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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs November 15, 2005 STATE OF TENNESSEE v. DARRELL TOOMES
Appeal from the Circuit Court for Lauderdale County No. 7659 Joseph H. Walker, Judge

No. W2005-00517-CCA-R3-CD - Filed December 16, 2005

A Lauderdale County jury convicted the defendant, Darrell Toomes, of aggravated rape and aggravated criminal trespass in connection with the June 23, 2002 home invasion of Mamie Milliman's residence in Ripley, and the assault of Ms. Milliman. The trial court sentenced the defendant to 11 months and 29 days for aggravated criminal trespass and 23 years as a violent offender for the aggravated rape conviction. On appeal, the defendant challenges the sufficiency of the evidence supporting his aggravated rape conviction and claims that his 23-year sentence for that conviction is excessive. We affirm. Tenn. R. App. P. 3; Judgments of the Circuit Court are Affirmed. JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which J.C. MCLIN , J., joined. NORMA MCGEE OGLE, J., concurred in results only. Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant Public Defender, for the Appellant, Darrell Toomes. Paul G. Summers, Attorney General & Reporter; Brian C. Johnson, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION Taken in the light most favorable to the state, see State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983), the evidence at trial showed that Mamie Milliman, the victim, was 83 years old and lived alone at 226 Keller Avenue in Ripley, Tennessee. The victim testified that in the early morning hours of June 23, 2002, she was awakened by a hand being placed over her face. The intruder removed nylon hosiery from the top of her dresser and tied her hands to the bed. Ms. Milliman testified that the intruder repeatedly told her, "Be quiet, and I won't hurt you." The intruder also asked if she had any money.

The intruder removed the victim's pajama bottoms, raped her, and left. The victim waited a few minutes to be certain that the intruder was gone, and she tried to use her telephone to summon help. The telephone cord was missing, so Ms. Milliman walked to the house of her neighbors, Martha and Curtis Gause. The Gauses called the police, and they reached the victim's brother who picked up the victim and drove her to the emergency room at Lauderdale County Baptist Memorial Hospital. Ms. Milliman was examined by a physician, and after she was discharged, she first went to her brother's house and then later back to her own home. Ms. Milliman determined that a coin collection and a small amount of money were missing. Ms. Milliman did not know the identity of her attacker, and she could not identify at trial the defendant as the person who assaulted and raped her. On cross-examination, Ms. Milliman said that she only saw the attacker's silhouette from light coming in through her bedroom window. She believed that the man was "tall," but otherwise, she could not determine what clothing he wore or even what race he was. She recalled that at one point, the man placed a pillow over her face. Regarding her injuries, Ms. Milliman testified that "it kindly hurt" and that she "just knew [she] burned and hurt down there." Additionally, after her physical examination, Ms. Milliman realized that she was bleeding. The victim's neighbor, Martha Gause, testified about the victim coming to her house for help. Ms. Gause described the victim as "shaking and crying and real red, just real shaken up, very terrified." Ms. Gause also noticed redness around the victim's wrists. Ms. Gause and her husband tried to calm the victim, and they sat with her until the police arrived. When the victim was taken to the hospital, medical technologist Beverly Bullard drew blood from the victim for the police investigation. Ms. Bullard testified that she was trained to document all of her lab work and activities to establish an accurate chain of custody. On cross-examination, Ms. Bullard explained the procedure that she follows whereby an officer will hand her a police kit for drawing blood, and she will draw the blood in the officer's presence, label the tubes, sign the police paperwork, and give the blood directly to the officer. Although Ms. Bullard had no independent memory of drawing blood from the victim, Ms. Bullard insisted that unless an officer was present, she would not have drawn blood. The medical records custodian for Baptist Memorial Hospital, Cheryl Manns, introduced Ms. Milliman's patient records from June 23, 2002. The state established a foundation to admit the records as "business records," and Ms. Manns testified from the records that Ms. Milliman arrived at the hospital at 3:52 a.m. The nursing notes recorded the victim's height as five feet and weight as 110 pounds. The physical examination part of the records showed "Pelvic: Positive bleeding, lower edge of vagina." The victim reported to the medical staff that she had been "held down by single individual and raped." The sexual assault examining physician noted in his records attempted anal penetration, successful vaginal penetration, and "[b]leeding from the lower edge of frenulum."

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Doctor Pankaj Strivastava was the victim's examining physician. He corroborated the victim's injuries as reported in his hospital notes, and he explained the procedure he followed to collect pubic hair combings and anal and vaginal swabs for the police investigation. The nurse who assisted Dr. Strivastava with the rape examination was Michelle Thompson. She testified and identified the rape kit used for the victim; the items and documentation inside the kit bore her handwriting, and she had given the rape kit to Officer Mitchell. Ripley Police Officer Terrence Mitchell was the first officer dispatched to investigate the rape. He interviewed the victim and collected evidence from the victim's bedroom. Officer Mitchell took a pillow case, mattress cover, bed linens, nylon stockings, and a telephone, and he identified these items at trial. He testified that the nylon stockings were knotted, and one of the stockings was tied to the bed rail when he found it. Officer Mitchell also confirmed later receiving the rape kit directly from hospital nurse Thompson. As part of his investigation, Officer Mitchell delivered the rape kit to the Tennessee Bureau of Investigation Crime Laboratory for analysis. On cross-examination, Officer Mitchell testified that Ms. Milliman described her attacker as "about medium build" and "real soft spoken and polite." He thought that Ms. Milliman told him that she was unsure whether the attacker had penetrated her. Officer Mitchell agreed that the only evidence submitted for analysis was the rape kit. He was unable to lift any fingerprints from the telephone, and the other items were kept in evidence storage. He also found no evidence of a forced entry into the residence, and when he questioned Ms. Milliman, she speculated that she may have mistakenly left the door unlocked. The defense established through Officer Mitchell that the case remained "unsolved" for approximately one year. The rape kit was not submitted for testing until almost one month after the assault. Officer Mitchell explained that the kit, containing the samples, was kept in a refrigerator in the evidence room; however, he did not know how quickly refrigerated samples would begin to degrade. On redirect examination, Officer Mitchell testified that shortly after the rape, he was reassigned as a school resource officer and no longer headed up the case. The officer said that he was familiar with the defendant and the defendant's family because they all grew up in the same neighborhood. Officer Mitchell knew that the defendant had a twin brother. Ripley Police Lieutenant Steve Sanders testified that his first involvement with the case was two days after the assault when he spoke with the victim at her home. At that time, the victim mentioned that a coin collection was missing. The first solid lead in the case occurred when the TBI Crime Lab identified DNA collected in the rape kit as matching that of Terrell Toomes. Lieutenant Sanders learned, however, that Terrell Toomes was incarcerated at the time of the rape. Upon further investigation, Lieutenant Sanders discovered that the defendant and Terrell Toomes were twins. As a result, Lieutenant Sanders secured a search warrant to obtain a blood sample from the defendant. The officer was present when the blood was drawn; he took custody of the sample and transported it to the TBI Crime Lab for analysis. -3-

The report of analysis showed that DNA collected from the victim's anal swabs matched that of the defendant and his twin brother. Thereafter, the defendant was arrested for the rape of Ms. Milliman. On cross-examination, Lieutenant Sanders admitted that an initial analysis of the victim's anal swabs performed in August 2002 detected no DNA matches. Approximately one year later, however, a DNA match to the defendant's brother was discovered. Lieutenant Sanders could not explain the discovery other than speculate that the twin brother's DNA was not in the FBI data bank when the first analysis was submitted. The state qualified TBI Special Agent Lawrence James as an expert in DNA analysis and serology. He testified that DNA is unique to each person with the exception of identical twins. Agent James received and analyzed the rape kit containing the samples recovered from the victim. He detected spermatozoa on the anal swabs and proceeded to perform DNA testing. Agent James explained that the FBI maintains a DNA database known as CODIS. Approximately 130 laboratories contribute DNA profiles to the database, which is designed to compare profiles to determine DNA matches. In Tennessee, all convicted felons are required to provide blood samples that are subsequently analyzed and entered into the database. Because of the volume of samples, the TBI does not "do the DNA typing on the convicted offender samples." Instead, the samples are sent to another laboratory that then reports the results to the TBI. The TBI performs random checks to verify the accuracy of the results. Agent James testified that no DNA match was reported the first time that the victim's anal swabs were submitted to CODIS. Sometime later, however, he was notified that there had been a "hit" with the DNA profile of Terrell Toomes. Agent James advised Lieutenant Sanders of the development, but after Lieutenant Sanders investigated the matter, he reported to Agent James that the identified individual had been incarcerated at the time of the rape. Agent James said that he was "dumbfounded," but approximately one day later, Lieutenant Sanders notified him that Terrell Toomes had a twin brother. At that point, Agent James directed the lieutenant to obtain a blood sample from the twin brother, which was done. When Agent James then analyzed the defendant's blood sample, he matched the defendant's DNA profile to the profile obtained from the victim's anal swabs. Statistically speaking, Agent James related that the probabilities of finding the defendant's profile within the African-American population was 1 in 5 billion, 128 million; within the Caucasian population it was 1 in 22 billion, 870 million; within the Southeastern Hispanic population it was 1 in 90 billion, 910 million, and within the Southwestern Hispanic population it was 1 in 185 billion, 700 million. On cross-examination, Agent James explained that the CODIS system runs weekly. Every Tuesday, CODIS uploads the profiles in the local TBI database to make a comparison against the national database. The local profiles stay in the CODIS database, and they are automatically compared on a weekly basis. Agent James testified that whenever a "hit" turns up in the CODIS system, an FBI agent who is designated a "specimen manager" will email him about the -4-

development. Agent James confirmed that the DNA profile submitted in connection with Ms. Milliman's assault was checked on a weekly basis until the "hit" was reported in July of 2003. The defense explored with Agent James an unusual CODIS reporting delay. A TBI coworker had performed work on a 2000 case involving a known blood profile taken from the defendant's twin brother, but the DNA profile evidently was not entered into the CODIS database until approximately two years later. Agent James testified that his office did not connect electronically with CODIS until sometime during 2002. At that time, Agent James and his coworkers pulled profiles from every file and entered the profiles into the CODIS system. Because the records showing when the profiles were entered into the CODIS system were at the TBI laboratory, Agent James could not provide a specific entry date for the Terrell Toomes's profile. The state called Warden Glenn Turner as its last witness. Mr. Turner was the records custodian for the Hardeman County Correctional Facility, and he identified the correctional facility records for Terrell Toomes, the defendant's brother. The records showed Terrell Toomes's date of birth as September 17, 1980. Terrell Toomes was transferred from the West Tennessee State Penitentiary to the Hardeman County Correctional Facility on March 26, 2001. Mr. Turner verified that Terrell Toomes was incarcerated at the Hardeman County Correctional Facility on June 23, 2002. The defense presented no testimony, and based upon the evidence presented at trial, the jury found the defendant guilty of aggravated rape and aggravated criminal trespass and not guilty of aggravated kidnapping or misdemeanor theft. At a separate sentencing hearing conducted on October 15, 2004, the trial court ordered the defendant to serve an effective sentence of 23 years. I. Sufficiency of the Evidence We discern from the defendant's brief on appeal that his only evidence-sufficiency challenge is to the aggravated rape conviction. Accordingly, we confine our analysis to that conviction. Our standard of review of evidence sufficiency is well settled. On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Williams, 657 S.W.2d at 410. Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the convicted criminal -5-

defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). A criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456-58 (1958); State v. Hailey, 658 S.W.2d 547, 552 (Tenn. Crim. App. 1983). If entirely circumstantial, the facts and circumstances must "be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 612 (1971). In such an event, the circumstantial evidence must be both consistent with guilt and inconsistent with innocence. Pruitt v. State, 3 Tenn. Crim. App. 256, 460 S.W.2d 385, 390 (1970). The weight of the circumstantial evidence is for the jury to determine. Williams v. State, 520 S.W.2d 371, 374 (Tenn. Crim. App. 1974) (citing Patterson v. State, 4 Tenn. Crim. App. 657, 475 S.W.2d 201 (1971)). The court may not substitute its inferences for those drawn by the trier of fact in circumstantial evidence cases. Liakas, 286 S.W.2d at 859; Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). The same standard of review is applicable whether the guilty verdict was based upon direct evidence or upon circumstantial evidence. State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895, 897 (1961). As relevant to this case, an individual commits the offense of aggravated rape by "unlawful sexual penetration of a victim" causing "bodily injury to the victim." Tenn. Code Ann.

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