### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 6, 2001 Sessi

on



### STATE OF TENNESSEE v. STEVEN LEE WHITEHEAD

Direct Appeal from the Circuit Court for Madison County

No. 99-152 Roy B. Morgan, Judge

No. W2000-01062-CCA-R3-CD - Filed September 7, 2001

The appellant, Steven Lee Whitehead, was convicted by a jury in the Madison County Circuit Court of three counts of rape. Pu

rsuant to the appe

llant’s conviction

s, the trial court imposed concurrent
senten ces of ten ye ars incarceration in the Tennessee Department of Correction. On appeal, the appellant presents the following issues for our review: (1) whether the trial court erred in excluding
at the appellant’s trial evidence of other sexual behavior by the victim; (2) whether the trial court erred in excluding evidence of prior false testimony by the victim; (3) whether the trial court erred in failing to either exclude DNA evidence or, in the alternative, grant the appellant a continuance of the trial d ate ; (4) whether the trial court erred in excluding evidence concerning the appellant’s character; (5) whether the evidence adduced at trial is suffici ent to support the appellant’s convictions of rape; and (6) whether the trial court erred in failing t o instruct the jury on sexual battery as a lesser-included offense of each count of rape. Following a thorough review of the record and the parties’ briefs, we reverse the judgments of the trial court due to the court’s failure to instruct the jury on sexual b

attery, and we r

emand these case

s for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgmen

ts of the Circuit C

ourt are Rever

sed and Remanded.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.

Sam J. Watridge, Humboldt, Tennessee, for the appellant, Steven Lee Whitehead.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Jerry Woodall, District Attorney General; and Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Backgroun

d1 It is th e policy of t

his court t

o withhold the

identity of minor vict

ims of sexual

offenses,

referring

to them only by their initials.

-2-

On March 16, 1999, a Madison County Grand Jury returned an indictment charging the appellant with thr

ee counts of rap

ing RB, the fifteen

-year-old frie

nd of his daughter Catie. 1 The indict ment aros e from RB’s allega tion that the appel

lant sexually assa

ulted her during th

e late evening hours of September 19, 1998, and the e

arly morning hours

of September 20, w

hile she was spending the nightwith Catie at the appellant’s apartment in Jackson, Tennessee. The appellant’s case proceeded to trial on January 26, 2000.

At trial, RB testified that, on the night of the appellant’ s offenses, she and Catie were watching movies with

the appellant in

the living room of his apartment, and she fell asleep. When she awakened, RB noticed that both Catie and the appellant had likewise fallen asleep, and the movie had ended. RB, who is an insulin-dependent diabetic, then decided to gi ve herself an ins ulin injection. Accordingly, she retrieved her syringes from her overnight bag and went to the kitchen where she had previously placed her insulin in the refrigerator. RB’s activity in the kitchen awakened the appellant, who turned off the television and the videocassette recorder and inquired if RB was ready to go to

bed. RB responded a

ffirmatively; at t

he time, she was a

lready dressed i

n preparationfor bed, wearing underwear, boxer shorts, and a shirt that the appellant had loaned

to her.

RB accompanied the appellant to the bedroom in which she was to sleep with Catie. The appella

nt removed clothin

g from the bed and

then indicated tha

t he was going to ca

rry his sleeping daughter from the living room into the bedroom. Instead, however, the appellant merely
went into the hallway and turned off a light before returning to the bedroom. RB recalled, “He was trying to joke around, laughing, and he kind of jumped on the bed in a wrestling kind of way.” She testified that the appellant’s behavior “made [her] a little uncomfortable,” and, therefore, she asked the appellant to go to the living room and get Catie. At this point, the appellant began kissing RB and “rubbing” her “[o]n the chest and down towards [her] pants.” RB told the appellant to stop and attempted to pull the appellant’s hands away from her. Nevertheless, he

succeeded in rubbing her vagina and inserting his

finger into her vagina. When RB repeated her request that the appellant get Catie from the living roo m, the appellant merely responded, “It’ll be all right. Just hold on a second.”

The appellant next pos itioned RB on her back and a ttempted to pull her

boxer shorts d own her legs. RB “grab bed” her boxer s

horts and once ag

ain asked the app

ellant to get his daughter. RB recalled, “He kept pulling my

boxers down, and I

kept trying to pull

them up, but he held my hands and pulled them down.” The appellant also removed RB’s underwear and performed cunnilingus upon her, penetr ating RB’s vagina w

ith his tongue. RB rec

ounted to the ju

ry, “I was crying and told him t

o stop, togo get Catie, and since Ididn’t have my hands, I smashed his head withmy legs, and that didn’t both er him.” She expla

ined to the jury tha

t she did not screa

m because she was afraid and because she did not want Catie to see what was happening.-3- Following cunnilingus, the a ppe llant continued to hold RB’s hands down and removedhis own shorts. He then engaged in sexual intercourse with RB, penetrating her va gin a withhis penis. Only after ejaculating on RB’s stomach did th e appellant fina

lly leave the bedr

oom. RB immediately ran to the bathroom where she cleaned her stomach and wiped herself

between her legs with her underwear. RB conceded at trial that, although she was sore following the appellant’s assault, she did not

suffer any bruis

es.
The appellant soon returned to the bedroom carrying Catie and placed his daughter

on the bed. When the appellant left the bedroom once again, RB began crying and threw an alarm clock against the wall,

awakening Catie.

The noise also ca

used the appellan

t to briefly check on the
two girls. He inquired if RB was having a bad dream and kissed her on the forehead before leaving the bedroom a final time.

The following morning, RB awakened at approximately 9:30 a.m. or 10:00 a.m. She bathedbefore dressing and returning home. At home, RB did not imme diately confide t

o her parents that she had been rap

ed. Instead, she

first spoke with

her boyfriend, Hunter Jones. Only later that nightdid she finally disclose to her mother the appellant’s offenses. Her mother then d rove her to a local hospital.

RB’s mother also testif

ied on behalf of th

e St ate at the appellant’s trial. She confirmed

that, in September 1998, she took her daughter to the Jackson-Madison County General Hospital. She explained:

My daughter came to me in tears after she had tried to - - She didn’t try to slash her wrists

to kill herself, but self-mutilation was involved, and it terrified me, and when - - in questioning her, she finally broke down and stated to

me that she had been raped, and we went [to the hospital] because of the rape situation. RB gave her mother the boxer shorts and the underwear that she had worn during the rapes, and her mother in turn gave the items to the Jackson Police Department.

Stacey Hutchens, a

sergeant with the Jackson Police Department, testified at trial that he was the lead

investigator in the appellant’s case and interviewed RB on the night of September 20, 1998. Hutchens described RB’s demeanor:

She was very upset. Of course, she ha d to tell what happened. She already had told it to one officer and I think a nurse out there, and, of
course, I had to hear it again. So, I mean, it was hard for her t o go through it that third

time again, just to r

elive it. Hutchens also interviewed the appellant, wh

o denied engaging

in any form of sexua

l activity with RB. Moreover, the a

ppellant refuse

d to provide a blood

sample to

investigators,

and Hutchens was forced to procure a search warrant in order to obtain the sample.

The Statealso presented the testimony of Steven M. Wiechman. Wiechman testified that, at the time of these offense s, he was employed as a special agent forensic scientist by the-4-

Tennessee Bureau of Invest igation (TBI) and worke

d in the Serology an

d DNA Unit of the TBI CrimeLaboratory in Jackson, Tennessee. He examined the underwear worn by RB at the time of these offenses and confirmed the presence of spermatozoa and sperm. H owever, vaginal swabs obtained from the victim contained no evidence of seminal fluid.

Chad Johnson, another special agent forensic

scientist working in the Serology and DNA Unit of the TBI Crime Laboratory in Jackson, related to the jury that he conducte d polymerase chain reaction (PCR) DNA analysis on a “cutting” from underwear retrieved from RB and on blood samples submitted by RB and the appellant. The cutting yielded a mixture of DNA profiles “consistent

with both the victim and the subject, and, therefore, the subject couldn’t be excluded as the donor of that stain.” After completing his analysis, Johnson transported a “cutting” from RB’s underwear

and blood samples su

bmi tted by RB and the ap pellant to the TBI Cr

ime Laboratory in Nashville for further testing.

Raymond A. DePriest,

a special agent f

orensic scientist

working in

the Serology and DNA Unit of the TBI Crime Laboratory in Nashvi lle , testified on behalf of the State that he too performed

PCR DNA testing on a cutting of the underwear obtained from RB and blood samples submitted by RB and the appellant. In contrast to Special Agent Johnson, DePriest used a form of PCR DNA testing known as “STR.” DePriest explained that “STRs arethe next step forw ard into DNA pr ofiling. They supply much more defining information. They give DNA a much greater

sense of uniqueness and identity when individualiz ing or trying to understand could a stain have originated from an individual or not.” Using the “STR” method, DePriest fo und that the DNA profile extracted from RB’s underwear matched the DNA profile extr acted from the appellant’s blood sample. Moreover, DePriest calculated that, within the Caucasian population, the pro

bability that someone other than the appellant contributed the DNA found on the underwear was one in 658 billion; within the black po pulation, the proba

bility was one in 215 trillion. He noted, however, that the TBI officially does not report values larger than the world population. Accor d ingly, he concluded

that the probability that

someone other than the appellant contributed the DNA found on RB’s underwear was one in six billion.

As to the mean s by w hich he calculated the above probabilities, DePriest testified that he used a data base of DNA samples provided by the Perken-Elmer Corporation. He explained:

Ma ny o f the crime labs across the United States are using the Perken[-]Elmer

database. We

take their value

s, place them into the FBI’s software and actually use the software or the mathematics that the FBI has put forward that’s been accepted nationally to generate statistical values or our final numbers that we use. The special agent conc eded that he was unaware of the geographical source of the DNA samples containedin the data base. He noted, however, that the data base used by the TBI had been compared with data bases used in other laboratories in the United States and had satisfied requisite standards.

In defen se, the app ellant declined to testify on his own be

half. However,

he did-5-

present the testim

ony of his daughter

, Catie Whitehead

. She testified tha

t, prior to the appellant’s offenses,she and RB were very good friends. Moreover, she confirmed that, on the night of the appellant’s offenses, she and RB were staying at her father’s apartment. While watching a movie withRB and her father, Catie fell asleep. She was awak ened at approximately 2:30 a.m. by the appellant, who carried her to the bedroom that

she was s hari ng with RB. When Catie entered the bedroom, RB was already in bed, but Catie noticed that her friend was crying. RB buried her head in her pillows in an apparent attempt to hide her tears, and, when Catie inquired if anything was wrong, RB refused to confide in her. Catie testified at trial that she then returned to the living room, buther father rem

ained in the bedro

om with RB for approx

imate ly one hour. When he emerged from the bedroom, the appellant claimed that he had fallen asleep and asked his daughter why she had not awakened him.

Finally, Catie

recalled that RB was still visibly upsetthe following morning. Catie testi fied, “[I]t look ed like she was try

ing not to cry.” Als

o, RB persisted in he

r refusal to confide in Catie, informing her “that she loved [her] and she didn’t want to hurt [her].”

In addition to the appellant’s daughter, Dr. Ronald T. Acton, a professor at the University

of Alabama in Birmingham, Alabama, testified on behalf of the appellant. D r. Acton stated that he worked as a professor in the

Departments of

Microbiology, Epidemiology, and Medicine. He was also the director of the Immunog enetics DNA Diagnostics Laboratory of the University

of Alabama

Health Services Foundation. With respect to the DNA testing performed by the TBI in this case, Dr

. Acton preliminar

ily observed that a

DNA sample

containing more than one individual’s DNA profile will not yield statistical probabilities concerning the identity of the source of the profiles. Mor

eover, upon studyi

ng “acetate ove

rlays” or chart

s of the test

ing perfo rmed in Nashville by Special Agent D

ePriest, he obser

ved that at least one sample tested by DePriest appeared to contain more than one DNA profile. Dr. Acton conceded, “I don’t know which [sample] it is.”

Dr. Acton further observed that, assuming only one profile was present in a sample, “there are certain pop

ulation genetic c

onsiderations and

rules t hat one has to follow in orde r to calculate a probability that someone in the population other than the defendant would possess that particular profile.” First, one w ould need t o compile random samples of DNA from unrelated individuals

for purposes of comparison. Second, in compiling the random samples, one would need
to account

for “different frequencies of genes that vary by racial groups and var[ y] by ethnic groups within a racial group.” Accordingly, one would need to separate samples relating to diffe rent races. Moreover, you would hope that you r sample of individu

als, in order to establish the frequencies of a

given set of genes, would be . . . a large enough sample that you would sort of take into considerationall the various ethnic groups within a race. Finally, Dr. Acton emphasized that racial and ethnic group distributions vary in differe nt geographic regions of the country. Accordingly, he asserted that one would need to ensure that the compilation of random samples represents the racial and ethnic composition of thepopulation where a particular crime was committed. The doctor concluded that, although he had heard of the Perken-El

mer data base, he had never studied the data base.-6- In rebuttal of

Dr. Acton’s testim

ony, the State rec

alled Special Age

nt DePriest to

the witness stand. DePriest asserted that the DNA sample obtained from RB’s underwear and tested in Nashville did not contain a mixture of DNA profi les. DePriest noted that, during Dr. Acton’s testimony concerning the presence of a mixture of DNA profiles in a sample tested byDePriest, Dr. Acton appeared to be examining an “acetate overlay” or chart of

what is our national con

trol or called the

ladder. It is

a mixture. It’s

a known mixture. It’ s a nationally publi shed mixture. The

sample which i s the panty cutting t hat I received f

rom TBI Agent Ch

a d Johnson was not picked up b y the defense ex

pert, and that is no

t a mixture. It’s a pure DNA profile of one individual. As my re por t indicated, I was able to get very good results . . . and the profile does match the Defen

dant.

At the conclusion of the trial, the jury convicted the appellant of

three counts of rape. The trial court conducted a sentencing hearing on Febr uary 22, 200 0, and imposed concurrent
sentences of ten years inca rceration in

the Tennessee Department of Correction for each conviction. The appellant now

challenges his co

nvictions in this app

eal.

II. Analysis A. Evidence of Other Se xual Behavior by the V

ictim The appellant first

challenges the trial court’s exclusion of evidence at the appellant’s trial pertaining to other sexual behavior by RB. Although we are reversing the appella

nt’s convictions on other grounds, we will address this issue as it may arise upon retrial of the appellant. With respect t o this issue, t he record refl ects that, on Janua

ry 24, 2000, two day

s prior to his schedule d trial date, the ap pellant filed a “M

otion to Offer Spe

cific Instance

s of Conduct o

f th e Victim” pursuant t

o Tenn. R. Evid. 412. In his motion, the appellant described testimony that he intend ed to introduce at his trial concerning numerous occasions on which RB engaged in o r discussed enga gi ng in sexual activity with other persons and one occasion on which she testified falsely about another

rape. The appellant alleged that “the victim’s pattern of past sexual behavior would prove that victim’ s alleged sexual a cts with the accus

ed, if true, were c onsensual.” In

ex planation of his failure to file the motion within ten days of trial as required by Tenn. R. Evid

. 412(d)(1)(i), the appellant asserted that his i

nvestigator only

discovered the proffered evidence on January 20, 2000.

The trial court conducted a hearing on the appellant’s motion on January 26, 2000, the scheduled trial d

ate. At th e heari ng, the appellant presented the testimony of his investigator, Janet Morris. Morris tes

t ified that she was employed by the appellant two weeks prior to the sch edu led trial date and had since submitted to defense counsel three separate reports concerning other sexual behavior

by RB. She noted that s he su bmitted her final report one week before the filing of the appellant’s motion.

On the basis of Morris’ testimony, the trial court deni ed the appellant’s motion. Specifically, the trial court found that the motio

n was not timely bec

ause the proffered e

vidence did-7-

notrelate to a

newly arisen issue, and defense cou nsel could have ob

tained the eviden

ce earlier with the exercise of

due diligence. The trial court did, however, allow the appellant to make an offer of proof for purpos

es of appeal.

The appellant first pre sented the testimony of the vic tim, RB. She testified

that, follow ing the a ppellant’s offenses, she engaged in sexual relations with several boys who were approximately

her own age. Spec ifically, she admitted engaging in sexual relations with a boy namedRussell Parker andanother named Tim Bailey. Moreover, while initially denying engaging in sexual relations with a boy named Jus tin Davis, she later clarified that she did perform oral sex upon Davis. RB further added that, prior to the appellant’s off

enses, she engag

ed in sexual relations withher boyfriend, Hunter Jones, who was also approximately her own age. However, shedenied having sex with Jones at any time during the week immediately preceding these offenses. Finally, RB confirmed that, during a November 5, 1998 preliminary hearing in the appellant’s case, she testified that she was the victim of another rape that occurred on the New Year’s Eve preceding the appellant’s offenses. RB further confirmed her testimony that, on the New Year’s Eve in question, she was with three friends named Lindsey Lubbock, Cheryl Fra zier, and Lisa June. She noted, however, that her friends did not witness the rape, nor did she tell her friends about the rape or report the rape to law enfo

rcement authori

t ies. A dditionally, she conceded that she did not know the identity of the New Year

’s Eve rapist

and could

not recall the location of the rape. Nevertheless, she firmly maintained the truth of her testimony at the preliminary hearing.

In addition to

R B’s testimony, the a

ppellant present

ed the testimony of

Russell Parker, who confirmed that he had engaged in sexual relationswith RB. Specifically, he recalled that, during a single for

ty- or forty-five

-day time period,

he had sex with the

victim every nigh t. Moreover, a boy named Robert Pruitt testified that, although he had nev er engagedin sexual relations with RB, he was present when she invited Tim Bailey to have sex with her. Hunter Jones also confirmed that he had engaged in se xual relations wit

h RB. He noted that, d

uring the course of his relatio

nsh ip with RB, they had sex once every two or three weeks. Finally, the appellant presented the testimonies of Lindsey Lubbock, Cheryl Frazier, and Lisa June, all of whom denied being with RB on the Ne

w Year’s Eve pr

eceding these of

fenses.

Tenn. R. Evid. 412 is frequ ently referre

d to as Tennes see’s rape shie ld law and “limits the admissibility of evidence about the prior sexual behavior of a victim of a sexual offense, and establishes procedures for determining when evidence is admissible.” State v. Sheline , 955 S.W.2d 42, 45 (Tenn. 1997). In essence, Tenn. R. Evi d. 412 is a rule of relevance, State v. Brown , 29 S.W.3d 427, 431 (Tenn.), cert. denied , 531 U.S. 916, 121 S . Ct. 275 (2000), that rejects the “anachronistic

and sexist view[] that a woman who had sexual relations in the past [i]s more like ly
to have consented to sexual relations with a specific criminal defendant,” Sheline
, 955 S.W.2d at 44. Simultaneously, the rule acknowledges that under certain circumstances the exclusion of evidence about a victim’s sexual behavior may violate a defendant’s right of confrontation, his right to present a defense, and, more broadly, his right to a fair trial.

Accordingly, s ubsection (b) of Tenn. R. Evid. 412 permits the introduction of-8-

reputation or opinion evidence of a victim’s sexual be

havior only if “ad

mitted in accordance w

ith the procedu res insubdivision (d) of this Rule and required by the Tennessee or United States Constitution.” Subse

ction (c) of the r

ule more extensiv

ely provides: Specific insta nce s of conduct. - Evidence of specific instances of a victim ’s sex ual behavior is ina dmissible unless adm

itted in accorda nce with the procedures in subdivision (d) of this Rule, and the evidence is: (1) Required by the Tennessee or United States Constitution, or (2) Offered by the d

efendant on the is sue of credibility of the victim, provided the prosecutor or victim has presen

ted evidence as

to the victim’s sexual behavior, and only to the extent needed to rebut the specific evidence presented by the prosecutor or victim, or (3) If the sexual behavior was with the accused, on the issue of consent, or (4) If the sexual behavior was with persons other than the accused, (i) to rebut or

explain scientific or medicalevidence,

or (ii) to prove or explain the source of s emen, in jury, disease, or knowledge of sexual matters, or (iii) to prove consent if the evidence is of a pattern of sexual behavior so distinc tive and so closely resembling the accused’s version of the alleged
encounter with the victim that it tends to prove that the victim consented to the act charged or beha

ved in such a manner

as to lead the def

endant reasona

bly to believe that the victim consented. If evidence of

a victim’s sexual behavior satisfies either

subsection (b) or

subsection (c), T

enn. R. Evid. 412(d)(4) further requires as a prerequisite to admissibility a determination by the court that the probative val

ue of the evidenc

e outweighs its unfa

ir prejudice to the

victim.

Again, the appellant argued to the trial court that evidence of RB’s sexual behavior

was admissible pursuant

to Tenn. R. Evid. 412(c)(4)(iii) relating to “a pattern of sexual behavi

or so distinctive and so closely resembling the accused’s v ersion of the alle

ged encounter w

ith the victim that it tends to prove tha

t the victim consent

ed to the act char

ged or behaved in

such a manner as

to leadthe defendant reasonably to believe that the victim consented.” The admissibility of the evidence rested in the discretion of the trial court. Sheline , 955 S.W.2d at 46. On appeal, this court will o nly “find an ab use of discretion when it appears that a trial court applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an i njustice to the party complaining.” State v. Shuck , 953 S.W.2d 662 , 669 (Tenn. 19 97). In this case, we cannot conclude that the trial court abused its discretionin excluding evidence of RB’s sexual behavior as we agree that the tardiness of the appellant’s motion precluded admission of the evidence.

Tenn. R. Evid. 412(

d) provides in rel

evant part:-9- Procedures. - If

a person accuse

d of an offense c

overed by this Rule intends to offer . . . und e r subdivision (c) specific instances of conduct of the victim, the following procedures apply: (1) The person must file a written motion to offer such evidence. (i) The motion shall be filed no later than ten days before the date on which the trial is scheduled to begin, except the cour

t ma y allo w the motion to be made at a later date, including during trial, if the court determines either that the ev idence is newly discovered

and could

not have been obtained earlier through the exercise of due diligence or that the issue
to which such evidence relates has newly arisen in the

case. Addressing the procedural r equirements of Te

nn. R. Evid. 412, this court h as observed, “The policies behind the rape shield la

w require strict

compliance with th

e procedures se

t forth in Tenn. R. Evid. 412(d). ‘[P]rior sexual behavior with others by the victim is altogether

inadmissible unless

there is compliance with Rule 412(d) . . . .’” State v. Benjamin F. Dishman , No. 03C01-9610-CR-00361, 1998 WL 191447, at *15 (Te nn. Cr im. App. at Knoxville, April 23, 1998)(alteration in original). Thus, at the outset, “the trial cou rt’s exercise of its discretion was limited to determining whether the te stimony presen ted in the offer o f proof [relate

d to a newly arise

n issue or] was ne

wly discovered

evidence or evidence which could not have been discovered beforehand with the exercise of due diligence.” Id.

For the purpose of clarification, we note that the appellant does not mount a facial challenge to the constitutionality of Tenn. R. Evid. 412's procedural re quirement tha t a motion to introd uce other se xual behavior by t he victim of a sexu

al offense be fi

led within ten days o

f trial. Cf., e.g. , Mic hi gan v. Lucas , 500 U.S. 145, 111 S. Ct . 1743 (1991). More

over, he does not c

laim
t hat the ten-day time limitation is unconstitutional as applied in his case. Rather, the ap pellan t simply asserts that the facts of his case fall within the ambit of one of the exceptionsto the ten-day time limitation, namely the exercise of duediligence did not a vail defense

counsel in obtaining the proffered evidence at an earlier date. He explains that

[i]t is difficult, if not i

mpossible, to meet th

e [time limitation] o

f Rule 412 under the circumstances of this case, (1) whe n the age of the a lleged victim is 15 a

nd one does n

o t normally suspect s

exual conduct, (2) when the sexual acts themselves represent a broad range. . . . (3) wh en writ

ing all the alleged acts about a 15 year old girl as reported through other juveniles requires a car eful and meticulous review before the motion may be filed, and (4) nondisclosure by the State.

Prelimin arily, regardless of whether “one . . . normally expect[s] [other] sexual2 We note that the appell ant did assert

a Brady claim in his motion for new tri al but elected not to pursue the issue in this appe al.

3 The State conced ed at oral ar gument that the testimony of H unter Jone s concernin g his relationship with RB mig ht have bee n admissible for the purp ose of exp laining the sour ce of the sem en found o n RB’s und erwear. However, the ap pellant has never asserted T enn. R. Evid. 412 (c)(4)(ii) as a basis for the admission of Jo nes’ testimony.

-10- conduct” by a fifteen-ye

ar-old victim of a

sexual offense,

such conduct is not

so improbable as to relieve defense counsel of his obligation to inv esti gate. Moreover, the record before this court establishes that

appellant’s counsel was in fact aware of the possibility of other sexual behavior by RB well in advance of trial. Indeed, defense counsel attached to his motion for n ew t rial a preliminary investigation of su ch behavior that w

as auth or ized by his predecessor in this case, Attorney Joe H. Byrd, and completed on June4, 1999. I n light of this preliminary investigation, neither the “broad range” of RB’s sexual behavior nor def ense counsel’s need to carefully and meticulously

review allegations of sexual behav ior prior t o submitting the allegations to the trial
court in a Rule 412 motion e

xplain defense c

ounsel’s failure

to authorize fur

ther investigation

until
two weeks prior to tri

al. Additionally, like the trial court, we note that the “broad range” of RB’s sexual behavior appar

ently posed no diff

iculty to Investiga

tor Morris in colle

cting th e disputed evidence. Finally, notwithstand ing th e appellant’s allegation of “nondisclosure by the State,” the appellant does not claim in this

appeal that the Sta

te violated th

e ma ndates of either Brady v. Maryland
, 373 U.S. 83, 83 S. Ct. 1194 (196 3), or Tenn. R. Crim

. P. 16 by withholding evidence of other sexual behavior

by RB. 2 Indeed, the appellant assumes “for the purpose of this argument that the State did not know of the alleged victim’s sexual history” and conc ludes by asking, “I

f the State didnot know, how could the Defendant’s attorney know?” The answer to the appellant’s question

was correctly supplied by the trial court: Defense counsel cou l d have hired Morris more than two weeks prior to tri

al.

In any event, regardless of the ten-day time

limitation of Tenn. R. Evid. 412(d)(1)(i), the evidence proffered by the appellant was largely inadmissible under Tenn. R. Evid. 412(c)(4 )(iii) for the purpose of proving a consensual encounter, and t

he appellant doe

s not claim

any other basis, including the United States a nd Tennessee Constitutions, for the admission of the evidence. Cf., e.g.
, Sheline
, 955 S.W.2d at 47-48. 3 In Sheline
, id. at 46, our supreme court emphasized that, in order for evidence of

sexual behavior to qualify for admission pursuant to Tenn. R. Evid. 412(c)(4)(iii), “the sexual conduct mu

st be ‘so unusual, so

outside the normal

, that it had distinctive characteristics which make it the complainant’s mod us operandi.’” A

dditionally, the co

urt emphasized th

at, “to have probative value on the issue of consent, the pattern of distinctivesexual conduct mu st closely resemble the def endan t’s version of facts.” Id. The appellant in th is case not only fa

iled to demonstrate

any distinctive characteristics of other sexual behavior by RB but also denied engaging in any sexual activity w ith RB. In other words, even assuming a distinctive pattern of sexual behavior by RB, the appellant proffered no “version of the alleged encounter” wi th which to compare the behavior.-11- Finally, as noted earlier

, the appellant inc

luded in his

Tenn. R. Evid. 412 motion evidence purportedly establishing that RB previously testified falsel y about being the victim of another rape. Specifically, the appellant asserted, “Lindsey Lubbock, Cheryl Frazier and Lisa June will testify that [RB] lied abo ut a rap e which she testified at the preliminary hearing 11/5/98 occurred December 31, 1997 or January 1, 1998 (Ne w Year’s Eve).” Again, the testimonies of Lubbock, Frazier, and Jun e disputed RB’s asse

rtion that the thre

e girls were with

RB on the New Year’s Eve in

question. Notwithst

anding hisinclusion of this evidence in his Rule 412 motion, the appellant also asserted that the evidence was “admissible to impeach [RB]. The fact that she was

sworn under oath

is admissible for the purpose of impeaching where it shows that she - - somebody is not telling the truth.” Defense counsel elaborated that the pr off ered evidence revealed “a prior inconsistentstatement that show s dishonesty.” He e

xplained that, if

RB were on the witness stand, I would ask her did sh

e report a rape prior that had not occurred, number one; that if she testified in the preliminary hearing that a rape didoccur, that she couldn’t say where it was, couldn’t say who it was,

co uldn’t s ay where it was, a ny of those things, a

nd she went on to

name three people who

she sa i d was with her, an

d we have those three people here, an

d we anticipate that they will say it didn’t happen.

The trial court initial

ly agreed that th

e proffere d evidence “cou ld likely come in because it attacks her cr

edibility, from the

standpoint that she

has testified fal

sely in the past .” However, after hearing the proffered evidence and upon furthe r reflection, the court concluded: I thin k becau se of the nature of this case, we’ve still got to rely on 412 to some

extent, and for that reason, looking to this situation and what the real issue is as to whethe r these three ind

ividuals were there,
notwhether or not this happened, I’m going to disallow it atthis time. Defense counsel still has in the record what the se three would have said, simply they weren’t with her on that date, if their

memory is
correct. That has been some time back. So

that offer of proof is also in the record at this time.

In State v. Anthony Lynn Wyrick

, No. E1999 -02206-CCA-R3- CD, 2001 WL 472849
, at *16 (Tenn. Crim. App. at Knoxvi lle, May 4, 2001), t

his court held that

a prior false accusation of rape does “not constitute ‘sexual behavior’ as contemplated under Rule 412” and is not subject to exclusion under the rape shield law. Notably, however, the trial court in this case essentially found that the appellant failed to establish that RB’s former testimony concerningthe New Year’s Eve rape

w as false. State v. Stinnett , 958 S.W.2d 329, 330 n.5 (Tenn. 1997); Tenn. R. Evid. 104(b). We
cannot say that the evide

nce prepondera

tes against

this finding by the trial court. Statev. Edison
, 9 S.W.3d 75, 77 (Tenn. 1999); Statev. Stamper , 863 S.W.2d 404, 406 (Tenn. 1993) . Accordingly,

we cannot say that the trial court erred in excluding the proffered evidence under Tenn. R. Evid. 412. Cf., e.g. , State v. Terry Allen Dominy , No. 01C01-9512-CC-00404, 1997 WL 284591, at **3-4 (T enn. Crim. App. at Nashville, May 30, 1997), reversed on other grounds by State v. Dominy , 6 S.W.3d 472 (Tenn. 1 999). This issue is w ithout merit.4 In his brief, the appe llant actual ly cit es “[Ten n. R. Evi d.] 803, Prior Former te stimony. ” Becaus e Tenn. R. Evid. 80 3 does n ot contain a provisio n relating to former testimon y, we w ill assume th at the app ellant intend s to rely upon Tenn. R. Evid. 804 (b)(1).

-12- B. Evidence of Prior False Testimony by RB

The appellant characterizes as a separate issue his contention t hat RB’s former testimony about the New Year’s Eve rape was admissible pursuant to Tenn. R. Evid. 804(b)(1), 4 and the testimonies of Lubbock, Frazier, and June we re admi ssible as prior inc onsistent statemen

ts pursuant to Tenn. R. Evid. 806 and Tenn. R. Evid. 613. We preliminarily note that the appellant’s reliance upon these rules of evidence, a t enuous proposition

at best, isundermined by the complete absence from his brief of any accompanyingargument. Tenn. Ct. of Crim. App. Rule 10(b); Tenn. R. Ap p. P. 27(a)(7). Moreover, the appellant’s argument before the trial court was devoi d of an y reference to the rules governing the admission of hearsay evidence. Tenn. R. Evid. 103(a)(2); Tenn. R. App. P. 36(a). In any event, our precedingconclusion that the trial court properly applied Tenn. R. Evid. 412 to exclude

evidence conce

rnin g RB’ s former testimony entails our rejection of the appellant’s contention. Beca use this issue may arise on ce again upon re

trial, we will addr

ess it in more detail.

Regardless of whether RB’s former testimony ab o ut the New Year’s Eve rape constituted hearsay, the evidence was inadmissible if irrelevant. Tenn. R. Evid. 402. The appellant effectively

conceded in the trial court that the former testimony was irrelevant unless RB’s report of another rape occurring on New Year’s Eve was untruthful. We have already noted the trial court’s finding that the “prior inconsistent statements” of fered by th

e appellant failed to establish the untruthfulness

of RB’s former testimony. Additionally, even assum ing that the a ppellant established the untruthfulness of RB’s former testimony, he fa ile d to demonstrate or

even argue the a

dmissibility of evidence thereof pursuant to Tenn. R. Evid. 404(b). Tenn. R. Evid. 404( b) proh ibits the introduction as substantive evidence of “other crimes, wrongs, or acts . . . to prove the character of

a person in order to show action in confor mity with the character trait” but authorizes the introduction of such evidence “for other purposes.” Thus, in Wyrick

, No. E1999-02206-CCA-R3- CD, 2001 WL 472849, at *21, we held:

Like any other

prior wrong or

act, a victim’s prior false accusation of

a sexual offen se mus t relate to a fact at issue at trial in order to be admissible

substanti vely. Otherwise, the relevance of the evidence
stems from its tendency to show that the victim has a

propensity to lie, a purpose that dir

ectly conflicts w

ith Rule 404(b), Tenn. R. Evid. The appellant

does not contend in this appeal nor did he contend in the trial court that the relevance of the evidence of

RB’s prior false

testimony stemmed f

rom anything other

than its tendency to show that RB has a propensity to lie. Conversely, the appellant does not contend in this appeal nor did he explicitly contend in the trial court that he was entitled under Tenn. R. Evid. 608(b) to qu estion RB on cross-examination concerning prior false testimony for the purpose of attacking her cr

edibility

as a witness. Significantly
, under Tenn. R. Evid. 608(b), “the witness’s answers must be taken as given. Other witnesses cannot be called to rebut the first witness’s responses.” N EIL P. C OHEN ET-13-

AL ., T ENNESSEE L AW OF E VIDENCE § 608.4, at 350 (Michie ed., 3d ed. 1995).

Moreover, because theappellant did not wish to introduce RB’s former testimony for the purpose of proving the truth of the matter asserted therein, the former testimony did not constitute hearsay, and the

appellant could no

t use Tenn. R. Evid. 806 as a vehicle for attacking RB’s credibility. Tenn. R. Evid. 801(c). Again, the difficulty with the evidence proffered by the appellant lay not in its hearsay nature but in its lack of relevance.

Finally, the appellant could not bypass the requirements of Tenn. R. Evid. 404(b) and Tenn. R. Evid. 608(b) by relying upon Tenn. R. Evid. 613. Tenn. R . Evid. 613 authorizes the admission of evidence of p rior inconsistent s

tatements to impeach the credibility of a witness. See also State v. Smith
, 24 S.W.3d 274, 279 (Tenn. 2000). However, the rule requires that the prior
statement be inconsistent with the witness’ trial testimony rather than other pre-trial statements

or testimony. See, e.g.
, State v. Michael Brady , No. M1999-02253-CCA-R3-CD, 2001 WL 30220, at *9 (Tenn. Crim. App. at Nashville, January 12, 2001), perm. to appeal denied , (Tenn. 2001); see also Doochin v. U.S. Fidelity & Guar. Co. , 854 S.W.2d 109, 114 (Tenn. App. 1993)(“Alth ough the rule does not define an inconsistent statem ent as on e inconsistent with a statement offered at trial, we think that is all it can mea

n.”). Also, Rule 61 3 clearly contemplates the impeachment of a witness’ trial testimony by the witness’ own prior statement, n ot by a third party’ s statement. State v. Michael N. Grey , No. M1999-01428-CCA-R3-CD, 2000 WL 1681220, at *3 (Tenn. Crim. App. at Nashville, Novemb

er 9, 2000); James William Tayl or v. State , No. 01C01-9809-CC-00384, 2000 WL 641148, at *7 (Tenn. Crim. App. at Nashville, May 19, 2000), perm. to appeal denied , (Tenn. 2000).

Indeed, even ass umi ng satisfaction of the above requirements, Tennessee courts have long held that “[e]xtrinsic evidence of a prior inconsistent statement of a witness is inadmissib

le to impeach the statement of a witness on cross-examination as to collateral matters.” State v. Mayo
, 735 S.W.2d 811, 817 (Tenn. Crim. App. 1987). We acknowledge the observation of one no ted autho rity that “n either Rule 613 nor any other provision in the Tennessee Rules of Evidence indicates whether the collateral fact rule [still] applies.” N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE

§ 613.5, at 413-414 (Michie ed., 3d ed. 1995). But see State v. Electroplating, Inc. , 990 S.W.2d 211, 226 n.17 (Tenn. Crim. App. 1998)(obser ving in dicta that the coll

ateral evidenc

e rule is applied in conjunction with Tenn. R. Evid. 613) . That having been said, the witness’ trial testimony must itself satisfy the Tennessee Rules of Evidence, including rules relating to relevance. In other words, Tenn. R. Evid. 613 does not authorize the elicitation of testimony from a witness that is irrelevant to the instant proceeding for the sole purpose o

f impeaching the t

estimony with

a prior inconsistentstatement. Cf. State v. Jones
, 15 S.W.3d 880, 892 (Tenn. Crim. App. 1999), perm. to appeal denied , (Tenn. 2000). Th is issue is without mer

it.

C. DNA Evidence

Anticipating potential discovery issues upon retrial, we next address the appellant’s contention that

the trial court erred in failing to exclude DNA evidence proffered by the State or, in the alternative, grant

the appellant a continuance of the trial date. The appellant filed a motion on5 At trial, Special Agent DePriest testif ied that “t

he amount of inf

ormation that

was requested was

more than what would fit into the trunk of a T aurus vehicle . It was a tremen dous am ount of inform ation.”

6 Specifically, defense counsel reque sted the following items:

1. The names an d curriculum vitae of all laboratory technicians, sup ervisors, directors and any

other personnel involved in col lecting t he evidence, establishing the test methodology, perform ing and interpreting the test results, preparing

the fi nal report

, sampli ng the popul

ation an d preparing

the data base of gene frequencies that may be u sed to calculate the proba bility that anyone else could have contri

buted the evidence

reported in th

is case. 2. The na me and cu rriculum vitae o f any expert wh o may be c alled to testify in this case. 3. The p rocedur es manual d etailing the pro tocols used to perform the tests conducted in thi s case. 4. Provide documentation of any license and/or accreditation that the laboratory may hold fo r using PCR methodo logies for ana lysis of DNA evidence in forensic

cases. 5. Provide documentation for any proficiency testi ng programs that the laboratory part

icipates t hat covers the

genes assess ed used in thi s case. 6. Provide the la

boratory bench notes

generated in t

his case. 7. Provide the PCR raw data submitted to any proficiency testing program and the reports received from the proficiency t esting agency indicating whet her the results submitted were corre ct or incorre ct. Include d ata two years su bsequen t to the time when t

he tests wer

e performed in thi

s case up unti

l the present

time. 8. Docu mentation o f the laborato ry error rate in fo rensic DN A testing. Th is should i nclude re

ports th at may hav

e been ret

racted,errors t

hat were detected by the laboratory

after a report

was submitte

d or errors that

were detected by ot

her (continued ...)

-14- January 24, 2000, to “suppress” any DNA evidence proffered by the State. In support of his motion, the appellant argued that the Stat e had violated Tenn. R. Crim. P. 16 by failing to respond

to his requests for information relating to DNA testing conducted by the TBI. The appellant brought the motion to the trial court’ s attention on Janua ry 26, 2000, the da

y on which his tr

ial was t o

commence. The prosecutor r esponded that the

appellant’s motion

was untimely

pursuant to Tenn. R. Crim. P. 12(b)(3). Additionally, the prosecutor noted that the appellant had been granted complete access to his file, and Special Agent DePriest had invited the app

ellant to visit the TBI CrimeLaboratory in Na

shville and revie

w any materials

in the TBI’s possession. The prosecutor explainedthat the TBI extended the invitation to the appellant instea d of sending reque

sted materials because what

[defense counsel] . . . requested wo uld [have] require[d] three to four people wor

king months to come up

withthe information . .

.

, and it’s just

so cumulative and it’s so burdensome, it would require them to stop everyt

hing that they are

doing and respond t

o that. 5

As relevant to the appell ant’s January 24 , 2000 motion, the re cord further re

flects that, on October 12, 1999, defense counsel wrote a letter to the prosecutor assigned to the appellant’s

case requesting information concerning DNA testing conducted by the TBI. 6 On October 15, 1999,6 (...continue d)
persons. 9. The sampling methodology used to estimate the frequency of allel es in the population samp led, that may be used to estimate the pro bability that anyone else could have contri

buted the evidence

reported in th

is case. 10. The criteria used to determine the racial and/or ethni c group of the populati on sampled. 11. The place of birth and curren t residence (sta te, county, city) of the subjects sampled to estimate the frequency of all eles used in this case t

o calculate the probab ility that anyone else c ould have contributed the evidenc e reported in this

case. 12. The method u sed to est imate t he alle le frequ encies i n the popul

ation detected at each l

ocus assessed i

n this case

. 13. A list of ph enotypes an d/or geno types stratified by ra cial and/or e thnic group of the subjects sampled that were used to estimate al lele frequencies and probab ility that anyone else c ould have contributed the evidenc e reported in this

case. 14. Studies perf

ormed and raw data generat ed to determine whet

her the all

eles at each locus assessed in this case are in Hardy-Weinberg equilibrium in the populati on sampled an

d in the popu

lation where th

e crime was

committe

d. 15. Studi

es perfor med and raw dat

a generat

ed to deter

mine if the fr equency of allel es used t o estimat

e probabili

ty in t his cas e are the

same as t

he freque

ncy of allel es in t he populat

ion where the cri

me was commit

ted. 16. Provide good qualit y photogra

phic copie s (not Xerox copies) of

the dot blots generat

ed in this c ase.

-15- the prosecutor w

rote the following

letter to defense

counsel: This letter is to acknowledge receipt of your letter dated October 12, 1999, and this letter is in reference to y

ou[r] discovery

requests. Please be advised

that this office has an open file policy concerning discovery and as such you are welcome at any time to come and copy my entire file. Also, I have spoken to the TBI crime lab concerning this matter and inform ed them that you ma

y be c alling for information. Any information concerning the TBI and DNA testing will have to come from

them. If you have any di fficulty or run int

o any problems in

this endeavor ple

ase do not hesitate

to call upon me. In turn, defense counsel responded in a letter dated October 18, 1999, that he did “not feel comfortable” with the prosecutor’s open file policy. He further informed the prosecutor that h

e was, the refore, filing a formal motion for discovery and requesting a formal response by the State. Simultaneously, defense counselcontacted the TBI directly and requested the items originally listed in his October 12, 1999 letter to the prosecutor.

On October 20, 1999, defense counsel filed a motion for discovery, to which the State responded

by reiterating its open file policy. Accordingly, on December 3, 1999, the appellant filed

a motion to compel discove ry. The trial court conducted a hearing on the appellant’s motion on December

16, 1999. At the hearing, the appellant principally complained that he had not yet-16-

received “dot-blots” or c harts of preliminary DNAtesting performed by Special Agent Chad Johnson
at the TBI laboratory in J a ckson. In particu lar, he complaine

d that he had expe

rienced some difficulty determining wheth

er the “dot-blots

” were located

at the TBI

laboratory in Jackson or the TBI laboratory in Nashville. The prosecutor clarified that Special Agent Johnson’s final report was included in his file and availa ble to defense co

unsel, but other ite

ms including the “dot-blots” were likelylocated at the laboratory in Nashville where the TBI was co nductin g further testing. Additionally, the prosecutor noted that the special agen

t conducting the te

sting in Nashville had not yet i ssued a final report. At the conclusion of the hearing, the trial court granted the appellant’s motion. The order

granting the appe

llant’s motion provi

des: The Court specifical

ly ordered all dot

blots ( goo d quality photographic

copies (not xerox copies)) generated in the case (all tests) to be provided Defendant’s coun sel no later than January 3, 2000.

On January 3, 2000, the State notified defense counsel that photographic copies of the “dot-blots” generated by the DNA testing performed by Special Agent Johnson were available. Additionally, in a le

tter dated Janua

ry 3, 2000, the pros

ecutor communica

ted to defense co

unsel: I have also

talked with the agent

in Nashville who has conducted the more precise testing and he has informed me that the testing that he does cannot b e photographed. Additionally, Agent Depriest has informedme that he would be willing to allow you to go to Nashville and follow him throu

gh his testing of DNA

samples. Special Agent DePriest reiterated the above invitation in a letter dated January 12, 2000, that was addressed to the prosecutor and

apparently forwarded to and received by defense counsel by January 14, 2000. In the letter, DePriest stated:

I have recently received and reviewed the two DNA discovery

r equest s (dated 12/8/99 and 1/11/2000) for laboratory information regarding [the a

ppella nt’s case]. In [light] of the short time period and vast amount of information requested, I have been author

ized to offer the defense the o

pportunity to visit the

TBI crime

laboratory to view and discuss all of the requested information. Given the volume of material, this wou

ld greatly facili

tate efficient u

se of time by both the state and def

ense counsel. Th e “Official Serology/DNA Report” setting forth the results of Special Agent DePriest’s DNA testing was attached to theJanuary 12, 2000 letter. The appellant filed a copy of DePriest’s letter and a copy of the “Official Serology/DNA Report” with the trial court on January 18, 2000.

In ruling upon the app

ellant’s J anuar y 24, 2000 motion to exclude DNA evidence proffered by the State, the trial court added that,following the hea ring on the appella

nt’s motion to compel discove r y, the court again met with the parties in chambers to discuss the appellant’s discovery of D NA evidence and that, since the meeting in chambers, the court had received no communications from defense counsel indicating any dissatisfac t ion with the State’s provision of discovery. Accordingly, the trial court agreed with the State that the appellant’s motion was-17-

untimely under Tenn. R. Crim. P. 12. Moreover, the court found:

I’ve g ot to loo k to the spirit of Rule 16, and in this case, it’s been undisputed that the Statehas agreed to fu rnish their exper

ts to defense counsel, to defense experts. They’ve offered the phone numbers, the loca tion. They’ve offer ed the State’s lab

oratory proced

ures a n d protocol and everything be furnished, and you go up there at your leisure and discover all that you want to discover, and I take it that’d be much more than could be put onyour desk. I think that sometimes discovery can get over burdensome, but they’ve got around that by furnishing everything to you, by someone appearing on behalf of the Defendant,

be it an expert or counsel, or both, or five people, whatever it wo uld ta

ke, and that’s through Mr. DePriest’s cooperation, that being the expert witness. I think the spirit was met under Rule 16.

Initially, Tenn. R. Crim. P. 12(b )(3) does r

equir e that “[m]otions t o suppress evidence” be filed prior to tr ial. Courts have interpreted the phrase “prior to

trial” to mean tha

t a motion to suppress must be raised “‘sometime earlier than “the day o f the trial when th

e jury is waiting in the hall.”’” Spicer v. State , 12 S.W.3d 438, 444 n.6 (Tenn. 2000); see also State v. Smith
, 701 S.W.2d 216, 217 (Te nn. 1985); State v. Hamilton , 628 S.W.2d 742, 744 (Tenn. Crim. App. 1981). Moreover, “[t]he mere filing of a motion to suppress is not sufficient to raise an issue for the
court to decide. The proponent must bring the motion to the attention of the trial judge a nd obtain

a ruling thereon.” State v. Marvin K. Ferguson , No. 03C01-9406-CR-00235, 1997 WL 401825, at *2 ( Tenn. Crim. App . at Knoxville, July 17, 1997), affirmed by State v. Ferguson , 2 S.W.3d 912 (Tenn. 1999); see also State v . Burtis
, 664 S.W.2d 305, 310 (Tenn. Crim. App. 1983). Although defense counse

l in this case filed his motion to suppress DNA evidence two days prior to trial, he failedto bring the motion to the attention of the trial court until the morning of trial. Accordingly, if the appellant’s mo

tion was subject to

Tenn. R. Crim. P. 12(b)(3), the motion was indeed untimely. However, in State v. Cook
, 9 S.W.3d 98, 101 (Tenn. 1999 ), our supreme co

urt recently quot

ed with approval the following construction of the federal counterpart to Tenn. R. Crim. P. 12(b)(3) by the United States Court

of Appeals for th

e First Circuit: At least as used in 12(b), “su ppress” has a

rather definite and limited meaning

. . . . M otions to suppress a re described as

“objections to evidence on the ground that it was illegally obta

ined”, inclu

d ing “evidenceobtained as a res ult of an illegal search” and “other forms of illegality such as the use of unconstitutional means to obtain a

co nfess ion.” Put generally, then, suppression motions concern the “application of the e xclusio nary rule of evidence”, or matters of “‘police conduct not

immediately relevant to the question of guilt’”

. . . . United States v. Barletta

, 644 F.2d 50, 54 (1 st Cir. 1981)(citation omitted). As the appellant’s motion in this case was grounded in the State’s failure to fully comply with the rules of discovery rather than the State’s illegal ac

quisition of the DNA

evidence, it is

uncertain whether

the appellant was required7 An open file poli cy does not, however

, relieve a

prosecutor of hi s obligati on under Tenn. R. Crim. P. 16(c ) to notify defense counsel if he “d iscovers ad ditional evid ence or m aterial previo usly requested or ordere d, which is subject to d iscovery or in spection un der [Te nn. R. Crim. P . 16].”

-18- under Tenn. R. Crim

. P. 12(b)(3) to fil

e his motion prior to t

rial.

That having been said, this court has held that under Tenn. R. Crim. P. 12(b)(4), “[f]ailureto complain of the alleged discovery violation and to seek a remedy as soon as the defense learns of it may be treated as waiver.” State v. Quincy L. Henderson , No. 02C01-9706-CR-00227, 1998 WL 242608, at *4 (Tenn. Crim. App. at Jackson, May 12, 1998). As i ndicated above, the appellant was at least aware by January 14, 2000, twelve days prior to trial, of the alleged discovery

v iolation. Nevertheless, he waited until the day of trial to bring the alleged violat ion to the tria

l court’s attention. Accordingly, the appellant has wa

ived his complaint.

Notwithstanding waiver, we agree with the trial cour t that the State did no t violate Tenn. R. Crim. P. 16. In State v. Zane Allen Davis, Jr.
, No. M2000-00737-CCA-R3-CD, 2000 WL 1879518, at **4-5 (Tenn. Crim. App. at Nashville, December 28, 2000), we observed that Te

nn. R. Crim. P. 16(a)(1)(C) & (

D) authorizes the

discovery of both

results or reports of sci

entific tests and documents

and tangible objects necessary to determine the accuracyof the tests and test results. Cf. the discussion in United States v. Liquid Sugars, Inc. , 158 F.R.D. 466, 469-473 (E.D. Cal. 1994). In th is cas e, the State provided the appellant complete access both to the results of DNA testing conducted by the TBI and to information relating to the accuracy of the tests and test results. The sole dispute was whether defense counsel should be required to visit the TBI laboratory in

Nashville in order to obtain the latter information.

This court has previou

sly noted that, gene

rally speaking, T

enn. R. Crim. P. 16 does
notobligate the State

“to furnish the ap

pella nt with info rmation, evidenc e, or material wh

ich is available or accessible to him or which he could obtain by exercising reasonable diligence.” State

v. Dickerson
, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); see also State v. Gilford E. Williams , No. W1999-01556-CCA-R3-CD, 2001 WL 43176, at *5 (Tenn. Crim. App. at Jackson, January 17, 2001), perm. to appeal denied , (Tenn. 2001). This principle underlies our holding s th at, when defense counsel is granted complete access to the State’s file, “[t]he State is not obliged to determine whether defense counsel is aware

of each and eve

ry item in the file. That is the

function of defe

nse counsel to whom the file is opened.” Henderson
, No. 02C01-9706-CR-00227, 1998 WL 242608,
at *4; see also State v. David Dotson , No. 45, 1988 WL 74595 at *2 (Tenn. Crim. App. at Knoxville, J uly 21, 1988). 7 Similarly, we have held that “[s]ome responsibility must be placed upon a defendant,

with full knowledge that an expert will testify, to adequately investigate.” Williams , No. W1999-01556-CCA-R3-CD, 200 1 WL 43 176, at *5; see also State v. Chico Lopez Chigano , No. 1333, 1991 WL 188875, at *8 (Tenn. Crim. App. at Knoxville, Septemb

er 26, 1991); State v. Dan Baron Reid , No. 16, 1986 WL 829 7, at *3 (Tenn. Crim

. App. at Jackson,

July 30, 1986). In sh

ort, absent evidence that the

State’s invitation t

o defense counse

l to visit the TBI laboratory in

Nashville

was a tactic designe

d to hinder the app

ell a nt’s discovery of

material evidenc

e or otherwise ha

rass the appellant, it was indeed the r esponsibility of de

fense counsel to v

isit the laboratory and thereby-19-

obtain the requested information.

We recognize that the State’s invitationto defense couns el to visit the TBI laboratory in Nashville was issued approxi mately th ree weeks prior to trial. Conceivably, defense counsel would have faced some

difficulty sched

uling a visit to the TBI

laboratory in Na

shville within those three weeks. However, the appellant never requested a continuance of the trial date f or the purpose of arranging a visit

to the laboratory, n

or in fact did the appe

llant ever reque

st a continuance d

ue to the State’s allege

d discovery violat

ion. Rather, the a

ppellant asserte

d in his motion “that the lea st relief he should

receive is the suppression of all state offered DNA evidence.” Even assuming that the State violated Tenn. R. Crim. P. 16, a prerequisite to the remedy of exclusion was the appellant’s demonstration by a preponderance of the evidence that he was “actually prejudiced by the failure to complywith the discovery [rule] and that the prejudice [could not] be otherwise eradicated.” State

v. Garland , 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981); see also State v. Danny Jerome Jones
, No. 01C01-9307-CR-00233, 1994 WL 369728, at *4 (Tenn. Crim. Ap p. at Na shville, July 14, 1994)(citing, among other authorities, State v. Brown , 836 S.W.2d 530, 548 (Tenn. 1992)). In this regard, “[t]he inquiry is what prejudice has res ulted from the discovery violation, not simply the prejudicial effect the evidence, other wise admiss ible, has on the issue of a defendant’s guilt.” Henderson
, No. 02C01-9706-CR- 00227, 1998 WL 2426

08, at *5. Suffice

it to say that the appellant failedto demonstrate tha

t the State’s requ

irement that defe

nse counsel visit th

e TBI laboratory

in Nashville in order to obtain re q uested information was so prejudicial as to preclude any remedy other than exclusion. Cf. id. (“This court will not presume

prejudice from a mere allegation. Moreover, prejudice arising from a discovery violation will not be found if it is shown that the defense

was otherwise aware of the undisclosed evidence.”).

Finally, we note that, on appeal, t he appellant cites for the first time Brady v. Maryland
, 373 U.S. at 83, 83 S. Ct. at 1194, for the proposition that the trial court should have excluded DNA evidence proffered by the State. Although the appellant made a cursory reference
to due process in his motion to exclude the DNA evidence, defense counsel’s argument before the trial court focused exclusively upon Ten n. R. Crim. P. 16. Moreover, the sole Brady violation allegedin the appellant’ s motion for new tri al related to

the State’s failure to providethe appellant exculpatory evidence concerning other sexual behav ior by the vi ctim. A party may not make an objection based upon a non-constitutional ground at trial, and assert a constitutional ground for the objection post-trial. State v. Adkisson , 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994). Moreover,

on the basis of the record before this court, the appellant is not otherwise entitled to relief. Tenn. R. Crim. P. 52(b); Smith , 24 S.W.3d at 282-283. This issue is witho ut merit.

D. Evidence of the Appellant’s Character

The appellant also cl

aims that the trial c

ourt erred in exc

luding evidence a

t trial concerning his truthfulness, yet another issue that may res urface upon re trial. As releva

nt to this issue, the appellant

introduced at trial the testimony of his ex-wife, Connie Sue Gary, that she was previously

married to the appellant for four years and she “guessed” that the appellant “was alwa ys honest with[her]” during that time period. The State objected to Gary’s testimony on the basis that the appellant had not yet testified. The appellant responded that the State had intro d uced into8 Conceivably, the interplay of Tenn. R. Evid. 806 and the appellant’s i ntroduction of his own exculpatory statement und er Tenn . R. Evid. 10 6 would a void Rule 608(a)’s a pparent re quiremen t that the appe llant be a witness. Howev er, in this case, the ap pellant’s excu lpatory statem ent was introd uced by the State and d id not constitute hearsay.

-20- evidence the appellant’s statement to the police, thereby placingthe appellant’s truthfulness at issue. Following argument by counsel, the trial court concluded:

I’ve never understood

the law to allow this type testimony, as brief as it was, without the Defendant’s testimony coming first. I have no idea whether the defendant is going to testify or not. I don’t think it’s prior testimony. I believe the objection is good at this point in time. Once the Defendant takes the stand, if you want to offer thi s pro of and other proof, but at this point I’m just going to sustain the objection and ask that it be stricken.

Tenn. R. Evid. 404(a) provides that “[e]vidence of a person’s character or a

trait of character is not admissible for

the purpose of pr

oving action in con

formity with the character

or trait

on a particular oc

casion.” Except

ions to this genera

l proscriptio

n inc lude evidence a

dmissible pursuant to Tenn. R. Evid. 608. SeeTenn. R. Evid. 404( a)(3). Rule 608(

a) provides: The credibility of a witness may be attacked or supported by evidence in the form of opinion

or reputation, but

subject to these lim

itations: (1) the evidence may refer only to cha racter for truthfulness or untruthfulness,

and (2) the evidence o f truthful c haracter is adm issible only after the character of the witness for truthfulness has been attacked. Id. The trial court evidently relied upon Tenn. R. Evid. 608(a) in excluding Gary’stestimony. This
court will not find error

in the trial court’s ruling absent an abuse of discretion. State v. McLeod
, 937 S.W.2d 867, 871 (Tenn. 1996).

In McKinney v. State

, 552 S.W.2d 787, 790 (Tenn. Crim. App. 1977), this court observed, “An accused

may not, of course

, show evidence o

f his credibility as a w

itness by the use of character witn

esses unless he fi

r s t testifies.” McKinney , however, was written prior to the adoption of the Tennessee Rules of Evidence . Moreover, the a ppella nt co rrectly notes tha

t, not withstanding Rule 608(a)’s unambiguous reference to the “credibility of a witness,” this court has since suggested that a defendant’s right under the rule to present evidence of his truthful character upon attack by the State “ is not contin gent upon his relinquishment of his Fifth Amendment privilege.” State v. Phipps , 883 S.W.2d 138, 153 (Tenn. Crim. App. 1994). N evertheless , our conclusion in Phipps c onstituted dictum, and nothing in Tenn. R. Evid. 608(a) or the Advisory Commission Comments thereto suggests an intent by the drafters to abandon McKinney ’s limitation upon an accused ’s use of charac ter evidence fo

r the purpose of b

olstering his cred

ibility

. 8

Additionally, we noteour agreement with the State that the appellant minimally at best complied with the requirement that he establish a proper foundation for the introduction of-21-

opinion testimony concerning his character. State v. Dutton , 896 S.W.2d 114, 118 (Tenn. 1995);

see also State v. Sammy

Goff , No. W1999-01976-CCA- R3-CD, 2001 WL 9195 1, at *3 (Tenn. Crim

. App. at Jackson, January 31, 2001), perm. to appeal denied , (Tenn. 2001). Gary did no t indicat e when she and the appe llant were married, nor did she indicate the extent of her contact with the appellant since their divorce. As one commentator has observed,

[s]ince th e r eputation or opinion evidence is introduced to provide evidence of a witness’ s charact er so that the trier of fact can more accurately

assess the witness ’s credibility, the key issue is

th e witness’s character at o

r near the time

of testimony. Accordingly, the rep utation or opinion proof un der Rule 608(a) s

hould relate to

th e witness’s character at the time of the proceeding. N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE § 608.2, at 346 (Michie ed., 3d ed. 1995).

Even assuming that the appellant established a proper foundation, the appellant was
notentitled to prese

nt Gary’s tes timony because the State had not yet attacked the appellant’s character for truthfulness. In this regard, we note that the United States Court of A ppeals for

the Ninth Circuit, in interpreting the essentially identical federal counterpart to Tenn. R. Evid. 608(a), carefully distinguished between attacks by the State upon a witness’ credibi

lity in the current

case and attacks by the State upon the witness’ prior history or general character for truthfulness, stating that only the latter triggers rehabilitation under Rule 608(a). United States v. Dring , 930 F.2d 687, 690-692 (9 th Cir. 1991). Accordingly, the State’s introduction of testimony by other w itnesses contradicting the appellant’s version of the facts generally does not trigger rehabilitation und

er Rule 608(a). Id. at 691; see also United States v. Angelini , 678 F.2d 380, 382 n.1 (1 st Cir. 1982); United States v. Dane hy , 680 F.2d 1311, 1314 (11 th Cir. 1982); United States v. Jackson , 588 F.2d 1046, 1055 (5 th Cir. 1979); cf. People v. Miller , 890 P.2d 84, 93-96 (Colo. 1995); State v. Rabe , 687 P.2d 554, 561 (Haw. Ct. App. 1 984); State v. Ross , 685 A.2d 1234, 1236 (N.H. 1996); Spector v. State
, 746 S.W.2d 946, 950-951 (Tex . Ct. App. 1988); State v. Eugenio , 579 N.W.2d 642, 648-6 49 (Wis. 1998)

. One commen tator explained, “[C]ontradictio n evidence might be

offered to prove

the witness has intentionally lied,

but for reasons that a

re case-specific and have nothing to do with general trustworthiness.” 28 C HARLES A LAN W R IGHT & V ICTOR J AMES G OLD , F EDERAL P RACTICE AND P ROCEDURE § 6116, at 70 (West Publishing Co. ed., 1993). The record before this court reflects that the State did nothing more than offer evidence contradicting the appellant’s statement to the police concerning whether or not he r a ped RB. Certainly, th e appellant’s moti

ve to lie about those

facts was entirely case-specific.

Of course, “[e]vidence

barred by Rule 608 may beadmissible by another evidence rule.” 4 J ACK B. W EINSTEIN & M ARGARET A. B ERGER , W EINSTEIN ’ S F EDERAL E VIDENCE § 608.02(3)(c), at 608-1 3 (Jos eph M. McLaughlin & Matthew Bender & Co. eds., 2d ed. 2001). In
contrast to Rule 608(a), Tenn. R. Evid. 404(a)(1) addresses the admissibility of proof of the character of the accused as s

ubstantive eviden

ce. Specific ally , Rule 404(a)(1) permits the introduction of “[e]vidence

of a pertinent ch

aracter trait o

ffered by the ac

cused or by the pr

osecutio n to rebut the same.” Under Tenn. R. Evid. 405(a), such “proof may be made by testimony as to reputation or by testimony in the form of an opinion.”-22- Like Rule 608(a), Rule 4

04(a)(1) is subst

antially identica

l to its federal counterpart. Accordingly, we note that the United States Court of Appeals for the Fifth Circuit has opined that “pertinent”

is a term synonymous with “relevant,” and a defendant’s truthfulness is relevant in the following three si

tuations: (1) The offense cha

rged is crimen fa

lsi; i.e., a lie by the defendant is an element of the crime. (2) The defendant has testified on his own behalf and his credibility has been attacked. (3) Thetruth of out-ofcourt statements made by the defendant has been attacked. United States v. Hewitt

, 634 F.2d 277, 279 (5 th Cir. 1981) (citations omitted); see also United States

v. Lechoco , 542 F.2d 84, 88 (D.C. Cir. 1976)(holding that, when the State challenged the veracity of a defendant’s statements to psych iatrists , on which statements the doctors based their opinions concerning the defendant’s mental state a t the time of the offense, evidence of the defendant’s characte r for truthfulness “

went to the heart o

f his guilt or innoce

nce” and was ad

miss ibl e substantively). Consistent with Hewitt , this court held in State v. WilliamB. Thurbley
, No. 03C01- 9709-CC-00414, 1999 WL 301591, at *15 (Tenn. Crim. App. at Knoxville, May 11, 1999), perm. to appeal gran ted , (Tenn. 1999), that, when evidence of a de

fendant’s char

acter for truthf

ulness relates to the cr

edibility of a state

ment that he gave t

o the police, the ev

idence is admissible under Tenn. R. Evid. 404(a)(1).

Of course, the issue of whether the appellant established an adequate foundation for Gary’s testimony is

equally of concern whether determining the admissibility of Gary’s testimony under Rule 608(a) or Rule 404(a)(1 ). Moreover, Gary’s testimony that she “guessed” that the appellant was truthf

ul wi th her during their

marriage was ha

rdly a ringing endo

rsement of his character for truthfulness. Accordingly, the exclusion of the evidence, if error, does not afford an independent

basis for the rev

ersal of the appe

llant’s conviction

s. Tenn. R. Crim. P. 52(

a); Tenn. R. App. P. 36(b).

E. Sufficiency of the Evidence

The appell an t next challenges the sufficiency

of the evidence

underlying his convictions of rape. In order to prevail, the appellant must demonstrate to this court that no “rational trier of fact” could have found the essen tial elements of th e offenses beyo

nd a reasonable

doubt. Jackson v. Virgini

a , 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979) ; Statev. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e). In other words, on appeal, the State is entitled to the strongest legitimate view of

the evidence an

d all reasonable

inferences tha

t may be drawn the

refrom. Sta te v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). All factual issues raised by the evidence
, including questions concerning the credibility of witnesses and the weight and value to be given the evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett , 788 S.W.2d 559, 5 61 (Tenn . 1990). These standards apply to convictions based upon direct evidence, circumstantial evidence, or both. State v. Carruthers , 35 S.W.3d 516, 557 (Tenn. 2000), cert. denied
,

__U.S. __, 121 S. Ct. 2600 (2001); State v. Vann , 976 S.W.2d 93, 111-112 (Tenn. 1998)(appendix).

Again, the State charged the appellant in this case with three c ounts o f rape, each
count relating to a separate act of penetration. State v. Phillips , 92 4 S.W.2d 662, 665 (Tenn.9 We need not consider the effect of the trial court’ s instruction on coercion as we must reverse t he appellant’s

convictions a

nd remand this case for a new tri al due to the cour

t’s fai lure to ins

truct the jury on sexual battery as a lesser-i

ncluded offense of each rape charge. At the new trial , however, the trial court should omit any instruction to the jur

y on coercion.

-23- 1996)(“‘[A]n

accused may be convicted of more than one offense when the rape involves separat

e acts’ of sexual p

enetration.”).

With respect to e

ach count, the Sta

te was required

to prove beyond

a reas o nable doubt that (1) the appellant engaged in unlawful sexual penetration of RB; (2) the appellant used force to accomplish the act; and (3) the appellant acted intentionally, knowingly, or recklessly. Tenn. Code Ann. § 39-13-503 (1997). The appellant challenges his convictions on the basis that “[t]here is not evidence of force, coercion in this case.” We note as a preliminary matter that each count of the ind ictm ent in this case charged only rape by force rather than rape by force

or coercion. Accordingly, notwiths tanding the trial court’s instructions to the jury, 9 we will only addresswhether the evidence established the appellant’s use of force to c ommit the charged

rapes. Cf. State v. Fitz , 19 S.W.3d 213, 215 & 217 n.5 (Tenn. 2000).

Our legislature has defined “force” as “compulsion by the use of

physical power or violence” and ha s directed that the term “be broadly

construed to acc

omplish the purpose

s of this title.” Tenn. Code Ann. § 39-11-106(a)(12) (1997). Briefly summarizing the evidence in this case, RB first testified tha

t she was unsucce

ssfully attemptin

g to push the appellant’s hands away from her body when he penetrated her vagina with his finger. Second, the appe llant engaged in a

struggle withRB to pull her boxer s horts down her legs prior to perfor ming cunnilingus upon

her; he held her hands down during cunnilingus; and he persisted in perf orming cunnilingus d

espite RB’s effort
to “smash[] his hea

d with [her] legs. ” Third, the appe llant continued to

hold RB’s hands down whil

e penetrating her vagina with hi s penis. According to RB, the appellant’s confinement of her hands prevented her from moving. She concluded that, although she did not suffer any bruises as a result of the appellant’s offenses, she was “sore” following the offenses. In short, the evidence adduced
at trial established the appellant’s use of “compulsion by the use of physica l power” with res

pect to eachcount of

the indictment. See, e.g.
, State v. McKnight , 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994); State v. Arthur Clark , No. W199 9-01 747-CCA-R3-CD, 2000 WL 1224756, at *3 (Tenn. Crim. App. at Jackson, August 25, 2000), perm. to appeal denied , (Tenn. 2001); cf. Statev. Wade Henry Allen Marsh
, No. E1998-00057-CCA-R3-CD, 2000 WL 555231, at *2 (Tenn. Crim. App. at Knoxville, May 8, 2000), perm. to appeal denied , (Tenn. 2001). Th is issue is without mer

it.

F. Lesser-Included Offenses

Finally, the appellant contends that the trial court erred in refusing to instruct the jury

on sexua l battery as a lesser-included offense of each count of rape. Initially, we note that the appellant failed to object to

the trial court’s

jury instructions. N

evertheless, a t

rial court’s duty t

o charge a jury as to the law of each offense include

d in an indictment e

xists regardless of a

ny request

or objection by the appellant. See, e.g.
, State v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999); Tenn. Code Ann. § 40-18-110(a) (1997). Sexual battery is a lesser-included offens e of rape un der the test enunciated

by our supreme court in Burns , 6 S.W.3d at 466-467. See Statev. Timothy R. Bowles
, No. M1997-00092-SC-R11-CD, 2001 WL 8 56575, at *4 (Tenn. at Nashville, July 31,-24-

2001)(publication pending ). Accord ingly, with respect to each count of rape, the trial court was obligated to instruct the jury on sexual battery if there existed evidence that reasonable

minds could accept as to the lesse

r-include d offense and this evidence was le

gally sufficient t

o support a conviction of the lesser-includ e d offense. Burns , 6 S.W.3d at 469. In determining whether the evidence warranted

an instruction on sexual battery, the court was required to “view the evidence liberally in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence.” Id.

As relevant to this case, the offe nse of sexu al battery comprises the following essential elements: (1) unlawful sexual contact with the victim bythe defendant; (2) force was used
to accomplish the act; and (3) the d efe ndant acted intentionally, knowingly, or recklessly. Tenn. Code Ann. § 39-13-505 (1997). “‘Sexual contact’ includes the intentional touc hing of the victim’s
, the defendant’s, or any other person’s in timate parts, . . . if that intentional touching can be reasonably

construed as being for the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6) (1997). In proving the offenses of rape, the State necessarily proved all the essential elementsof sexual battery with the exception of the requirement that the sexual contact be for the purpose of sexual arousal or gratification. Bowles , No. M1997-00092- SC-R1 1-C D, 2001 WL 856575, at *4. Because the jury could reasonably have construed the sexual contact in

this case to be for the purpose of sexual arousal and gratification, the trial court’s failure to instruct the jury on sexual battery was err

or. In this regar

d, we reiterate

our supreme

court’s observation that “[w]hether sufficient evidence supports a conviction of the charged offense does not affect the trial court’s

duty
to instruct on the lesser offens e if evidenc e also supports a finding of guilt on the lesser offense.” Burns
, 6 S.W.3d at 472. Additionally, we cannot conclude beyond a reasonable doubt that the trial court’s error was harmless as the jury was not afforded an opportunity

to consider an inte

rmediate lesser-included

offense. Bowles , No. M1997-00092-SC-R11 -CD, 2001 WL 856575 , at *5; State v. Curtis Jason Ely
, Nos. E1998-00099-SC-R11-CD & E1999-00170-SC-R11-CD, 2001 WL 605097, at *14 (Tenn. at Knoxville, June 5, 2001)(publication pending).

III. Conclusion For the foregoing reasons, we reverse the appellant’s convictions of rape and remand these cases to the

trial court for a

new trial.

___________________________________

NORMA McGEE OGLE, JUDGE