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State v. Reed

Court of Criminal Appeals of Tennessee, Nashville

January 16, 2020

STATE OF TENNESSEE
v.
WILLIAM THOMAS REED

          Session August 20, 2019

          Appeal from the Circuit Court for Montgomery County No. 41300829 Jill Bartee Ayers, Judge

         The Defendant, William Thomas Reed, was convicted after a jury trial of attempted rape of a child, three counts of rape of a child, and two counts of sexual exploitation of a minor by electronic means, and he received an effective sentence of thirty-five years. The State's evidence included DNA analysis, and after conviction, the Defendant requested but was denied post-conviction DNA analysis. On appeal, the Defendant asserts that the trial court erred in denying him a hearing on the admissibility of the DNA analysis technique used by the State's expert, that the trial court erred in admitting the DNA evidence, and that the trial court erred in denying his motion for post-conviction DNA analysis and appointment of an expert witness. We conclude that the trial court did not abuse its discretion in admitting the evidence and that the Defendant did not establish the necessary criteria for post-conviction DNA analysis. Accordingly, the trial court's judgments are affirmed.

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

          Joshua W. Etson (on appeal), and Jeffrey R. Grimes and Justin Sensing (at trial), Clarksville, Tennessee, for the appellant, William Thomas Reed.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, PRESIDING JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         On June 17, 2013, the day after the seven-year-old victim disclosed to her maternal grandmother that her mother's boyfriend, the Defendant, had been sexually abusing her, she was taken to Nashville for a forensic interview and examination. The examination including taking swabs of her genital region, and the resulting analysis by the Tennessee Bureau of Investigation ("TBI") revealed spermatozoa. However, the limited amount of DNA recovered from the swabs was insufficient to yield a DNA profile, and the TBI agent recommended further analysis to be performed by an independent laboratory. The independent testing revealed that the male DNA taken from the victim's genital area was consistent with the Defendant's DNA and that the profile would exclude approximately 99.9 percent of Caucasian males. The jury convicted the Defendant based on evidence that included the victim's detailed testimony regarding the abuse, the recorded forensic interview recounting the abuse, corroboration of the victim's testimony in the form of numerous files found on a computer, scientific analysis revealing the presence of spermatozoa on the victim's genital area, and the evidence at issue in this appeal, the DNA profile obtained by the independent laboratory.

         On August 7, 2014, after receiving the TBI's recommendation for further testing, the State filed a motion to continue the trial in order to allow an independent laboratory to test the evidence recovered from the swabs taken during the victim's forensic examination. On November 4, 2014, Cellmark Forensics[1] ("Cellmark") issued a report indicating that Ms. Barbara Leal, a forensic DNA analyst, had been able to obtain a partial DNA profile using Y-STR[2] testing, that the Defendant could not be excluded as a contributor, and that approximately 99.9 percent of Caucasian males would be excluded. After several continuances and a change in counsel, on July 13, 2016, the Defendant filed a motion in limine to exclude the anticipated testimony of Ms. Leal. The Defendant asserted that the technique used to amplify the DNA recovered from the swab in order to develop the profile could lead to inaccuracies and that the documentation provided did not demonstrate that Cellmark had used appropriate guidelines for analyzing and interpreting the results based on internal validation studies. The Defendant argued that the methodology used to develop the profile, low copy number ("LCN") DNA analysis, indicated a lack of trustworthiness and was not based upon sufficiently reliable facts. The Defendant consulted his own expert, Dr. William J. Watson, and attached a report by Dr. Watson which stated that the use of LCN analysis was "acceptable assuming sufficient applicable validations have been completed and evaluated." Dr. Watson further stated, "As I was not provided these validations I cannot comment on whether or not the process as performed by Cellmark Forensics is valid," and he summarized errors that can occur as the result of developing a profile from a very small amount of DNA.

         The Defendant requested a hearing on the issue, and the trial court issued a written order denying the request. The court noted that the trial had been delayed numerous times and was scheduled to begin on July 18, 2016, but stated that it was not basing its decision on the timing of the motion. Instead, the court found that Y-STR testing "is reliable scientific testing and has been utilized in many cases prior to this one" and that it had "been reviewed many times prior to this case and is accepted in the scientific community." The court concluded that any issue regarding the reliability of LCN DNA analysis, errors in testing, and Ms. Leal's qualifications would affect the weight and not admissibility of the evidence and could be addressed through cross-examination.

         At trial, the victim's maternal grandmother testified that the victim was scheduled to spend a week with her and that she picked the victim up from a friend's house on Sunday, June 16, 2013. The victim's grandmother noticed that the victim was "walking funny" and had difficulty sitting, and she changed the victim's underwear and put some powder in the crease of her legs. After speaking to the victim, she took her to a hospital, spoke with police, and took the victim to a forensic interview in Nashville. She acknowledged that she had never liked the Defendant, that he had ordered her off his property, and that she had told him that she would have him arrested. She explained that her argument with the Defendant did not relate to the allegations of abuse and that her threat, made approximately a week or two before the victim revealed the abuse, was based on a paper she found by his back door indicating that the sheriff was looking for him.

         The victim, who was ten years old at the time of trial, testified that when she was between five and seven years old, she lived with the Defendant, her mother, and her baby brother in a basement apartment at the home of the Defendant's parents, who lived upstairs. She called the Defendant either "Daddy" or "William." She testified that "almost every day" while she lived there, the Defendant would have sexual contact with her. She described sexual contact that included fellatio, cunnilingus, and vaginal-penile penetration. The abuse happened while the victim's mother was at work, and the victim did not call for help from the Defendant's parents because she did not realize what he was doing was wrong. The Defendant showed her movies with "boys and girls touching each other's front private." She described watching these movies downstairs on the bed and upstairs on a laptop on the kitchen table. She stated that the Defendant would have a game open on another window of the computer and would switch windows if someone came by. She described a white liquid coming out of the Defendant's penis when "[h]e was going up and down on his front private with his hand." The victim stated that she did not tell her mother about the abuse because the Defendant told her to keep it a secret. The last time the Defendant had sexual contact with her was the day before she went to spend the night with her friend. The victim's grandmother picked her up from the friend's home the next day.

         The victim's recorded forensic interview was played. The victim at first stated that no one had touched her genital area, but asked why she had gone to the doctor, she stated that the Defendant had made her put her "mouth on his" "yesterday." Her statements to the interviewer described the same abuse she had described at trial. She also drew a picture of the Defendant's genitalia and a picture of the Defendant masturbating. She drew and described the hair on his genitalia and told the interviewer that no one else had abused her and that no one had told her what to say. In the interview, the victim also described the videos the Defendant had shown her. She stated there were "ten hundred" videos on the computer and that they were online at either "B-E-E-G" or "G-E-E-B."

         On cross-examination, the victim stated that the family's dirty clothes were kept together in a pile on the floor and that the family's towels were hung next to one another in the bathroom. Sometimes, the victim would watch movies in her mother's bed. She stated that no one else had ever touched her inappropriately.

         Dr. Lisa Milam, who conducted the forensic interview on June 17, 2013, testified as an expert in the psychosocial evaluation of child sexual abuse. She stated that children around the victim's age are less suggestible than younger children. Dr. Milam testified that children who are six or seven generally understand concepts like "yesterday" and "tomorrow" but that they do not always use them accurately. She stated that a child that age might say "yesterday" for an event that happened in the recent past. She agreed that the victim was not having pain and that the victim's grandmother stated that the Defendant's brother had been accused of child sexual abuse.

         The victim's mother testified that the family lived with the Defendant and his parents for approximately two years. At the time the victim revealed the abuse, she was seven years old, and the victim's mother was working, attending college, and had an eight-month-old son with the Defendant. The Defendant did some lawn work but was mainly responsible for childcare while the victim's mother was in school or at work. After the victim revealed the abuse, the victim's mother gave Investigator Julie Webb her laptop computer, which was used by the whole family. She stated that the computer's screen had at one point stopped functioning and that it was generally kept on the upstairs kitchen table, where it was plugged into a monitor. She stated she had never heard of the website "beeg.com." According to the victim's mother, the wireless connection worked downstairs.

         The victim's mother agreed that she did not have a good relationship with her own mother and that her mother had threatened to have her and the Defendant arrested. She described the threat as "an ongoing thing." She acknowledged that she was dating another man when she met the Defendant, but she denied that the victim was ever alone with her ex-boyfriend. She testified that the Defendant's brother was not at the home and did not use her computer, asserting she only saw him a total of three times during her relationship with the Defendant.

         Investigator Julie Webb testified that she asked the Defendant if he had viewed pornography and that he told her that he had seen it before but did not say he used the computer to view it. He said there was "an issue before" with someone viewing pornography but did not indicate if the victim had seen it. Investigator Webb delivered the laptop computer to Detective Scott Levasseur, who performed a forensic exam. The operating system had been reinstalled in May 2013, so that the files previously stored on the computer were not accessible, but Detective Levasseur was able to recover some files. He did not discover any child pornography but found several hundred history files for the website "beeg.com," which is a pornography site that streams videos. The history showed a variety of tags attached to the visits to the website, including "stepdaughter," "barely legal," and "teen." He acknowledged that he could not determine who had accessed the site or when it had been accessed. He testified he found thousands of pornographic images but did not catalogue them because adult pornography is not illegal and because he could not say whether they came from that particular website.

         At the Nashville clinic, the victim was given a physical examination by Ms. Sue Ross, an expert in pediatric forensic examinations. The victim had irritation in the crease of her legs which Ms. Ross testified was unrelated to sexual contact. Ms. Ross did not find any trauma. She testified that the absence of injury was nevertheless consistent with the victim's report of penile-genital contact or penetration. She noted that a child's hymen could allow penetration without tearing and that a child might feel a touching as "inside" if it penetrates the labia but not vagina. She acknowledged that her findings were also consistent with the victim not having ...


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