        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                      August 6, 2013

               STATE OF TENNESSEE v. RICKY LEE NELSON

                 Appeal from the Criminal Court for Shelby County
             No.  89-04384, 89-04385 & 89   J. Robert Carter, Jr., Judge




               No.  W2012-00741-CCA-R3-CD - Filed January 27, 2014


T HOMAS T. W OODALL, J., concurring opinion. 

       I write separately to express my opinion that the result of this case is mandated by the
following language in Powers v. State, 343 S.W.3d 36, 55 (Tenn. 2011):

        Inevitably, determining whether a petitioner should be afforded DNA
        testing involves some conjecture, as “it is difficult to anticipate what results
        DNA testing may produce in advance of actual testing.”  State v. Peterson,
        364 N.J. Super.  387, 836 A.2d 821, 827 (N.J. Super.  Ct.  App.  Div.  2003). 
        Under section 40-30-304(1) of the Act, however, we begin with the
        proposition that DNA analysis will prove to be exculpatory.  Payne v. State,
        W2007-01096-CCA-R3-PD, 2007 WL 4258178, at *10 (Tenn. Crim.  App. 
        Dec. 5, 2007); Shuttle v. State, No.  E2003-00131-CCA-R3-PC, 2004 WL
        199826, at *5 (Tenn. Crim.  App.  Feb. 3, 2004).  As one jurisdiction has
        ruled, “the trial court should postulate whatever realistically possible test
        results would be most favorable to [the] defendant in determining whether
        he has established” the reasonable probability requirement under that
        jurisdiction’s DNA testing statute.  Peterson, 836 A.2d at 827.  We hold the
        same to be true under Tennessee’s Act. 

Id.

       While we review the trial court’s decision under an abuse of discretion standard,
Thomas Edward Kotewa v. State, No.  E2011-02527-CCA-R3-PC, 2012 Tenn. Crim.  App. 
LEXIS 872, at *15 (Tenn. Crim.  App.  Oct. 26, 2012), in my opinion the trial court’s width
of discretion has been extremely narrowed. 

                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE
