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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs October 26, 2005 STATE OF TENNESSEE v. JAMES THOMAS MANNING
Direct Appeal from the Criminal Court for Putnam County No. 98-0121 Leon C. Burns, Jr., Judge

No. M2004-03035-CCA-R3-CD - Filed January 24, 2006

On April 15, 1998, the Putnam County Grand Jury indicted Defendant, James Thomas Manning, on one count of aggravated burglary, two counts of aggravated rape, one count of attempted aggravated sexual battery, and one count of aggravated robbery. Following a jury trial, Defendant was convicted of two counts of aggravated rape, a Class A felony, and one count of aggravated burglary, a Class C felony. The jury acquitted Defendant of attempted aggravated sexual battery and could not reach a verdict on the aggravated robbery charge. Defendant received concurrent twenty-five year sentences for each of the aggravated rape convictions, and a consecutive six year sentence for the aggravated burglary conviction, for an effective thirty-one year sentence. These sentences were ordered to be served consecutively to a prior sentence out of Sumner County being served by Defendant at the time of trial and sentencing. In his appeal, Defendant argues that the trial court erred by (1) denying his motion to strike expert testimony for failure to lay a proper foundation; (2) excluding evidence that the victim had pending charges for aggravated assault; (3) violating double jeopardy principles in allowing Defendant to be convicted of two counts of aggravated rape; and (4) imposing consecutive sentences. We affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and ROBERT W. WEDEMEYER , JJ., joined. David Neal Brady, District Public Defender; and H. Marshall Judd, Assistant Public Defender, Cookeville, Tennessee, for the appellant, James Thomas Manning. Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William Edward Gibson, District Attorney General; David A. Patterson, Assistant District Attorney General; and Benjamin W. Fann, Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION I. Background The facts developed at trial and taken in a light most favorable to the state are as follows: In the early morning hours of February 10, 1997, the victim, Charlotte Bridgeforth, was at home asleep, when she awoke to a loud "banging" noise. The victim's husband at the time, Greg McMurry, told her that he thought the noise was an intruder. They heard the noise again and the victim's husband, believing the noise was the drug task force, went to the master bathroom and hid in the shower behind the shower curtain. Defendant entered the backdoor, walked through the utility room and the kitchen and looked down into the bedroom where the victim was standing. Defendant was wearing a toboggan pulled down over his face, a black leather coat, pants, and solid white tennis shoes. He pointed a gun at Ms. Bridgeforth and she began screaming. Defendant entered the bedroom where the victim was standing and began yelling at her and telling her to "shut up." Defendant pointed the gun at the victim's temple and kept repeating "give me the money and the stuff." Defendant asked, "[W]here's Greg at?" and the victim responded, "I don't know." Defendant asked, "[W]here's his cars at? [W]here's the jewelry at? You better beep him." The victim explained to Defendant that Greg had been "busted" by the police for selling drugs and they took "everything" so she could not beep Greg nor could she give Defendant "the stuff." During this time, Greg was hiding in the bathroom shower adjacent to the bedroom where Defendant and the victim were located. Ms. Bridgeforth gave Defendant her mortgage money in the amount of two hundred and fifty dollars. When she could not meet Defendant's other requests, he first tried to shove her into the bathroom closet and then the bedroom closet. When those attempts failed, Defendant ordered Ms. Bridgeforth to take off her clothes. Defendant then ordered the victim sit down on the bed and perform oral sex on him. After a few minutes, Defendant told the victim that she was not doing it right and she "better do it right." He then told her to lie back on the bed and he laid on top of her and proceeded to have vaginal intercourse with her until he ejaculated. Defendant continued to hold a gun to the victim's head throughout the attack. The victim testified that she complied with all of Defendant's requests because she did not want to be killed. After raping Ms. Bridgeforth, Defendant told her to "get the gold." She gave him a gold bracelet valued at approximately two hundred dollars, and a gold necklace valued at approximately sixteen hundred dollars. After taking the jewelry from the victim, Defendant tied her hands behind her back using telephone cord from the victim's home telephones. After tying her wrists, Defendant put the victim on the rug in the bathroom where her husband was hiding. He told her "I'm not going to hurt your kids," then ordered her to remain in the bathroom for fifteen minutes. The telephone cord was introduced at trial along with photographs illustrating bruises on the victim's wrists caused by the cord.

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Shortly after Defendant left the bathroom, the victim heard her fourteen year old daughter screaming. The victim's husband untied the cord around her wrists so that she was able to leave the bathroom and find her daughter. Her daughter testified that Defendant entered her bedroom and ordered her to take her clothes off. He began fumbling with his zipper as if to take his pants off, but stopped when she informed him that she had her "period." Defendant ordered her to get out of bed and get in the hall closet. The child did as she was told and Defendant left the house. At approximately 1:05 a.m., Sgt. Jim Eldridge of the Putnam County Sheriff's Department responded to a call from the victim's home. Sgt. Eldridge testified that he was the first officer to respond to the call. Upon arrival, he noticed that the backdoor to the home had been "kicked in" from the outside. The outside frame of the backdoor was splintered and had a large size footprint dent just below the doorknob. Sgt. Eldridge proceeded into the home where people were crying and upset. He secured the scene and tried to calm the victim to find out what had happened. Sgt. Eldridge described the victim as distraught and in shock. He stated that the house was generally clean and orderly and the only sign of major destruction was the damage to the backdoor. Charlotte Bridgeforth, her daughter, and Greg McMurry, were the only individuals present when Sgt. Eldridge arrived at the scene. Shortly thereafter, the Putnam County Ambulance Service transported Ms. Bridgeforth to Cookeville Regional Medical Center for medical treatment. Sara Robinson, a licensed practical nurse (LPN) from the medical center, testified that the hospital completed a rape kit on the victim. Specifically, the hospital took vaginal swabs, oral swabs, combings, and blood from the victim. Photographs were taken of bruises on the victim's wrists. This evidence was later sent to the Tennessee Bureau of Investigation (TBI) Crime Lab for analysis. Detective David Andrews of the Putnam County Sherriff's office was involved in the collection of evidence both from the crime scene and from the victim. Detective Andrews testified that he received the rape kit from the hospital and submitted it to the TBI Crime Lab. According to the lab's analysis of the rape kit, both semen and sperm were present on the victim. After receiving these results, Detective Andrews took blood samples from Defendant and submitted them to the crime lab for a DNA comparison to the sperm and semen found on the victim. Margaret Bash, a forensic serologist at the TBI Crime Lab, provided expert testimony regarding the procedure for conducting DNA analysis. She also testified regarding the results of the DNA comparison in the present case. She explained that the main goal in DNA analysis is to compare two samples, one from a known source and one from an unknown source, to determine if serological material from the unknown source could have come from a known individual. Ms. Bash further explained that the DNA analysis in the present case was conducted to determine whether Defendant contributed the semen and sperm found on the vaginal swabs taken from the victim. As part of her testimony at trial, Ms. Bash simulated the DNA comparison between Defendant's blood, the victim's blood, and the vaginal swab taken from the victim on the night she was raped. In her initial findings and at trial, Ms. Bash found that the DNA in Defendant's blood sample contained "a good match" to the DNA found in the semen from the vaginal swab. Ms. Bash -3-

did not testify as to Defendant's guilt, but she testified regarding the statistical probabilities that someone unrelated to Defendant committed the crime. Specifically, Ms. Bash testified that the "the probability of selecting an unrelated individual at random having the same DNA profile for the Caucasian population is approximately 1 in 490 billion. And from the black population, it's approximately 1 in 212 billion." At the close of all the proof, defense counsel moved to strike the testimony regarding statistical probabilities on the grounds that a proper foundation had not been laid for introduction of such evidence. The judge denied the motion and allowed the testimony to remain in the record. II. Admission of DNA Probability Evidence Defendant argues that the trial court erred by not granting his "motion to strike" the expert testimony of TBI forensic serologist, Margaret Bash, for failure to lay a proper foundation. Defendant does not dispute the serologist's expert qualifications, but argues that the State failed to lay a proper foundation for introduction of the DNA testimony and the statistical probabilities related to the accuracy of the DNA comparison. Defendant offers no basis for why the foundation is lacking and fails to explain what would constitute an adequate foundation. Defendant did not contemporaneously object to this evidence, but moved to strike the testimony at the conclusion of all the proof. As a general rule, the failure of a defendant to interject a contemporaneous objection waives consideration by this Court of the issue on appeal. See Tenn. R. App. P. 36(a); Teague v. State, 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988); State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). Nevertheless, we briefly address Defendant's contention that the statistics relating to the accuracy of the DNA comparison were improperly admitted. The expert explained that the purpose of the DNA analysis in the present case was to make a determination of whether the sperm and semen from Ms. Bridgeforth's vaginal swab contained the same DNA as the blood given by Defendant. She explained that DNA is human genetic material unique to every individual. She further explained that the testing method used was Restriction Fragment Length Polymorphism (RFLP) analysis, the state of the art method for testing DNA at the time of the investigation of this case. Ms. Bash testified about the manner in which she created stain cards from Defendant's blood sample and the vaginal swab from the victim. She placed the stain cards in a chemical solution which caused the DNA to release from the card samples in various sizes. She then took the DNA samples, an additional universally known DNA sample, and a control sample of her own DNA and placed them in a gel. The additional samples were added to verify the accuracy of the test results. She then subjected the samples to electrophoresis, an electric current, which caused the DNA to separate out by different size molecules. Those molecules were then embedded on a nylon membrane. At this point, Ms. Bash conducted a series of probes, each specific to a different point on five different chromosomes. She then made a visual comparison and found a "good match" between the DNA bands from the vaginal swab and the DNA bands from Defendant's blood. Ms. Bash testified that the match was accurate and no mistakes were made in the analysis. The results of the DNA analysis were entered into a computer data base of collected DNA profiles. A frequency was assigned to each of the bands from Defendant's DNA sample. The -4-

program then calculated the rarity with which this particular DNA profile occurs. Based on these calculations, Ms. Bash testified that the probability of randomly selecting an unrelated individual with the same DNA profile as Defendant was approximately 1 in 490 billion in the Caucasian population and 1 in 212 billion in the African-American population. In Tennessee, the admissibility of expert testimony as to scientific or technical evidence is governed by Tennessee Rules of Evidence 702 and 703. See, e.g., State v. Coley, 32 S.W.3d 831, 834 (Tenn.2000); State v. Begley, 956 S.W.2d 471, 475 (Tenn.1997). Generally the admissibility of expert testimony is a matter entrusted to the sound discretion of the trial court, and there can be no reversal on appeal absent a clear abuse of that discretion. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The Tennessee Supreme Court has set forth specific principles to guide trial courts in determining whether to admit scientific or technical evidence. Begley, 956 S.W.2d at 475. First, the evidence must be relevant to a fact at issue in the case. Id. (citing Tenn. R. Evid. 401, 402). Second, the expert must be qualified by specialized knowledge, skill, experience, training or education in the field of expertise, and the testimony in question must substantially assist the trier of fact to understand the evidence or determine a fact in issue. Id. (citing Tenn. R. Evid. 702; McDaniel v. CSX Transp., Inc., 955 S.W.2d. 257, 264 (Tenn. 1997)). Finally, when the expert witness offers an opinion or states an inference, the underlying facts or data upon which the expert relied must be trustworthy. Tenn. R. Evid. 703; McDaniel, 955 S.W.2d at 264. Tennessee has statutorily addressed the issue of the admission of scientific or technical evidence relating to DNA analysis. T.C.A.

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