or

encour ag ed method for an offe r of proof and that the strong ly encour ag ed method is by

prese ntation of the actua l te stimony ). Only if it is obvious from the r ecor d that the proff ere d evidenc e could not be re le va nt i n a ny wa y to t he iss ue s o n tr ial
, th e tr ial co ur t ma y pr op e rl y de ny a pa rt y ’s re qu e st t o make a n offe r of pr oof. Alley , 882 S.W .2d at 816.-12-

First, with re spect to the de fense ’s anticipate d evidenc e that the victim ha d marijuana in her
sy ste m and

too k b ir th c on tr ol p ill s, we no te tha t the state do e s no t c on te st the a c c ur a c y of tho se fa c ts. I t is ob vio us fr om the re c or d b e fo re us that th e pr of fe re d e vid e nc e wa s n ot r e le va nt t o th e tr ia l is su e s. Thus, the trial cour

t did not err in limiti ng the means by which the defe ndant was a llowed to make an off er of proof on these evidentiar y points. I d.

Th e qu e sti on

of our a bil ity to r e vie w the de nia l of

an o ff e r o f p ro of

on the iss ue of

the us e of antidepr essants and a lcohol is m o re co mplex . The issue involved que stions of ex pert qualifications and expert opinion testimony which wer e not obviously irrele vant, and the tr ial court should have a llowed the def endant to make its offer of proof in question and a

nswer f orm. See Tenn. R. Evid. 103(b). H oweve r, to obtain appe llate re lief, the de fenda nt must demonstrate that he
was pre judiced by

the trial cour

t’s ruling . Tenn. R. App. P. 36(b).

The de fenda

nt never place d on the re cord in an y form the substance of w hat Dr. N elson’s
sp e c if ic te sti mony

wo uld be a bo ut t he vic tim ’s c on c ur

re nt u se of an ti dep ressa

nts and a lc oh ol. During the mid-trial hea

ring , counsel alluded to a possible inter action, but he never stated that Dr. Nelson would testify that the victim’s memory could be a ffe cted by

the combination of a lcohol and the pa rt ic ul ar a nti de pr e ssa

nt t he vic timwa s ta

kin g . A t th e mot ion

fo r n e w tri a l, t

he de fe ns e complained only

of the de nial of an of

fer of proof relative to D r. Nelson’s anticipated testimony that the victim ha d marijuana in he r sy stem. The de fense did not specifica lly complain at that stag e about the ru lin g wi th r e sp e c t to a lc oh ol a nd anti de pr e ssa

nts

. F ur the r, the de fe ns e did no t te nd e r a n a ff ida vit from Dr . Nelson outlining what his testimony would have been in an offer of proof . Neither did the defe nse provide a

ny other for m of evidenc e to demonstrate the mater iality of the excluded evidenc e. For exampl e, t h e d efe nse mig ht have pr ovided an a ffidavit or tre atise stating that the use of

anti de pr e ssa

nts and a lc oh ol t og e the r w ou ld h a ve ha d a sy ne rg ist ic e ff

e c t on the vic tim ’s a

bil ity to

rec all acc urate ly

the disputed eve nts, if suc h wa s t h e d efe nse’s c ontention. See g ener ally State v. Goad, 707 S.W.2d 846, 853 (Tenn. 1986) ( stating that c ounsel might supplement an inade quate of fer of proof made at trial by

submitt ing “ an af

fidavit or other

repor t” in support of the motion for ne w trial). Ulti mately , the def endant, a s the party

seekingrelief

from the tria l court’s a ction, had the responsibilit y t o “take whateve r ac tion was rea sonably available to preve nt or nullify the har mful

e ff e c t of an e rr or ” a s a pr e dic a te fo r re lie f. Te nn

. R. Ap p. P. 36 (a ). I n the pr e se nt c a se , that du ty

nece ssarily entailed demonstrating the substance and t he relevanc e of the proposed evidenc e. The defe ndant has not demonstrated pre judicial err or.

V

The de fenda

nt contends the trial court erre d in allowing the state to rec all the victim during its case- in-chief

. The re cord ref

lects that afte r the victim testified, I nvestig ator Mike Turner testified about the re cover

y of a broken neckla ce at the defe ndant’s home. Doctor Nelson also testified a fter the victim, a

nd his te stimony included evidenc e that the victim wa s having her menstrual period a nd that she wa s wea

ring a tampon which ha d been pushe d up to her c ervix. The trial court a llowed the
state to rec all the victim, who testified that the nec klace was hers, that she wa s having her me nstrual period on the nig ht of the cr ime, and that she ha d been w ear ing a proper ly inserted tampon.-13-

Whe the r a

pa rt y may re c a ll a

wi tne ss i s a

ma tte r e ntr

us te d to the dis c re tio n o f t he tr ia l c ourt

. State v. Caug hron, 855 S.W .2d 526, 539 (Tenn. 1993). We will not dist urb the trial c ourt’s dec ision unless an abuse of discre tion is shown. I d.

The de fenda

nt argues that the re calling of the v ictim was a c ontinuation of her dire ct examination testi mony , which had be en conc luded, and not for rebut t al p u rposes. He has not

e xpla ine d, ho we ve r, wh y thi s a mou nts to e rr or

. We a

re un pe rs ua de d th a t th e tr ia l c ourt a bu se d it s discretion.

VI

T h e d e fenda

nt’s final complaints conc ern the trial court’ s ref usal to g ive cur ative instructions in response to the pr osecutor’ s closing a rg ument. The de fenda

nt reque sted, and wa s denied, c urative instructions r elative to the state’s argument that the fore nsic evidenc e showe d that the def endant wa s “down to his box er shor

ts” and that th e d ef

en d ant had the oppor

tunity to present the te stimony

of T.L

.

Th e Te nn e sse e Sup re me Cour t ha s r e c ognize d th a t “ argume nt o f c ouns e l is a va lua ble privileg e that should not be unduly restric ted.” Sm ith v. State, 527 S.W .2d 737, 739 (Tenn. 1975)

. Attor ne y s h a ve g re a t leew ay in arguin g be fo re a jur y , a nd the tr ia l c ourt ’s br oa d d isc re tio n in controlling their ar g uments w i l l b e re v er sed only upon an abuse of discre tion. Terry v. State, 46 S.W .3d 147, 156 (Tenn. 2001). Howeve r, closing argument must be “temper ate, must be pre dicated on evidenc e introduce d during the trial of the c ase, a nd must be pertinent to t he issues beingtried.” Russell v. S tate, 532 S.W.2d 268, 271 (Tenn. 1976).

A. De fend antWa s “ Do wn to His Box e r Shor ts ”

The state argued that Ag ent J ohnson testified that he tested the defe ndant’s boxer shorts and deter mined that the victim’s blood was on them. The state continued,

L adies a nd g entlem en , what does that tell y ou? At some point, the defe ndant is down to his box er shor ts in fron t o f [ the victim] . And h er b l o o d gets on his box er shor ts. Isubmit t o y ou ladies and
g entlemen, that’ s one more pie ce of evidenc e that

b uttresses what [ the victim] told y ou as to how this e vent occur red beca use her blood is on his box er shor

ts. Now, there ’s a strug g le g oing on. She told y ou she couldn’t re member howmuch of his clothes he go t off, but her clothes we re of

f.

The state ma

y proper ly argue thos e co n cl u sions which are rea sonably inferr ed fr om the evidenc e of r ecor d. State v. Henley , 774 S.W .2d 908, 912 (Tenn. 1989) ; State v. Sutton, 562 S.W.2d 820, 826 (Tenn. 1978) . The a rg ument the state made was that a re asonable infere nce c ould be dra wn that the def

endant wa s “down to his box er shorts,” rathe r t han an ina ccur ate c hara cter ization of the-14-

dir e c t e vid e nc e of re c or d. Th e argume nt w a s p ro pe r. Th e tr ia l c ourt did no t a bu se its dis c re tio n in denying a curative instruction, as there was no e rror to cure

.

B. De fend ant ’s F ail ur e to Ca ll A bse nt Wit ne ss

The de fenda

nt also complains about the prose c uto r ’ s c lo s in g a rg ument relative to the absenc e of T.L . at trial. During the state’s initial ar g ument, the prosec utor did not dispute that T.L . had bee n in the defe ndant’s house dur ing the crime. I n pertinent pa

rt, the prose cutor stated:

[The victim] g ets in t h e b edroom, a nd she’s thrown on the bed. Now, [ the defendant] stepped out of that bedroom a time or two beca use, re member, the re’s another individual that’s in that other

r o o m w o r k in g o nth a t c o mp u te r

– an o th e r juv e n il e , y o u n g [T

. L

. ] – Mr . [T .L .]. Yo u’ ve he ard fr om his mot he r, Ar le ne L ay

ne War d – Ms. Ward this morning, who te stified that y oung Mr. [T.L .] doesn’t live here . [T.L .] i s somewher e out in Ore g on at this point. S o, h e’ s not here . But he ’s in that other room.

The prosec utor later summarized the evidenc e at trial and argued that all of the state’s wi t n esses supported the victim’s testimony that the ra

pe occ urre d. I n part, the pr osecutor a rg ued:

. . . I jus t a sk y ou to c on sid e r al l of th is ev ide nc e . I a sk y ou to consider e v er y witness that y ou’ve he ard toda y . And what you’ve he ard fr om a ll the wi tne sse s toda y , lad ie s and g e ntl e me n – the e ve nts that y ou’ve he ard oc curr ed bec ause [the vi ctim] told y ou they did. What the doctor told y ou supports what [ the vi ctim] told y ou. What the po lic e tol d y ou

su pp or ts w hat [th e vic tim ] t old

y ou . N ob od

y e lse was there. The witnesses y ou hear d from y esterda y and the witnesse s y ou’ve he ard f

ro m t oday

wer e not there when this attac k occur red except for [the victim] . And so, when you listen to [ the victim] – and
y ou g et to assess all cre dibilit y of all witnesses. You g et to assess that

cre dibilit y

. . . . (Emphasis adde d.)

Then, duringthe def

endant’ s argument, counsel said:

Now, ladies a

nd g en t lemen, I

want y ou to rec all from [the vic tim ’s ] te sti mony

that sh e and

[the de fe nd ant ] wer e no t th e on ly people ther e that nig ht – that while this a lleg ed assa ult was occ urring [T. L .] was there. H e wa s there the whole time. And y ou even he ard an off icer testify he may have e ven bee n there when they went over – back ove r to [the defenda nt’s] house. W here is [ T

. L .]? I t’s the-15- State ’s burd e n to pr ov e thi s c a se

. Why isn ’t [T. L .] he re ? He c ou ld have be e n b ro ug ht he re

. L a die s and g e ntl e me n, [the pr os e c uto r] t old
y ou that just ear lier i n his closing that no one else was there. There

was someone else ther e. [T. L .] was th ere. Howe ver, he ’s not here

. [The victim] testified that [T. L .] could have hear d her sc rea ming, but we’ ll never knowbeca

use he’ s not here to tell us.

Th e state the n r e sp on de d d ur ingits re bu tta l argume nt:

Now, [ t h e d efe nse attorne y ] has told y ou that, y ou know, wher e is [T.L .], this other person that was in t he house. I don’t know. They called his mother

. His mother was up here on the stand. They found his mother. And his m other tol d y ou that he’s somew here out in Oreg on. Idon’t know whe re he is. But they talked to his mother and ca lled his mother to the witness stand and didn’t call him. Idon’t know wher e he is.

The de fenda

nt argues on appe al th at t h e p rosecution’s arguments improperly shifted the burd e n o f p ro of

and that th e de fe ns e wa s den ie d the ri g ht to pr e se nt an a de qu a te de fe ns e . He c la ims that the state’s argument was improper a nd that the trial cour

t’s denial of a

cura tive instruction was

err or.

First, conside ring in context t he st ate’ s initial argument, the prosecutor said that T.L . had not been pr esent at trial. I n a lat er portion of the state’ s closing a rg ument, the prosec utor argued that

n o n e o f th e witnesses w h o te s ti f ie d a t t r ia l w e r e p r e s e n t at t

h e s c e n e , o th e r

th anth e v ic ti m. We believe that, taken in context, the prosec utor’s statement that no one else was pre sent meant no other trial w it n e s s w a s p r e s e n t w h e nth e c r im e o c c u r r e d
, a s o p p o s e d

to n o o th e r

p e r s o n , in c lu d in g T

. L
., was pre sent for the crime.

No tw ith sta

nd ingthe inn oc uo us c ha

ra c ter of the state ’s ini tia l argume nt, the de fe ns e c ho se to f oc us a po rt ion of its argume nt on wh e the r the state ha d fa ile d to pro ve its c a se by fa ili ngto c a ll T.L . as a w it n es s

. T h e defense a rg ument implied that T.L . was not pre sent bec ause he could not

c or ro bo rate the vic tim’s te sti mony . T he state did no t ob je c t but c ho se in i ts r e bu tta l argume nt t o point out that the defense had called T.L .’s mother was a witness and that she had testified T.L . was in O re g on . T he state imp lie d th a t th e de fe ns e c ou ld h a ve pr of fe re d T .L . a s a

wi tne ss.

Te nn e sse e a l l o w s a

p r o s e c u t o r

t o c o m m e n to nt h e d e f

e n d an t ’ s f a i l u r e t o c a l l a

w i t n e s s in

cer tain circ umstances. St ate v. Fr ancis, 669 S.W .2d 85, 88 (Tenn. 1984). The Supreme Court has

rec og nized,“[I ]f a p arty

has it peculiar ly

within his power to produce witnesses whose te stimony would elucidate the transa ction, the fa ct that he doe s not do it create s the p re s u m p t ion that the testimony , if produce d, would have been unfavora ble,” Grave s v. United States, 150 U.S. 118, 121, 14 S. Ct . 40, 41 (1893). The “pre sumption” of Graves has, in modern times, bee n char acte rized as
a per missive inferenc e. See, e .g ., Fr ancis, 669 S.W.2d at 88.-16- As a pr e dic a te fo r c omm e nt o n a mis sin g wi tne ss, the e vid e nc e mus t sh ow th at th e wi tne ss h a d k no wl e dg e of

ma te ri a l f

a c ts, that a

re la tio ns hip e xists bet ween the wi tne ss a nd the pa rt y that w ou ld
natura lly incline the witness to favor th e p ar t y and that the missing witness was available to the pr ocess of the Court for the tr ial.

Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979). Te nnessee law has e stablished that a party who intends to arg ue an inf

ere nce of evidenc e fr om a missing witness should obtain a ruling from the court on whe ther the D elk re quirements have been me t before employ ing the argument. State v. Fr ancis, 669 S.W.2d 85, 90 (Tenn. 1984).

I n the pre sent ca se, the state’s initial re fer ence s to T.L . wer e not made in the c ontext of an attempt to invoke an unfa vorable infere nce to the defe ndant’s detriment relative to T.L .’s abse nce

a t tr ia l. On the oth e r ha

nd
, the de fe nd ant did a tte mpt duri ngits argume nt t o w e a ke n th e state ’s c a se by highlig hting the state’s failure to ca ll T.L . The state the n responde d to the defe ndant’s attempt to i nv ok e the inf

e re nc e by arguin g that th e de fe nd ant ha d a n e qu a l op po rt

un ity to p re se nt t

he wi tne ss b u t f a il e d to d o s o

. G iv e n th a t th e d e f e n d an t “ o p e n e d th e d o o r ” to th is li n e of ar g ument, we a re

un c on vin c e d th a t th e tr ia l c ourt a bu se d it s d isc re tio n in the re a ft e r de nying the de fe nd ant’ s r e qu e st for a curative instruction when the state responde d to the defe ndant’s missing witness a rg ument. See
g e ne ra lly State v. Pay

ton , 78 2 S.W. 2d 49 0, 49 6 (T e nn

. Cr im. Ap p. 19 89 ) (h old ing that tr ia l c ourt is aff orded w ide latitude in controlling arguments of counsel and it s actions will not be reve rsed a bsent showing an abuse of discre tion).

I n consideration of the fore g oing a nd the re cord a s a whole, the j udg ment of the trial c ourt is affirme d.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE