Assigned on Briefs October 21, 2014.
Appeal from the Criminal Court for Shelby County No. 11-07370 Glenn Wright, Judge
Harry E. Sayle, Jr., (on appeal) and Robert Felkner (at trial), Assistant District Public Defenders, for the appellant, Clifton Swift.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., Judge.
In November 2011, the Shelby County Criminal Court grand jury charged the defendant with one count of rape of a child. The trial court conducted a jury trial in January 2013.
The State's proof at trial showed that in June 2000, the victim, T.S.M.,  resided in an apartment in Hurt Village with her mother, her four younger siblings, and her mother's boyfriend, Kevin White. On June 17, the victim, who was 12 years old at the time, fell asleep on the living room sofa; the other occupants of the apartment were all asleep upstairs. At approximately 4:30 a.m., the victim was awakened by someone lifting her off the sofa. When the victim struggled to get away, the perpetrator struck the victim in the face, instructed her to "shut up, " and stuck what the victim believed to be a knife against her back. The perpetrator placed something over the victim's face and tied her hands behind her back before moving her closer to a nearby chair. The perpetrator then instructed the victim to pull her pants down and bend over. The victim told the perpetrator that she "had just started [her] cycle, " but the perpetrator inserted his fingers inside her vagina, and he then vaginally penetrated her with his penis. Following the rape, the perpetrator returned the victim to the sofa and warned her to "stay right there." The victim never had an opportunity to see her rapist's face. The victim waited for a minute, then managed to free her hands and run upstairs to inform her mother what had transpired.
The victim's mother contacted the police, and Sergeant Kevin Baker with the Memphis Police Department ("MPD") was dispatched to the victim's residence. Sergeant Baker interviewed the victim and examined the apartment, where he discovered that a kitchen window pane was missing. Sergeant Baker also collected a pair of green shorts, a red sweater jacket, and a multicolored curtain tieback, all of which had been used to cover the victim's face and restrain her hands. Sergeant Baker then escorted the victim and her mother to the Memphis Sexual Assault Resource Center ("MSARC").
At MSARC, nurse practitioner Judy Pinson examined the victim and collected a rape kit, which included vaginal swabs. Ms. Pinson also collected a kit from Kevin White. Both kits were sealed and turned over to the MPD.
The evidence showed that on June 27, 2000, Shantell Hardin with the Tennessee Bureau of Investigation ("TBI") received both the kit containing Mr. White's blood standard and the victim's rape kit, which contained a pair of the victim's underwear, the victim's blood and saliva standards, and vaginal swabs and a slide from the victim's examination by Ms. Pinson. Once the kits were received by the TBI, they were assigned a number and placed in the vault until they were retrieved by TBI Special Agent and Forensic Scientist Donna Nelson, regional supervisor for the Memphis TBI laboratory. On November 5, 2002, Agent Nelson performed deoxyribonucleic acid ("DNA") testing on the victim's vaginal slide and determined that the male DNA profile did not match Mr. White's blood standard. Agent Nelson then entered the DNA profile into the Combined DNA Index System ("CODIS"), but, initially, CODIS returned no match to the profile.
In November 2011, Agent Nelson learned that CODIS returned a hit on the DNA profile from the victim's case. Agent Nelson contacted the MPD to request a buccal swab from the suspect, identified as the defendant, who matched the DNA profile. MPD Lieutenant Cody Wilkerson contacted the defendant, and the defendant voluntarily came to the MPD to meet with Lieutenant Wilkerson. The defendant agreed to give Lieutenant Wilkerson a DNA sample. Upon obtaining a buccal swab DNA sample from the defendant, Lieutenant Wilkerson sealed the sample inside an envelope, labeled it, and delivered it to the evidence room.
Amber Garner, a criminalist with the MPD, retrieved both the victim's rape kit and the defendant's suspect kit containing his buccal swab from the evidence room and delivered the items to the TBI. Agent Nelson tested the defendant's buccal swab and compared the results to that of the DNA profile recovered in the victim's case and determined that the defendant's DNA matched the DNA profile to the exclusion of all others in "the current world population."
With this evidence, the State rested. Following the trial court's denial of the defendant's motion for judgment of acquittal and a Momon collo ...