IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 19, 2016

STATE OF TENNESSEE v. MERVAN EYUP IBRAHIM

Appeal from the Criminal Court for Davidson County

No. 2012-D-3544 J. Randall Wyatt, Jr., Judge

No. M2015-01360-CCA-R3-CD – Filed August 22, 2016

Following a jury trial, the Defendant, Mervan Eyup Ibrahim, was convicted of two counts 

of aggravated rape, a Class A felony. See Tenn. Code Ann. § 39-13-502. The trial court 

subsequently sentenced the Defendant to twenty-five years‟ incarceration to be served at 

one hundred percent. In this appeal as of right, the Defendant contends (1) that the 

evidence was insufficient to sustain his convictions because the State failed to prove that 

the victim suffered a bodily injury; (2) that the trial court erred in denying his motion to 

suppress his interview with the police; (3) that the trial court erred in admitting the audio 

recording of a 911 call; (4) that the trial court erred in allowing a witness to read, 

verbatim, portions of a report made during a forensic medical examination of the victim 

and in admitting that report into evidence; (5) that the trial court erred in denying his 

motion for a mistrial after one of the witnesses stated that the Defendant “had engaged in 

the illegal sale of marijuana and the illegal acquisition of Xanax pills” on the night of the 

offenses; and (6) that the State committed prosecutorial misconduct during its rebuttal 

closing argument. Following our review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR., and TIMOTHY L. EASTER,JJ., joined.

David Harris (at motion for new trial hearing and on appeal); and Patrick T. McNally (at 

trial), Nashville, Tennessee, for the appellant, Mervan Eyup Ibrahim.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant 

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

OPINION
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FACTUAL BACKGROUND

The victim, J.L.,1testified at trial that in November 2012, she was “living a 

nomadic lifestyle,” addicted to the opioid Dilaudid, “recreationally” using cocaine, and 

“would prostitute sometimes” to support her addiction. J.L. testified that she had been 

prostituting herself for “a couple of months” on Dickerson Road in Nashville and that the

area was “known” for prostitution. J.L. stated that on November 12, 2012, she was 

picked up by a man on Dickerson Road, she went to the man‟s house, she performed oral 

sex on the man in exchange for forty or sixty dollars, and the man drove her back to 

Dickerson Road. J.L. testified that she “only had one date that night” because she “had 

gotten the money that [she] needed” to buy more Dilaudid. According to J.L, she walked 

along Dickerson Road for three or four hours after the man dropped her off because she 

was planning to meet a friend later.

At some point, the Defendant2got J.L.‟s attention and offered her a ride in his 

“green GMC Jimmy.” J.L. testified that she did not know the Defendant, but she did not 

hesitate to get in the Defendant‟s SUV because “[i]t was really cold” that night. 

According to J.L., she and the Defendant started “talking about partying,” and the 

Defendant “mentioned that he could get some Xanax.” J.L. told the Defendant that “it 

sounded . . . good to [her].” J.L. explained that she “really didn‟t have anything else to 

do . . . [and the Defendant] was talking about having a good time and drinking and 

getting some Xanax and [she] didn‟t see any reason not to” go with him. J.L. testified 

that at no point did she discuss having sex with the Defendant and that he never offered 

her drugs or money in exchange for sex.

The Defendant offered to buy J.L. a beer. J.L. accepted, and they stopped at a gas 

station where the Defendant purchased the beer and talked to someone J.L. did not know. 

After stopping at the gas station, J.L. believed that they “were going to [the Defendant‟s] 

friend‟s house to hang out and buy some Xanax and drink a beer.” The Defendant 

eventually took her to a house on Eckhart Drive. The Defendant got out of the SUV and 

told her to give him “a minute.” J.L. testified that she assumed the Defendant “was 

checking to see if his friend was home.” The Defendant returned and said, “[I]t‟s cool, 

come on.” J.L. recalled that as she and the Defendant walked to the front door, the 

Defendant said that “the electricity [was] off” inside the house.

J.L. testified that “as soon as the door [shut],” she realized “it was a vacant house.” 

There was no furniture in the house; J.L. recalled only seeing empty beer cans and other 

 

1

It is the policy of this court to refer to victims of rape by their initials.

2

J.L. admitted that she was shown two photographic lineups and that she was unable to identify her 

attacker. However, J.L. identified the Defendant in court as the man who attacked her. 
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trash. According to J.L., the Defendant‟s demeanor changed once the door closed. The 

Defendant grabbed her hair, said, “Come on, b---h,” and “pull[ed] [her] up the stairs.” 

J.L. testified that “[i]t hurt” when the Defendant pulled her hair. J.L. further testified that 

she “was in complete shock” and “was just kind of going with it because [the Defendant] 

was dragging [her].” The Defendant took J.L. into an empty bedroom and demanded, 

“[B]---h, you get undressed.” 

Once J.L. undressed, the Defendant pulled her into a bathroom, put his hands on 

her shoulders, “shoved [her] on [her] knees,” and “stuck his penis in [her] mouth.” J.L. 

testified that she was crying, shaking, telling the Defendant no, and trying to back away. 

The Defendant “smacked [her] two or three times with [his] open hand” and said, 

“Whose your daddy? B---h, you‟re mine now. If you do what I say I won‟t hurt you. I 

won‟t kill you.” J.L. tried to back away again, and the Defendant “grab[bed] the back of 

[her] head and shove[d] . . . his penis down [her] throat.” J.L. gagged and “actually threw 

up a little bit.” The Defendant responded by saying, “Yeah, b---h, I want you to throw 

up.” 

After J.L. vomited, the Defendant told her to stand up and “put [her] hands on the 

wall over the toilet.” J.L. testified that she was terrified, that she repeatedly told the 

Defendant “no,” and that she was crying and shaking the whole time. J.L. further 

testified that she “freaked out” when she realized that the Defendant was about to “stick 

his penis . . . in [her] anus.” J.L. told the Defendant that she did not “do that” and that 

she “physically [could not] do that.” The Defendant responded by saying, “What b---h” 

and then “did it anyway.” J.L. testified that it hurt when the Defendant penetrated her 

anus but that “thank God[,] it didn‟t last as long as [she] thought it would.” She quickly 

heard the Defendant say, “Damn, girl, I came all over you.” J.L. testified that she could 

feel “[h]is cum all over [her].” 

J.L. then sat down on the toilet, crying, and asked the Defendant if she could put 

her clothes back on because she was “freezing.” The Defendant told her “no.” After the 

Defendant got dressed, he went in the other room and “was going through [her] stuff.” 

The Defendant came back into the bathroom and told her not to leave the house until after 

he did. J.L. testified that she heard the Defendant “speed off” and watched from the 

bathroom window as the Defendant drove away. J.L. was able to find her clothes and get 

dressed. J.L. discovered that her money was gone. J.L. could not find the door, so she 

opened a window, pushed out the screen, and “tumbled out” onto a bush. 

J.L. ran to the first house she saw with “a big flood light” on. J.L. “[b]anged on 

the door” until a man answered. J.L. was “crying [and] telling him [that she] had just 

been raped.” The man called 911 for her, and the police arrived shortly thereafter. J.L. 

was taken to a hospital where a forensic medical examination was performed on her. J.L. 

had a scratch on her left arm from breaking the screen out of the window. J.L. testified 
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that she experienced pain while the Defendant penetrated her anus and that her anus hurt 

for “about a week.” J.L. also testified that her head “hurt a little bit” from being hit and 

that it hurt until she was “able to go home and sleep.” 

Tucker Daniel testified that he lived near the vacant house on Eckhart Drive. Mr. 

Daniel recalled that on November 12, 2012, the victim “was knocking pretty loudly” and 

“with a sense of urgency” on his door. When he saw the victim standing outside, Mr. 

Daniel noticed that she “seemed pretty distressed.” Mr. Daniel explained that she “kept 

looking over her shoulder, . . . kind of looking back and forth.” When he opened the 

door, the victim said that she had been raped and asked Mr. Daniel to call 911. Mr. 

Daniel testified that the victim “was very shaken up,” seemed “really panicked” and 

“very scared,” and acted like she “didn‟t want to stand outside any longer.” Mr. Daniel 

let the victim inside while he called 911. Mr. Daniel testified that he did not know the 

victim and had not seen her since that day.

An audio recording of the 911 call was played for the jury. At several points 

during the recording, J.L. can be heard crying in the background. Mr. Daniel begins the 

call by saying that “a lady just came to [his] door and said that she was raped.” Mr. 

Daniel gave his address and a description of J.L. to the 911 operator. Mr. Daniel stated 

that J.L. was “pretty messed up, pretty upset.” The 911 operator then began to ask 

several question which J.L. could hear. J.L. could be heard in the background answering 

the questions, followed by Mr. Daniel‟s repeating the answers back to the 911 operator. 

At one point, J.L. stated that she was “held hostage in that vacant house over there.” J.L. 

also stated that she did not know the rapist because she had just met him but that she 

thought his name was M.J. J.L. provided the 911 operator with a physical description of 

the Defendant and his SUV. 

Kristi Smith testified that she was a friend of the Defendant‟s and that she had an 

“interaction” with him at a gas station on November 12, 2012. Ms. Smith recalled that 

she saw J.L. with the Defendant that night. Ms. Smith testified that she did not know J.L. 

and that she had not seen her before or after November 12, 2012. Photographs from the 

gas station‟s surveillance system were entered into evidence at trial. The photographs 

showed the Defendant‟s SUV at the gas station, the Defendant‟s and Ms. Smith‟s

speaking to each other inside the gas station, and the Defendant‟s purchasing a beer.

Officers searching the vacant house on Eckhart Drive found one of the windows 

open with the screen torn off. They also found several beer cans, used condoms, and 

condom wrappers. The officers collected three used condoms, three beer cans, some 

condom wrappers, a toothbrush, and a cigarette butt from the house. Two swabs of the 

bathroom floor were also taken.
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Connie Barrow testified that she was a women‟s health nurse practitioner at 

Nashville General Hospital. Ms. Barrow performed a forensic medical examination of 

the victim on November 12, 2012. Ms. Barrow recalled that J.L. “was calm and 

collected” and even “laughed . . . at times” during the examination. Ms. Barrow noted 

that “there [was] an extremely wide gamut of ways that people present . . . emotionally” 

after a trauma like rape. Ms. Barrow testified that there were no marks or bruises on 

J.L.‟s face, neck, breasts, back, or buttocks. Ms. Barrow also noted that there were no 

injuries to J.L‟s scalp. However, Ms. Barrow testified that it was possible to feel pain 

“without whatever caused the pain leaving a mark.” Ms. Barrow recalled that there were 

some scratches on J.L.‟s stomach and thighs along with a scratch on one of her arms. 

Ms. Barrow took swabs from the victim‟s mouth, labia, perianal, and anus for 

subsequent forensic testing. Ms. Barrow observed redness around the victim‟s anus and 

“some tenderness there.” Ms. Barrow recalled that J.L. jerked away from her when she 

first attempted to insert the swab into her anus. Ms. Barrow testified that she asked J.L. 

when the last time was that she had voluntary sex. J.L. responded that she had oral sex 

“earlier that evening.” Ms. Barrow testified that J.L. tested positive for benzodiazepine 

and cocaine.

Ms. Barrow was allowed to read verbatim from the narrative portion of her report. 

This portion of the report detailed the victim‟s statements about what had happened that 

night, beginning with when the Defendant picked her up on Dickerson Road. Much of it 

was consistent with J.L.‟s testimony at trial, including her description of the attack inside 

the Eckhart Drive house. The narrative also included statements that the Defendant and 

J.L. “chit-chatted about pot and pills,” that the Defendant “got some Xanax,” and that the 

Defendant “sold some pot to some people in the parking lot” of the gas station. 

Subsequent forensic testing by the Tennessee Bureau of Investigation revealed the 

presence of sperm on the anal, perianal, and labia swabs taken from the victim. Sperm 

and blood were also found on the victim‟s jeans. A DNA profile was recovered from the 

sperm found on the anal swab of the victim, and it matched the Defendant‟s DNA profile. 

The other swabs were not tested for DNA. The forensic scientist who performed the 

DNA analysis testified that she started with the most “intimate sample” and stopped if 

she received a positive result, assuming that the sperm on the other samples came from 

the same individual. No forensic testing was performed on any of the items taken from 

the Eckhart Drive house. 

Detective Jason Mayo of the Metropolitan Nashville Police Department testified 

that he interviewed the victim on November 12, 2012. Det. Mayo recalled that J.L. “got 

upset a couple of times, cried a few times, was okay for some part of it, but seemed 

coherent and understood what was going on at the time.” Det. Mayo also recalled that 

J.L. appeared to be in pain and “was having trouble sitting.” Det. Mayo testified that he 
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searched the victim‟s clothes while she was being examined by Ms. Barrow and did not 

find any money. Det. Mayo admitted that he showed the victim two photographic 

lineups. The first photographic lineup did not include the Defendant. J.L. picked 

someone out of that lineup, but Det. Mayo testified that he did not consider that an 

identification because she said she was only sixty-percent sure. J.L. was unable to pick 

the Defendant‟s picture out of a second lineup. Det. Mayo testified that he interviewed 

the victim several times and that her story did not change.

Det. Mayo also interviewed the Defendant. An edited recording of Det. Mayo‟s 

interview with the Defendant was played for the jury. When Det. Mayo told the 

Defendant that he was investigating a rape, the Defendant denied raping anyone but 

admitted to frequenting prostitutes. Det. Mayo showed the Defendant a picture of the 

house on Eckhart Drive. The Defendant denied ever being at the house and said that he 

had never seen the house. Det. Mayo also showed the Defendant a picture of his SUV 

from the gas station surveillance footage and asked if there was a woman with him that 

night. The Defendant responded that there was not because “ain‟t no female been in that 

new car.” Det. Mayo showed the Defendant a picture of J.L., and the Defendant denied 

knowing her.

Det. Mayo then asked the Defendant why they would have found his DNA at the 

Eckhart Drive house. The Defendant immediately responded that it was because he had 

“f--ked a couple prostitutes in that house before.” The Defendant estimated that he had 

taken at least ten women to that house in the past. The Defendant explained that he 

would just leave his used condoms in the house and stated that all of the condoms found 

in the house were probably his. The Defendant initially stated that it had been several 

months since he had taken a woman to the Eckhart Drive house. However, when Det. 

Mayo asked the Defendant if he had done so in the last few weeks, the Defendant 

immediately responded that he had. 

Still, the Defendant denied that it was the victim. Instead, the Defendant claimed 

that it was an older prostitute, around forty-five years old, that he knew. The Defendant 

claimed that he picked this woman up at a gas station near the Eckhart Drive house. The 

Defendant continued to deny knowing the victim. Det. Mayo then asked the Defendant 

why his DNA was found on the victim. The Defendant responded that he “probably done 

f--ked her.” The Defendant said that he was not sure if he had picked up J.L. because he 

“picked up a lot of girls” and that he did not “remember her face in the last two weeks.” 

The Defendant explained that he “holler[ed] at a lot a girls . . . whether they prostituting 

or not” because he was “just a nutter . . . [and he] just want[ed] to nut.” 

Det. Mayo then turned the conversation back to the gas station on November 12, 

2012. The Defendant said that he did not remember buying a beer that night, but if he did 

it was probably for a woman in his SUV. The Defendant then denied that he told Det. 
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Mayo at the start of the interview that there had never been any women in the SUV. The 

Defendant admitted to selling ten dollars‟ worth of marijuana at the gas station. The 

Defendant stated that he did not remember having a woman with him or going to the 

Eckhart Drive house to have sex that night. However, the Defendant stated that if he was 

on the surveillance video buying a beer, then he probably did have a woman with him 

that night. The Defendant explained that he would typically purchase a beer for

prostitutes before taking them to the Eckhart Drive house to have sex. 

The Defendant then offered that he had probably purchased the beer for the older 

prostitute he had mentioned earlier. The Defendant reiterated that J.L. was not in his 

SUV that night. Det. Mayo then asked why his DNA would be on the victim “that 

night.” The Defendant responded that he had no idea but that “DNA don‟t lie.” The 

Defendant again stated that he did not remember picking up J.L. and that was probably 

because he had “done picked up a lot of girls.” Det. Mayo then confronted the Defendant 

with the graphic details from J.L.‟s statement. At that point, the Defendant admitted to 

taking J.L. to the Eckhart Drive house but claimed that he had paid her twenty dollars to 

have sex with him. The Defendant denied having anal sex with the victim and then

immediately said that he “probably might a have, though.” 

The Defendant claimed that he did not initially recognize the picture of J.L. that 

Det. Mayo had shown him because J.L. looked “junked out” the night he picked her up. 

The Defendant also theorized that he could not remember the victim because he 

frequently used marijuana. The Defendant admitted to picking up J.L. on Dickerson 

Road and that he “was a little aggressive to her.” However, the Defendant denied raping 

the victim. The Defendant insisted that he paid J.L. twenty dollars in exchange for the 

sex acts she performed. Det. Mayo asked the Defendant why he thought J.L. would lie 

about being raped. The Defendant responded that it was because he was so “good 

looking” and that she was not. 

Det. Mayo confronted the Defendant with the fact that he did not find any money 

in the victim‟s clothes on November 12, 2012. The Defendant again insisted that he gave 

the victim twenty dollars. The Defendant said that he did not know what the victim did 

with the money and suggested that she probably bought crack cocaine with it. Later, the 

Defendant claimed that J.L. was lying about being raped because he left the house 

without paying her. The Defendant said that he had done that to prostitutes in the past 

and did it to J.L., even though he had insisted earlier in the interview that he had paid her. 

Det. Mayo then told the Defendant that the victim had said that she had never been anally 

penetrated before and that she had injuries to her anus. The Defendant responded by 

saying, “She‟s a prostitute, I know I ain‟t the first one in her ass.” The Defendant 

concluded the interview by insisting that he “did not rape [that] ho.” 
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At the conclusion of its proof, the State made the following election of offenses: 

Count 1 involved the Defendant‟s penetrating J.L.‟s mouth with his penis, and Count 2 

involved the Defendant‟s penetrating J.L.‟s anus with his penis. Based upon the 

foregoing evidence, the jury convicted the Defendant of two counts of aggravated rape. 

At a subsequent sentencing hearing, the trial court sentenced the Defendant to twentyfive years‟ incarceration, to be served at one hundred percent, for both convictions. The 

trial court ordered the sentences to be served concurrently, for a total effective sentence 

of twenty-five years. This timely appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to sustain his 

convictions for aggravated rape. Specifically, the Defendant argues that the State failed 

to prove that J.L. suffered a bodily injury during the offenses because there was no 

evidence of physical injuries to accompany J.L.‟s testimony that she was in pain while 

she was raped. The State responds that the evidence was sufficient to sustain the 

convictions for aggravated rape.

An appellate court‟s standard of review when the defendant questions the 

sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 

319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury 

has resolved all conflicts in the testimony and drawn all reasonable inferences from the 

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); 

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness 

credibility, conflicts in testimony, and the weight and value to be given to evidence were 

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a 

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the 

evidence is insufficient to support the jury‟s verdict.” Bland, 958 S.W.2d at 659; State v. 

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely 

upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d 

125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State‟s 

proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 

1983). Put another way, the State is not burdened with “an affirmative duty to rule out 

every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 

326.
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The foregoing standard “applies to findings of guilt based upon direct evidence, 

circumstantial evidence, or a combination of [both] direct and circumstantial evidence.” 

State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and 

circumstantial evidence should be treated the same when weighing the sufficiency of 

such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this 

court “on appeal of a conviction is not to contemplate all plausible inferences in the 

[d]efendant‟s favor, but to draw all reasonable inferences from the evidence in favor of 

the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011). 

Aggravated rape “is unlawful sexual penetration of a victim by the defendant . . . 

accompanied by . . . [t]he defendant caus[ing] bodily injury to the victim.” Tenn. Code 

Ann. § 39-13-502(a)(2). As pertinent to our review, the definition of “sexual 

penetration” includes fellatio and anal intercourse. Tenn. Code Ann. § 39-13-501(7). 

The Defendant does not challenge the jury‟s conclusion that he unlawfully penetrated the 

victim‟s mouth and anus. Instead, the Defendant contends that his unlawful sexual 

penetration of the victim was not accompanied by his causing a bodily injury to her. 

“Bodily injury” is statutorily defined as including “a cut, abrasion, bruise, burn or 

disfigurement, and physical pain or temporary illness or impairment of the function of a 

bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(2) 

(emphasis added).

This court has previously held that a victim‟s testimony that she felt pain as a 

result of the defendant‟s actions was sufficient to establish a bodily injury. See State v. 

Smith, 891 S.W.2d 922, 928 (Tenn. Crim. App. 1994) (holding that the victim‟s 

statements that she suffered physical pain when the defendant “placed his entire body 

weight on” her chest and penetrated her vagina was sufficient to establish a bodily 

injury); State v. Terry Clark, No. M2003-01925-CCA-R3-CD, 2004 WL 315141, at *2 

(Tenn. Crim. App. Feb. 19, 2004) (holding that the victim‟s testimony that the 

defendant‟s kick to his leg “did hurt at the time” was sufficient to establish a bodily 

injury); cf. State v. Norman McDowell, No. W2014-00301-CCA-R3-CD, 2015 WL 

554873, at *5 (Tenn. Crim. App. Feb. 10, 2015) (holding that the victim‟s testimony that 

she felt “throbbing inside” during rape by itself “fail[ed] to rise to the relatively low 

threshold of proving physical pain”).

Here, J.L. testified that “[i]t hurt” when the Defendant pulled her hair to drag her 

upstairs. J.L. also testified that the Defendant “smacked [her] two or three times with 

[his] open hand” while he forced his penis inside her mouth. J.L. testified that her head 

“hurt a little bit” from being hit and that it continued to hurt until she was “able to go 

home and sleep.” J.L. further testified that the Defendant “grab[bed] the back of [her] 

head and shove[d] . . . his penis down [her] throat” until she gagged and regurgitated. 

While Ms. Barrow testified that she did not see any marks or bruises to J.L.‟s face or 
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scalp, J.L.‟s testimony alone was sufficient to establish that she felt physical pain while 

the Defendant penetrated her mouth. 

J.L. testified that she “freaked out” when she realized that the Defendant was 

about to penetrate her anus. J.L. told the Defendant that she “physically [could not] do 

that.” J.L. testified at trial that it hurt when the Defendant penetrated her anus and that 

her anus hurt for “about a week” afterward. Ms. Barrow testified that she observed 

redness around J.L.‟s anus and “some tenderness there.” Ms. Barrow further testified that 

J.L. jerked away from her when she attempted to insert a swab into J.L.‟s anus. Det. 

Mayo testified that J.L. appeared to be in pain and “was having trouble sitting” when he 

spoke to her on November 12, 2012. As such, there was sufficient evidence that J.L. felt 

physical pain accompanying the Defendant‟s penetration of her anus. Accordingly, we 

conclude that the evidence was sufficient to sustain the Defendant‟s convictions for 

aggravated rape. 

II. Motion to Suppress

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

his interview with Det. Mayo. The Defendant argues that he did not knowingly and 

intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966), because 

when he signed the rights waiver form he believed that he was going to be questioned 

“about a pending stalking case” rather than this case. The State responds that the 

Defendant “unambiguously understood and waived [his] rights” and that Det. Mayo 

cleared “any initial confusion about the offense at issue” up “quickly.” 

Prior to trial, the Defendant filed a motion to suppress his interview with Det. 

Mayo. The Defendant‟s motion stated that the Defendant was arrested on December 1, 

2012, on unrelated charges. The motion further stated that after the Defendant was 

booked into the Davidson County Jail, he was served with an outstanding warrant 

charging him with stalking. Det. Mayo interviewed the Defendant on December 3, 2012. 

The Defendant‟s motion alleged that when he was advised of his Miranda rights and 

signed the rights waiver form, he believed that Det. Mayo “was going to question him 

about the stalking case.” 

The video recording of Det. Mayo‟s interview with the Defendant was played for 

the trial court. The video begins with the Defendant‟s telling Det. Mayo that he knew 

what he was there to talk about because he saw the victim‟s name on Det. Mayo‟s 

paperwork.3 Det. Mayo then told the Defendant that he did not have to talk, and the 

Defendant responded that he wanted to. Det. Mayo reviewed the rights waiver form with 

the Defendant, and the Defendant signed the form. 

 

3

The victim in the stalking case and the victim in this case had the same first name.
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At that point, Det. Mayo asked the Defendant if he knew what they were going to 

talk about. The Defendant responded that it was about his stalking case. Det. Mayo 

informed the Defendant that he was investigating a rape, and the Defendant responded 

that he had no idea then what it was about because he had never raped anyone. At no 

point after that did the Defendant object to Det. Mayo‟s continued questioning or attempt 

to invoke his Miranda rights.

In denying the Defendant‟s suppression motion, the trial court acknowledged that 

the Defendant “first thought the detective wanted to talk to him about a stalking case.” 

However, the trial court found that Det. Mayo “did not attempt to deceive [the 

Defendant] or mislead him about that and immediately and clearly explained that he 

wanted to talk about a sexual assault case.” The trial court further found that the 

Defendant “chose to continue the interview.” The trial court concluded that “based on 

the video[,] . . . [the] choice was freely made by the [D]efendant in his own volition.”

On appellate review of suppression issues, the prevailing party “is entitled to the 

strongest legitimate view of the evidence adduced at the suppression hearing as well as 

all reasonable and legitimate inferences that may be drawn from the evidence.” State v. 

Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 

(Tenn. 1996)). Questions about “the assessment of witness credibility, the weight and 

value of evidence, and the resolution of evidentiary conflicts are entrusted to the trial 

court” as the trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the 

trial court “makes findings of fact in the course of ruling upon a motion to suppress, those 

findings are binding on appeal unless the evidence in the record preponderates against 

them.” Id. Conversely, a trial court‟s conclusions of law along with its application of the 

law to the facts are reviewed de novo without any presumption of correctness. Id.

A defendant‟s statements “made during the course of [a] custodial police 

interrogation are inadmissible as evidence in a criminal case unless the State establishes 

that the defendant was advised of certain constitutional rights and waived those rights.” 

State v. Anderson, 937 S.W.2d 851, 853 (Tenn. 1996) (citing Miranda, 384 U.S. at 444)). 

There is no dispute that the Defendant was in police custody when Det. Mayo 

interrogated him. Nor is there any dispute that Det. Mayo advised the Defendant of his 

Miranda rights and that the Defendant freely signed a rights waiver form. Rather, the 

Defendant contends that this waiver was not effective because, at the time he made the 

waiver, he mistakenly believed that he was going to be questioned about a stalking case. 

Contrary to the Defendant‟s argument, “the failure of law enforcement officials to 

inform a suspect of all the possible subjects of interrogation is not relevant to determining 

whether the suspect voluntarily, knowingly, and intelligently waived his or her Fifth 

Amendment privilege.” State v. Green, 995 S.W.2d 591, 600 (Tenn. Crim. App. 1998) 

(citing Colorado v. Spring, 479 U.S. 564 (1987)). Likewise, Miranda “does not require 
-12-

the interrogating officers to advise a defendant of the nature of the crime under 

investigation.” Id. (quoting State v. Stearns, 620 S.W.2d 92, 95 (Tenn. Crim. App. 

1981)) (internal quotation marks omitted). Nor does Miranda require that a suspect be 

“informed of the purpose and scope of the pending investigation.” State v. Kristin M. 

Meyers, No. E2012-00494-CCA-R3-CD, 2013 WL 1094981, at *7 (Tenn. Crim. App. 

Mar. 18, 2013). 

While the Defendant initially believed that Det. Mayo was there to question him 

about a stalking case, Det. Mayo “immediately and clearly explained that he wanted to 

talk about a sexual assault case.” The Defendant voluntarily, knowingly, and 

intelligently waived his Miranda rights prior to being informed that Det. Mayo was 

investigating a rape. The Defendant did not object to Det. Mayo‟s continued questioning 

or attempt to revoke his waiver after being informed about what Det. Mayo was 

investigating. As such, the trial court did not err in denying the Defendant‟s suppression 

motion. Accordingly, we conclude that the Defendant is not entitled to relief on this 

issue. 

III. 911 Call

The Defendant contends that the trial court erred in admitting the audio recording 

of Mr. Daniel‟s 911 call. The Defendant argues that the trial court erred in concluding 

that the recording was admissible hearsay under the excited utterance exception because 

Mr. Daniel was “not the victim.” The Defendant additionally argues that the recording 

“was cumulative” and that its probative value was substantially outweighed by the danger 

of unfair prejudice because the victim could be “heard crying in the background.” The 

State responds that the statements of both Mr. Daniel and J.L. heard on the recording 

were excited utterances and, therefore, admissible as an exception to the prohibition 

against hearsay. The State further responds that the recording was neither cumulative nor 

unfairly prejudicial.

Prior to trial, the Defendant filed a motion to exclude the audio recording of Mr. 

Daniel‟s 911 call, arguing that the “[s]tatements by Mr. [Daniel] recorded on the 911 tape 

[did] not fall within a hearsay exception.” The motion also argued that the 911 recording 

had no probative value, was unfairly prejudicial because J.L. could be heard in the 

background crying, and was “needless[ly] cumulative evidence.” The trial court 

overruled the Defendant‟s motion and concluded that the statements on the recording met 

the excited utterance exception to the hearsay rule. The trial court concluded that “to get 

[the] type of information at his front door at 8:53 p.m.” that Mr. Daniel did “would cause 

somebody to be a little bit excited.”

“Hearsay” is defined as “a statement other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 
-13-

asserted.” Tenn. R. Evid. 801(c). A “statement” is “(1) an oral or written assertion or (2) 

nonverbal conduct of a person if it is intended by the person as an assertion.” Tenn. R. 

Evid. 801(a). Hearsay is not admissible except as allowed by the rules of evidence or 

other applicable law. Tenn. R. Evid. 802. The questions of whether a statement is 

hearsay or fits under one of the exceptions to the hearsay rule are questions of law and 

subject to de novo review by this court. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.

2015), cert. denied, 136 S. Ct. 335 (2015).

One exception to the prohibition against hearsay evidence is for excited utterances. 

An excited utterance is “[a] statement relating to a startling event or condition made 

while the declarant was under the stress or excitement caused by the event or condition.” 

Tenn. R. Evid. 803(2). J.L.‟s statements clearly satisfied these requirements. This court 

has previously held that rape is a startling event or condition for purposes of the excited

utterance exception. State v. Person, 781 S.W.2d 868, 872 (Tenn. Crim. App. 1989). 

J.L. testified that she immediately ran to Mr. Daniel‟s house after she escaped the vacant 

house and that she was crying and “[b]ang[ing]” on his door. Mr. Daniel testified that 

J.L. “seemed pretty distressed,” “very shaken up,” “really panicked,” and “very scared.” 

J.L. can be heard crying during portions of the 911 recording, and Mr. Daniel stated on 

the recording that she was “pretty messed up, pretty upset.” Accordingly, we conclude 

that her statements were admissible under the excited utterance exception.

The crux of the Defendant‟s argument is that the entire 911 recording was 

inadmissible because Mr. Daniel was not a victim; therefore, his statements could not be

excited utterances. We note that, while “the „startling event‟ is usually the act or 

transaction upon which the legal controversy is based . . ., a subsequent startling event or 

condition which is related to the prior event can produce an excited utterance.” State v. 

Gordon, 952 S.W.2d 817, 820 (Tenn. 1997). As such, our supreme court has held that 

when a person is visibly upset and announces that they have been the victim of a violent 

crime, “that announcement is a „startling event‟ sufficient to suspend the normal, 

reflective thought process of [a] person who hears it.” State v. Franklin, 308 S.W.3d 799, 

824 (Tenn. 2010). As such, Mr. Daniel‟s statements, made shortly after J.L. knocked on 

his door and told him that she had been raped, were also admissible under the excited 

utterance exception.

The Defendant also submits that the audio recording of the 911 call was unfairly 

prejudicial and cumulative. Specifically, he argues that the recording was cumulative in 

nature because both J.L. and Mr. Daniel testified at trial and that “the recording‟s 

probative value was substantially outweighed by the danger of unfair prejudice because 

[J.L.] can be heard crying in the background.” Tennessee Rule of Evidence 403 prohibits 

the introduction of even relevant evidence “if its probative value is outweighed by the 

danger of unfair prejudice . . . or by considerations of . . . needless presentation of 
-14-

cumulative evidence.” The victim was admittedly a prostitute, and the Defendant 

presented a defense of consent. Here the 911 recording was relevant to portray J.L.‟s 

emotional state immediately following the sexual encounter and her credibility was a 

central issue in the trial. See State v. Matthew Douglas Cox, No. E1999-00351-CCA-R3-

CD, 2000 WL 1562920, at *15 (Tenn. Crim. App. Oct. 20, 2000) (“We must agree with 

the State that the primary purpose in introducing the 911 tape recording was, to the 

contrary, to provide the jurors with the best possible view of P.C.‟s demeanor 

immediately following these offenses and so enhance the jurors‟ ability to judge the 

credibility of P.C.‟s accusations of rape.”). Accordingly, we conclude that the trial court 

did not err in admitting the recording of the 911 call.

IV. Forensic Medical Examination Report

The Defendant contends that the trial court erred in allowing Ms. Barrow to read, 

verbatim, portions of her report made during the forensic medical examination of the 

victim and in admitting that report into evidence. The Defendant argues that J.L.‟s 

statements contained in the report were “not pertinent to medical diagnosis and 

treatment” and, therefore, the report was not admissible under the hearsay exception for 

statements made for medical diagnosis and treatment. The State responds that the 

portions of the report in which J.L. described the rapes and her injuries before and after 

they had occurred were admissible as statements made for medical diagnosis and 

treatment. The State further responds that the portions of the report which described the 

events leading up to the rapes were admissible as prior consistent statements.

During Ms. Barrow‟s testimony, the State sought to introduce the report from her 

forensic medical examination of J.L. and “to go over the report with Ms. Barrow in front 

of the jury.” Trial counsel objected to “starting her examination by going over her 

report” and stated that he believed “the witness [was] the best evidence.” The prosecutor 

asked to approach the bench and argued that the report was admissible under the hearsay 

exception for statements made for medical diagnosis and treatment. Trial counsel then 

argued that the report was simply Ms. Barrow‟s “report” rather than “statements that are 

introduced for medical purposes.” The trial court overruled trial counsel‟s objection, 

concluding that the report was admissible under the hearsay exception for statements 

made for medical diagnosis and treatment. 

The prosecutor then asked Ms. Barrow to read from a section of the report which 

provided a “brief description of [the] event.” Trial counsel objected again, arguing that 

this portion of the report was hearsay and “needless accumulative redundation [sic] of the 

[victim‟s] testimony.” The trial court overruled the objection “on this particular type of 

medical examination.” Ms. Barrow then read her extensive statement on what J.L. had 

told her regarding the rapes. In the excerpt, J.L. described her encounter with the 
-15-

Defendant, beginning with when he picked her up on Dickerson Road and ending after 

she escaped the Eckhart Drive house through the window. 

Much of the excerpt was consistent with and tracked J.L.‟s testimony at trial, 

including her description of the attack inside the Eckhart Drive house. The excerpt also 

included a statement that the Defendant “got some Xanax” and a brief statement that he 

“sold some pot to some people in the parking lot of the gas station.” The statement about 

the Defendant‟s selling marijuana was redacted from the physical report that was entered 

into evidence. However, the Defendant ultimately rejected the trial court‟s offer to 

provide a curative jury instruction regarding Ms. Barrow‟s having read the statement 

during her testimony.

As stated above, hearsay is not admissible except as allowed by the rules of 

evidence or other applicable law. Tenn. R. Evid. 802. We review the issue of whether a 

trial court erred in admitting hearsay evidence under a de novo standard of review. 

Kendrick, 454 S.W.3d at 479. One exception to the prohibition against hearsay is for 

“[s]tatements made for purposes of medical diagnosis and treatment describing medical 

history; past or present symptoms, pain, or sensations; or the inception or general 

character of the cause or external source thereof insofar as reasonably pertinent to 

diagnosis and treatment.” Tenn. R. Evid. 803(4). “However, some statements that the 

declarant intends to be used for diagnosis and treatment, such as statements about the 

cause of the symptoms, are not always admissible.” State v. Williams, 920 S.W.2d 247, 

256 (Tenn. Crim. App. 1995).

“[J]ust because statements are recorded as part of [a patient‟s] medical history 

does not mean that the entire history is admissible” under this exception. Williams, 920 

S.W.2d at 256. Instead, “any statements in the patient‟s history not pertinent to medical 

diagnosis and treatment should . . . [be] redacted.” Id. This has traditionally included 

“extraneous facts such as the name or identity of the perpetrator of a crime [which] have 

not been deemed „reasonably pertinent‟ to medical diagnosis and treatment.” Id. Here, 

J.L.‟s statements, beginning with her description of the Defendant‟s pulling her hair and 

dragging her up the steps of the Eckhart Drive house to her description of injuring her 

arm during her escape from the house, were reasonably pertinent to medical diagnosis 

and treatment and were admissible. However, the remainder of the report, the statements 

regarding the events before the rapes and the description of the assailant, should have 

been redacted. See id. at 256-57.

Nevertheless, we conclude that the admission of hearsay statements contained in 

the forensic medical examination report was harmless error. See Tenn. R. App. P. 36(b) 

(providing that “[a] final judgment from which relief is available and otherwise 

appropriate shall not be set aside unless, considering the whole record, error involving a 

substantial right more probably than not affected the judgment or would result in 
-16-

prejudice to the judicial process”). This is true “in light of the other evidence in the 

record describing the events of the rape[s] and identifying the Defendant as the 

perpetrator.” Williams, 920 S.W.2d at 257; see also State v. Spratt, 31 S.W.3d 587, 601 

(Tenn. Crim. App. 2000) (holding that the admission of hearsay statements contained in a 

medical report “was clearly harmless error” when those statements “were merely 

cumulative of the victim‟s testimony at trial”). Accordingly, we conclude that this issue 

provides the Defendant no relief.

V. Mistrial

The Defendant contends that the trial court erred in denying his motion for a 

mistrial after Ms. Barrow read statements from the forensic medical examination report 

that the Defendant “had engaged in the illegal sale of marijuana and the illegal 

acquisition of Xanax pills.” The Defendant argues that these statements caused him to be 

“saddled erroneously with the specter of [being an] illegal drug purchaser and was fatal to 

[his] visage to the jury.” The State responds that the trial court did not abuse its 

discretion in denying the Defendant‟s motion for a mistrial.

At the conclusion of Ms. Barrow‟s testimony, as the trial court was breaking for 

lunch, trial counsel moved for a mistrial. Trial counsel noted that the trial court had 

earlier granted his motion barring any reference to the Defendant‟s “criminal activity or 

convictions” and that Ms. Barrow had read from the forensic medical examination report 

J.L.‟s statement that the Defendant had “sold marijuana during their entourage [sic] that 

night.” Trial counsel acknowledged that the State “was very careful in not having [J.L. or 

Ms. Smith] testify about that.” The prosecutor responded by noting that she had “been 

very careful not to illicit any testimony regarding the [D]efendant‟s prior criminal history 

or prior bad acts.” The prosecutor further responded that the redacted version of the 

Defendant‟s interview, that had been approved by trial counsel and that she planned to 

introduce later during the trial, also contained a statement from the Defendant that he sold 

some marijuana that night.

The trial court denied the Defendant‟s motion for a mistrial, concluding that the 

statement about his sale of marijuana was not “a prior bad act in violation of [the pretrial] 

motion in limine” because it was “going on during the time that this incident was taking 

place.” The trial court offered to provide a curative instruction to the jury, but trial 

counsel declined because he was afraid it would bring more attention to the statement. 

The statement was redacted from the physical copy of the report that was entered into 

evidence. Trial counsel then objected to the future introduction of the Defendant‟s 

interview with Det. Mayo. The trial court overruled trial counsel‟s objection. Trial 

counsel did not renew his objection or his motion for a mistrial when the interview was 

introduced into evidence during Det. Mayo‟s testimony.
-17-

The determination of whether to grant a mistrial lies within the sound discretion of 

the trial court and should be granted “only in the event a „manifest necessity‟ that 

requires such action.” State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998) (appendix). The 

burden of establishing a manifest necessity lies with the party seeking the mistrial. State 

v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The purpose for declaring 

a mistrial is to correct damage done to the judicial process when some event has occurred 

which precludes an impartial verdict.” Williams, 929 S.W.2d at 388. A trial court‟s 

decision regarding whether to grant a mistrial will only be overturned upon a showing of 

an abuse of discretion. Id.

When determining whether a manifest necessity exits, “no abstract formula should 

be mechanically applied and all circumstances should be taken into account.” State v. 

Mounce, 859 S.W.2d 319, 322 (Tenn. 1993). In addressing whether a mistrial was 

necessary because of inappropriate testimony from a witness, our supreme court has used 

the following nonexclusive factors: “(1) whether the State elicited the testimony, or 

whether it was unsolicited and unresponsive; (2) whether the trial court offered and gave 

a curative jury instruction; and (3) the relative strength or weakness of the State‟s proof.” 

State v. Nash, 294 S.W.3d 541, 547 (Tenn. 2009). 

Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show that person‟s actions were in conformity with the character 

trait. Tenn. R. Evid. 404(b). With respect to the Defendant‟s “illegal acquisition of 

Xanax pills,” we note that the Defendant made no objection to these statements prior to 

or during the trial. See Tenn. R. Evid. 103(a)(1) (providing that error “may not be 

predicated upon a ruling which admits . . . evidence unless a substantial right of the party 

is affected” and “a timely objection . . . appears of record, stating the specific ground of 

objection if the specific ground was not apparent from the context”). Additionally, this 

evidence was likely admissible as an exception to Rule 404(b) in order to provide the jury 

with necessary contextual background. See State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 

2000).

With respect to the statement that the Defendant sold marijuana on the night of the 

offenses, we conclude that the trial court did not abuse its discretion in denying the 

Defendant‟s motion for a mistrial. Here, Ms. Barrow‟s testimony was not in response to 

a direct question from the prosecutor. Instead, it was a brief statement read in the middle 

of Ms. Barrow‟s lengthy narrative of what J.L. had told her about the rapes. The trial 

court offered to provide a curative instruction to the jury, but trial counsel rejected that 

offer. Also, the State‟s case against the Defendant was relatively strong. 

Furthermore, the statement was redacted from the physical copy of the report and 

the only other mention of the drug sale was a very brief statement during the Defendant‟s 

interview with Det. Mayo. While trial counsel did object to that statement, he did not 
-18-

renew his motion for a mistrial after it was introduced into evidence. Additionally, trial 

counsel‟s defense was based upon the fact that the Defendant had committed another 

crime, patronizing a prostitute. The Defendant did not object to the legion of references 

of his having patronized other prostitutes in the past that were contained in his interview 

with Det. Mayo. Accordingly, we conclude that this issue, as presented by the 

Defendant, has no merit. 

VI. Prosecutorial Misconduct

The Defendant contends that the State committed prosecutorial misconduct during 

its rebuttal closing argument. The Defendant argues that the prosecutor “impermissibly 

shifted the burden of proof” during her rebuttal closing argument by stating that “the 

defense” had “subpoena power too” and that “the defense had the opportunity to test 

[physical evidence] if they wanted to.” The State responds that the prosecutor‟s 

comments “were proper in [the] context” that trial counsel had insinuated during his 

closing argument “that the State‟s witnesses were incompetent or were hiding the ball.”

During his closing argument, trial counsel stated that evidence taken from the 

Eckhart Drive house was “being ignored” by the Tennessee Bureau of Investigation. 

Trial counsel also criticized the forensic scientists for not attempting to obtain a DNA 

profile from the swabs taken from J.L.‟s perianal and labia. Trial counsel stated that it 

was “irresponsible to stop” with the anal swab because J.L. was a prostitute who had 

“made statements that she . . . had sex with other men that day.” Trial counsel accused 

the police of having “ignored things” and “excused things.” Trial counsel further accused 

the police of not conducting “a thorough investigation,” which caused “holes and gaps” 

in the State‟s case. Trial counsel concluded that pieces of evidence were not subjected to 

further forensic testing because the State did not “want to test” them for fear that it 

“might end up with a piece of the puzzle that [did not] fit” its theory of the case.

In response, the prosecutor made the following statement during her rebuttal:

. . . I want to be very very very very clear about this, I agree, the 

defense has no burden of proof. They don‟t have to put on any evidence in 

this case.

The burden never shifts. It‟s always on the State, but to stand up 

here and act like the State is trying to keep something from you when the 

defense knows good and well that they have subpoena power too, they have 

access to labs as well and if they wanted to - -
-19-

At that point, trial counsel objected to the prosecutor‟s arguing facts “outside the record.” 

The trial court overruled trial counsel‟s objection, and the prosecutor continued on with 

her rebuttal.

A short time later, the prosecutor made the following statement:

There is no conspiracy between the TBI and the DA‟s office to keep 

evidence from you. Now, you heard the testimony of the TBI person, you 

know, they have got a lot of things out there that they have got to test. 

There is a lot of things for them to do, once they met, once they find proof 

that is conclusive proof this person had sex with this person [and] this 

person says that it was not consensual, they stopped examining it. That 

doesn‟t mean that anybody is trying to keep anything from you and once 

again, you know, the defense had the opportunity to test that if they wanted 

to.

Trial counsel again objected but argued that the prosecutor was “shifting the burden of 

proof to the defense.” The trial court overruled the objection, and the prosecutor finished 

her rebuttal argument. The trial court instructed the jury that the burden of proof “never 

shifts, but remains on the State throughout the trial of the case,” and that the Defendant 

was “not required to prove his innocence.”

Closing arguments “have special importance in the adversarial process,” and the 

parties “have an ancient right to make closing arguments.” State v. Banks, 271 S.W.3d 

90, 130 (Tenn. 2008). Closing arguments allow the parties “to present their theory of the 

case and to point out the strengths and weaknesses in the evidence to the jury.” Id. 

Attorneys “should be given great latitude in both the style and the substance of their 

arguments.” Id. at 131. This leeway often results in closing arguments in criminal cases 

having a “rough and tumble quality” to them. Id. (quoting State v. Skakel, 888 A.2d 985, 

1060-61 (Conn. 2006)). However, while attorneys “may strike hard blows, . . . [they are] 

not at liberty to strike foul ones.” Id. (quoting Berger v. United States, 295 U.S. 78, 88 

(1935)).

“[A] prosecutor‟s closing argument must be temperate, must be based on the 

evidence introduced at trial, and must be pertinent to the issues in the case.” Banks, 271 

S.W.3d at 131. “A criminal conviction should not be lightly overturned solely on the 

basis of the prosecutor‟s closing argument.” Banks, 271 S.W.3d at 131. Instead, “an 

improper closing argument will not constitute reversible error unless it is so inflammatory 

or improper that it affected the outcome of the trial to the defendant‟s prejudice.” Id. In 

reviewing the propriety of a prosecutor‟s closing argument, this court considers: 
-20-

(1) the conduct at issue in light of the facts and circumstances of the case, 

(2) the curative measures undertaken by the trial court and the prosecution, 

(3) the intent of the prosecutor in making the improper argument, (4) the 

cumulative effect of the improper argument and any other errors in the 

record, and (5) the relative strengths and weaknesses of the case.

Id.

We conclude that the State‟s rebuttal argument was prompted by and made in 

response to trial counsel‟s argument that law enforcement personnel should have 

conducted further examination of the evidence and that, therefore, no prosecutorial 

misconduct occurred. See State v. John Allen Payne, Martha Payne, and Roy Newberry, 

No. 1168, 1988 WL 82958, at *3 (Tenn. Crim. App. Aug. 12, 1988) (holding that there 

was no prosecutorial misconduct in prosecutor‟s rebuttal argument that the defendant 

“was entitled to call character witnesses” when “it was made in response to defense 

counsel‟s argument that the [S]tate had failed to rebut the defendants‟ testimony”); see 

also United States v. Wimbley, 553 F.3d 455, 461-62 (6th Cir. 2009) (holding that “the 

prosecutor‟s argument that the defense had the opportunity to test for fingerprints or 

DNA, but did not do so” was “a proper response to defense counsel‟s statements that the 

government had not performed proper testing of the evidence”). Accordingly, we 

determine that this issue is without merit.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of 

the trial court are affirmed.

_________________________________ 

D. KELLY THOMAS, JR., JUDGE