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Lucio v. State

Court of Criminal Appeals of Tennessee, Knoxville

May 21, 2018


          Assigned on Briefs November 28, 2017

          Appeal from the Circuit Court for Sevier County No. 15763-II O. Duane Slone, Judge

         Petitioner, 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Dustin Lucio.

          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.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and J. Ross Dyer, JJ., joined.



         Procedural and factual background

         Prior 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.

         The 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.

         The 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.

         Petitioner 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 ...

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