Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 28, 2017
from the Circuit Court for Sevier County No. 15763-II O.
Duane Slone, Judge
Dustin Lucio, appeals from the denial of his petition for
post-conviction relief. Petitioner was convicted by a jury of
aggravated rape and sentenced by the trial court to 23 years
in confinement to be served at 100 percent release
eligibility. Petitioner's conviction and sentence were
affirmed on direct appeal. State v. Dustin Matthew
Lucio, No. E2014-00642-CCA-R3-CD, 2015 WL 1510830 (Tenn.
Crim. App. Mar. 31, 2015), perm. app. denied (Tenn.
Aug. 13, 2015). Petitioner contends that his appellate
counsel was ineffective for failing to include in the record
on appeal a transcript of the hearing on the State's
motion in limine. In that motion, the State sought to exclude
from evidence the victim's medical records showing that
she received treatment for drug abuse after the offense
occurred. Following a hearing, the post-conviction court
denied relief. Finding no error, we affirm the judgment of
the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
L. Gulley, Jr., Knoxville, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter; Renee
Turner, Senior Counsel; James B. Dunn, District Attorney
General; and George C. Ioannides, Assistant District Attorney
General, for the appellee, State of Tennessee.
T. Woodall, P.J., delivered the opinion of the court, in
which Robert W. Wedemeyer and J. Ross Dyer, JJ., joined.
T. WOODALL, PRESIDING JUDGE
and factual background
to Petitioner's trial, the State filed a motion seeking
to exclude medical records showing that the victim had been
treated for substance abuse after the offense. At the hearing
on the State's motion, the victim testified that she was
raped by Petitioner on February 20, 2009. She testified that
she developed a "drug problem" immediately after
the incident. The victim acknowledged on cross-examination
that she had had a drug problem "[p]robably two
years" prior to the incident, but she got better prior
to the rape. She denied using drugs at the time of the
incident. She testified that she consumed "[p]robably
two shots" of alcohol on the night the rape occurred.
She testified that she entered a drug rehabilitation program
in November 2009, for addiction to "[p]ain killers,
narcotics, " and was currently still in treatment. She
testified that she did not receive treatment for her
addiction prior to the current treatment. She testified that
she stopped using drugs previously when she "[m]oved to
Knoxville." She began using drugs again after the rape.
trial court granted the State's motion, finding
"that the drug treatment was outside of this time period
of this incident and for that reason the Court found that
that would not be allowed to come into trial." The court
made the following findings and conclusions:
The issue straight up is whether or not she can be asked
about drug use during the relevant times in this case, and
certainly that is material, that if someone is under the
influence of drugs during the relevant time, you may ask
about that. But we're not going back to when she was a
teenager. I'll need some authority as to whether or not
the fact that she's in rehabilitation now is relevant or
not. I'm going to make that call. You'll need to
provide me with some authority that say that is. The question
on the use of drugs has to do with a person's cognizant
abilities during the time, relevant times which they
testified to, not whether or not they have been at some point
in time addicted to a drug. So at this point in time you may
ask her about her drug use in the time immediately, and I
don't mean that day, but in general terms of close in
time to the event, and whether or not she was under the
influence during the time alleged for using drugs. But unless
you show me some authority about later on any drug treatment,
I'm going to exclude that.
testimony at the trial, as relevant to the issue in this
appeal, is as follows. The victim testified that on
cross-examination she was not "intoxicated drunk"
but had "a buzz" on the night of the incident. The
victim testified that she had been to two bars with some
friends. She returned alone to one of the friend's
apartment where her 15-year-old niece, A.K., was babysitting
her friend's children. The children were asleep in a
bedroom. The 15-year-old niece was intoxicated and vomiting.
Petitioner, whom the victim testified she had never seen
before, came out of a back bedroom. Another male and a female
also came out of the bedroom and left the apartment.
Petitioner followed them outside, and the victim did not
think he would return. The victim sat on the couch with her
niece. State v. Dustin Matthew Lucio, 2015 WL
1510830, at *1.
came back inside the apartment and told the victim that his
friend had left his cell phone in the bedroom. He asked the
victim to call the phone number. The victim called the number
and went to the bedroom to listen for the phone. She
testified that the lights suddenly went out, and Petitioner
pushed her onto the floor. He closed the bedroom door and put
his hand over her nose and mouth. She testified that she
kicked and screamed and eventually "[g]ave up."
Petitioner told her to move to the bed and remove her pants.
Petitioner then raped her vaginally. Petitioner's phone
rang, and he left the bedroom. He told her not to move or he
would get a knife from the kitchen and kill her. Petitioner
returned to the bedroom and told the victim that he had
friends "coming to do the same thing to you."
Petitioner left the bedroom again, and the victim put on her
underwear, jumped out of the bedroom window, and ...