author: ROBERT S. BARNEY, Judge.

text:
    STATE of Missouri, Respondent, v. Donnie F. DISMANG, Appellant.
    No. 26195.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 22, 2004.

      Rosalynn Koch, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellant, Donnie F. Dismang (“Defendant”), was convicted by a Greene County jury of two counts of domestic assault in the first degree, section 565.072; two counts of domestic assault in the second degree, section 565.073; and, one count of armed criminal action, section 571.015. The trial court sentenced Defendant as a prior and persistent offender to concurrent twenty-five year terms of imprisonment for each conviction of domestic assault in the first degree; concurrent terms of ten years imprisonment-for each count of domestic assault in the second degree; and a fifteen year term of imprisonment for the conviction of armed, criminal action, to run consecutive to the other terms of imprisonment.

Defendant raises four points in his appeal, discussed below. We affirm.

As a general rule, we review the evidence and all reasonable inferences in a light most favorable to the verdict and will disregard any evidence and inferences to the contrary. State v. Dewitt, 924 S.W.2d 568, 570 (Mo.App.1996).

In March of 2002, Defendant lived with his girlfriend, Tonya Eagleson (“Victim”), and her two-year-old son, Mikey, in a building containing two apartments located on West Mt. Vernon Street in Springfield. The couple lived in the second-story apartment while their friend, Lisa Cowens, and her twelve-year-old son, Randy, lived in the unit below. On the night of March 2, 2002, Defendant and Victim went to Lisa’s apartment to party with Lisa and her friend, Bob. Randy was present but Mikey was asleep in the unit upstairs. The adults were drinking alcohol. Late in the evening, the group had consumed all the alcohol Lisa and Victim had purchased earlier in the day, which consisted of two bottles of Cisco and one of “hard liquor.” Victim and Lisa’s friend left the apartment to buy some more. On their return, Victim returned to find Defendant angry and ready to “fight somebody.” Victim calmed Defendant down; he and Lisa then resumed drinking. Later, when Victim discovered Defendant and Lisa in the living room kissing, she stormed out and went upstairs to her apartment. Defendant pursued Victim up the stairs and, finding the door locked, broke the door down. He then rushed in and told Victim she couldn’t leave him, and began smashing her head against the wooden arm of the couch on which she was sitting. Holding Victim by the hair, he banged her head repeatedly on the couch arm and punched her in the face. When Defendant stopped, Victim started back toward her son’s room in order to take the boy and, leave. Defendant followed her, grabbed her arms, threw her on the floor of the boy’s room and .choked her repeatedly. Victim lost consciousness briefly, blacking out during one of the choking incidents. While Victim was still on the floor, Defendant kicked her in the ribs and the back, hit her across the legs with the child’s rollerblades, and even bit her on the back.

Victim noticed Mikey sit up in bed and not wanting the child to see her being beaten, Victim got up and headed toward the bathroom. Defendant followed, pushing Victim down the hallway to the bathroom. Once there, Defendant forced Victim to the floor where she hit her head on the toilet bowl rim. With her head still against the rim, he grabbed the toilet seat and smashed it down repeatedly on her head. Defendant let Victim rise, dragged her to the kitchen to get a knife, then dragged her back to the bathroom, where he put the knife to her throat and threatened to kill her. Victim struggled with Defendant and pulled the knife away from her throat. Defendant then grabbed the knife out of her hand and stabbed her in the lower left arm. The knife completely penetrated the left arm and the tip of the knife was visible on the other side. Both Victim and Defendant sustained small cuts on their hands in the struggle. At one point, while in the bathroom, Defendant showed Victim her reflection in the mirror and said, “Look what you’ve done.”

Victim’s knife wound bled profusely. Victim told Defendant that she needed to go to the hospital for stitches; Defendant allowed her to go down to Lisa’s apartment to call 911 because they had no phone in their unit, however, he warned her not to tell the police he was responsible for the injuries or he would kill her and her family.

Defendant followed Victim down to Lisa’s residence. Randy answered the door and called 911 for Victim; Defendant was present when the emergency call was placed.

At 3:44 a.m., Springfield Police Officer Tonya Price responded to the call, which originally indicated only that a female had been assaulted and cut with a knife. Paramedics were already on the scene when the officer arrived. Officer Price followed the ambulance to the hospital to interview Victim and to aid the major crimes investigator in taking photographs of Victim’s injuries. At the hospital, Victim told the officer and hospital staff a fabricated account of being attacked outside of the “Juke Joint” on the square [at Pershing Street and South Avenue] by “some girls.” Victim mentioned that she had been wearing a sweatshirt at the time of the attack and that it was back at the apartment.

Officer Price had some reservations about Victim’s story and returned to the apartment to speak with Defendant and find the sweatshirt. Defendant was incoherent but cooperative as he allowed the officer to look through the apartment. There, Officer Price found the sweatshirt, which had a large amount of blood on it. Officer Price then looked for signs of a struggle. In the bathroom, she saw what appeared to be blood on the wall, around the sink area, and in the toilet stool. When Officer Price noticed blood on Defendant’s socks, and asked him where it came from, he replied that he had been in the downstairs apartment when Victim arrived after the assault and she had bled on him. Officer Price then went down to Lisa’s apartment and spoke with Randy about the incident. Afterward, Officer Price drove to the alleged scene of the assault, where she found no evidence of blood or even that a struggle had taken place.

Victim was admitted to the hospital because she had sustained a closed-head injury in the assault. While she was there, Defendant visited her and made fun of how big her lips were. He also warned her repeatedly not to tell anyone that he had beaten her. Victim was released from the hospital after three days and returned to her apartment, where Defendant had remained.

The day after she returned home, Victim and Defendant were called in to the Greene County Juvenile Office to discuss what had happened to Victim and what was going to happen to Mikey. While they were there, the juvenile authorities discovered there were arrest warrants pending for both of them based on a charge of forgery. They were subsequently arrested and taken to jail. After three days, Victim was bonded out by a family member. Defendant, however, remained incarcerated.

When Victim returned home, she called 911 from Lisa’s apartment, admitting that she had previously filed a false police report and stating that it was actually Defendant who had assaulted her. Officer Mark Foos was dispatched to the scene, where he interviewed Victim briefly. He and the police photographer took pictures of the upstairs apartment and Victim, noting her many, still visible injuries.

At trial, Officer Foos testified there were several places in the apartment where he saw what appeared to be blood, including in the bathroom, on a rolled-up piece of carpet, and on the wall in Mikey’s bedroom. The officer took Victim’s sweatshirt and a knife with him as evidence.

On March 8, while still incarcerated in the Greene County jail, Defendant agreed to be interviewed about the assault. During the interview he told the investigator that, on March 2, he and Victim had been socializing in the apartment below with friends; that he had been drinking alcohol and taking pills; and, because of his ingestion of intoxicants, he couldn’t remember what happened after he left the apartment. However, he admitted that he discussed the beating with Victim when he visited her in the hospital; that Victim “told him [what] he had done to her,” and he apologized to her. During the interview Defendant cried and sobbed, and asked the detective what he could do to make it up to Victim. He begged him to tell her that he was “terribly sorry.”

In his first point, Defendant asserts the “trial court abused its discretion in admitting, over his objections, Exhibit Number 100, which purported to be [Defendant’s] prior Kentucky conviction, and in relying on such record to find [Defendant] to be a prior and persistent offender under § 577.023.... ” Defendant contends that admitting the exhibit was error because it was not properly authenticated or attested to in accordance with section 490.130, and, thus, not entitled to full faith and credit by the trial court, nor admissible as evidence.

We note that during a pre-trial conference, in addition to Exhibit 100, the State also offered Exhibits 101 and 102 in order to prove Defendant to be a prior and persistent offender.

Exhibit 101 contained, inter alia, a “judgment of sentence” which recited a Michigan conviction of felony child abuse in the third degree. The exhibit was accompanied by the attestation of the clerk and certification of the judge, which verified that the clerk’s attestation was in proper form and his signature was genuine, in compliance with section 490.130.

The final exhibit, Exhibit 102, was the penitentiary pack (“pen pack”) from the State of Michigan’s Department of Corrections, which correlated with the offense described in Exhibit 101. This “pen pack” also contained information relating to Defendant’s prior convictions, including five additional, out-of-state felony convictions and attendant sentences of imprisonment. Defense counsel objected to all three exhibits setting out that while defense counsel was not familiar with the certification requirements for out-of-state documents, she, nevertheless, wanted to preserve a “general objection” to the form of the exhibits.

The trial court received the three exhibits into evidence and determined, “based on all three exhibits,” that Defendant was a prior and persistent offender beyond a reasonable doubt.

A trial court is vested with broad discretion as to what evidence it permits and we will reverse only if the trial court has clearly abused its discretion. State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998). A trial court abuses its discretion only when the decision is clearly against the logic of the circumstances and “is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003). On direct appeal, this Court will review the trial court’s determination not for mere error, but for prejudice and will reverse the conviction only if the error is so prejudicial as to deprive the defendant of a fair trial. State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996).

Defendant argues that Exhibit 100, an out-of-state court document from Kentucky, was not properly authenticated under section 490.130, and was not entitled to full faith and credit in the trial court. See fn. 3. “When prior convictions are the basis for enhanced punishment or procedural differences, the state must prove the fact of prior convictions and do so in conformity with applicable statutory requirements for such proof.” State v. Monroe, 18 S.W.3d 455, 458 (Mo.App.2000).

While State’s Exhibit 100 bears a certification of the court clerk on each page, including the three pages pertaining to the “Judgment of Conviction and Sentence” of Defendant for five felonies, the exhibit, nevertheless, lacked certification by a judge that the copies had been attested by the clerk in due form in compliance with section 490.130. Accordingly, Exhibit 100 did not meet the requirements of section 490.130, and should not have been accorded full faith and credit in the trial court as evidence of Defendant’s prior felony convictions. Monroe, 18 S.W.3d at 458. The trial court, therefore, erred by admitting, over timely objection, Exhibit 100 which had not been properly authenticated. Id.

We observe, nevertheless, that in matters involving the proper admission of evidence, Defendant must show not only error but also that he was prejudiced by the admission of the evidence in question. See generally State v. Hayes, 113 S.W.3d 222, 226 (Mo.App.2003). In the instant case, Defendant was not prejudiced by this error because the “pen pack,” contained in Exhibit 102, was properly certified under seal by the “Central Records Department Supervisor [of the] Michigan Department of Corrections” in accordance with section 490.220, which governs the receipt into evidence of “records and exemplifications of office books, kept in any public office of the United States, or a sister state, not appertaining to a court....” § 490.220. Exhibit 102 set out, inter alia, Defendant’s prior criminal history of five felony convictions outside of the State of Michigan. Under similar circumstances in State v. Donehue, 145 S.W.3d 475 (Mo.App.2004), this Court affirmed the trial court’s classification of the Donehue defendant as a prior and persistent offender, based on certified out-of-state prison records which “appear[ed] to have been certified pursuant to Section 490.220_” Id. at 478 n.6. Point denied.

In his second point, Defendant contends the trial court erred in sustaining the State’s objection to the defense’s attempt to cross-examine Officer Price regarding specifics of Victim’s statements to Officer Price about the “girls-on-the-square” story. Defendant asserts this line of questioning was relevant because it supported his theory that Victim was, in fact, injured in an attack on the square, and she only changed her story later when encouraged by her friend, Lisa.

At trial, the State objected on the grounds of improper impeachment, when defense attempted to question Officer Price about details Victim had told her about the assault. Outside the presence of the jury, defense counsel explained that she wanted to show in detail what Victim had told Officer Price regarding what the attackers had looked like and what they said.

The trial court sustained the State’s objection, stating that defense counsel could have questioned Victim during cross-examination about her statements to Officer Price, but had not availed herself of that opportunity. A lengthy and convoluted discussion followed, during which defense counsel argued several different reasons why the testimony should be allowed, including: as an exception to hearsay (not being offered for the truth of the matter, but asserted merely to prove the statements were made); and to show that the officer failed to follow-up on the case.

On appeal, Defendant maintains Victim’s statements to Officer Price should have been admitted under section 491.074, as prior inconsistent statements. However, we note that although defense counsel at trial argued several theories as to why Victim’s statements should be admissible, she never once contended that they were prior inconsistent statements. In fact she stated, “I understand that it’s not necessarily a prior inconsistent statement....”

An argument is not properly preserved for appeal when the Appellant fails to argue at trial the grounds asserted upon appeal. See State v. Tisius, 92 S.W.Sd 751, 767 (Mo. banc 2002). An appellant cannot broaden or change allegations of error on appeal; therefore this claim of error is subject only to plain error review. State v. Cartwright, 17 S.W.3d 149, 154 (Mo.App.2000).

The “plain error” rule should be used sparingly and must not be used to justify review of every point not otherwise preserved for appellate review. State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997). The burden of proving that a “manifest injustice or a miscarriage of justice” will occur in the absence of plain error review rests on the appellant. Id; Rule 30.20. Unless the claim of plain error clearly establishes substantial grounds for believing a miscarriage of justice has resulted, the court will decline to exercise its discretion to review for plain error. Roberts, 948 S.W.2d at 592.

Here, Defendant appears to complain of an error largely of his own making. See Cartwright, 17 S.W.3d at 154. Defense counsel could have asked Victim on cross-examination the very same questions she sought to solicit on cross-examination of Officer Price. The physical facts supported Victim’s claim that Defendant had assaulted her, further evidenced by signs of blood in various parts of the apartment. Victim’s initial story that unknown girls had attacked her at the square was not supported by physical evidence. Lastly, the record reveals the virtual admission by Defendant of the criminality of his acts, when he told Detective Haefling he was “terribly sorry” and that he would do “anything in the world to make it right.” We are not convinced that under these circumstances Defendant has suffered such a manifest injustice or miscarriage of justice as to warrant plain error review. Point II is denied.

In his third point, Defendant maintains the trial court erred in sustaining the State’s objection to Defendant’s closing argument pertaining to Victim having changed her story only after a juvenile hearing was set to determine her son’s “juvenile status.” Defendant contends he should have been allowed to make the argument because it was supported by the evidence.

At trial, Victim testified that the day after she was released from the hospital, she and Defendant “had to go to the juvenile office” to discuss “what happened to me and what was going to happen to Michael [Victim’s son].” On cross-examination, Victim related that the conference had been set up to “discuss Mikey” and that there was to be “a hearing set for next Monday.”

During closing arguments, defense counsel argued: “The next morning they have to go to the juvenile office. There are questions about Tonya’s son and there’s a hearing set for the following Monday regarding her son.” (Emphasis added.) The prosecutor objected, stating that was not a matter of evidence. The objection was sustained.

Defendant contends there was sufficient evidence in the record to support his argument, while the State counters that the closing argument was not entirely supported by the evidence, because there was no evidence of the first half of the statement, that there were “questions” about ‘Victim’s son’s status.”

This Court will review a trial court’s ruling on a closing argument only for an abuse of discretion. State v. Davis, 126 S.W.3d 398, 400 (Mo.App.2004). This discretion is abused when a ruling is clearly against the logic of the circumstances then before the trial court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997). If reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Id. at 883. Error is reversible only when it constitutes both an abuse of discretion by the trial court and prejudices the defendant. Id. at 883-84. “A party may argue inferences justified by the evidence, but not inferences unsupported by the facts.” State v. Barton, 936 S.W.2d 781, 783 (Mo. banc 1996).

Defendant claims he was deprived of his right to a fair trial because, by excluding the statement, he could not present evidence of a possible motive for Victim to change her story and implicate him. There is, however, little or no evidence in the record as to any “questions” or specific issues regarding Victim’s son. The only evidence was that the meeting was about Victim’s son.

In either event, it seems clear that even if the trial court was incorrect about whether the statement was in evidence, the error was not prejudicial to Defendant in view of the overwhelming physical evidence which corroborated Victim’s charges that Defendant had assaulted her. See parallel discussion in State v. Beatty, 617 S.W.2d 87, 92-93 (Mo.App.1981). As previously related, there was blood throughout Victim’s apartment: in the bathroom; her child’s bedroom; the front door of the apartment was damaged (corroborating Victim’s assertions Defendant violently crashed through the door); there was no sign of blood or other signs of an assault in the area where Victim had initially claimed she was assaulted. Point III is denied.

In his final point, Defendant argues the trial court erred in submitting Jury Instruction Numbers Five and Eight because they failed to follow the pattern instructions as designated by MAI-CR3d 319.73. Rather than including this definition of “serious physical injury” in the instructions themselves, as required, the definition was placed in a separate instruction located toward the end of the instruction pack. Defendant contends that by doing so, the jury could have failed to understand the concept of “serious physical injury,” allowing them to convict upon finding a lesser degree of injury.

During the instruction conference, defense counsel objected to Jury Instructions Five and Eight because they did not contain a paragraph defining “serious physical injury,” as directed by the Missouri Approved Instructions. The State contended that the MAI-CR3d allowed for the definitions to be listed in a separate instruction, when used in more than one instruction. See MAI-CR3d 319.74, Notes on Use 7. A separate instructions page with a definition of “serious physical injury” was included as Jury Instruction Number Twenty-Two. The trial court agreed with the State.

During closing argument, the prosecution pointed out that some of the crimes Defendant was charged with required “serious physical injury,” while others simply required “physical injury.” In addition, the State also specifically directed the jury to look at Jury Instruction Number Twenty-Two, stating, “One thing you’ll notice when you get your packet is at the end of all the verdict directors there’s a page that gives you three definitions.”

On a claim of instructional error, this Court will reverse only if there is both error in submitting an instruction and resulting prejudice to the defendant. State v. Taylor, 134 S.W.3d 21, 25 (Mo. banc 2004). Any deviation from the approved instructions shall constitute error and its prejudicial effect must be “judicially determined by considering the facts and instructions together.” State v. Thomas, 75 S.W.3d 788, 791 (Mo.App.2002); see Rule 28.02(f). When used in connection with assessing erroneous jury instructions, “prejudice” is the potential for confusing or misleading the jury. State v. Sours, 946 S.W.2d 747, 750 (Mo.App.1997).

From the record, it appears Defendant was not prejudiced by the erroneous jury instructions, because there was little potential for confusing or misleading of the jury. Id. The definition of “serious physical injury” was included in a jury instruction, albeit in a separate instruction. The State also called the jury’s attention to the definitions instruction and reminded them that there was a difference between “serious physical injury” and “physical injury.” Although the trial court erred in submitting Jury Instructions Five and Eight, “[ejrror alone, however, is not sufficient to require a reversal and remand.” Id. Given these circumstances, we are not persuaded that Defendant was prejudiced. See State v. Stoer, 862 S.W.2d 348, 351 (Mo.App.1993). Defendant’s final point is denied.

The judgment is affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      . Unless otherwise stated, all statutory refer-enees are to RSMo 2000.

      . Additional facts pertaining to Defendant’s points on appeal will be discussed during our analysis of the law and facts.

      . Section 490.130 reads in pertinent part:
      The records of judicial proceedings of any court of the United States, or of any state, attested by the clerk thereof, with the seal of the court annexed, if there be a seal, and certified by the judge, chief justice or presiding associate circuit judge of the court to be attested in due form, shall have such faith and credit given to them in this state as they would have at the place whence the said records come.

        . Section 490.220 reads:
      All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal.

      . All rule references are to the Missouri Court Rules (2004).

      . The jury was made perfectly aware of Victim's change in her recital to police as to who had assaulted her. We note that Victim testified on direct examination that (1) she told the 911 operator she had been accosted by the square at the "Juke Joint;" (2) Victim acknowledged she had previously told police at the hospital she had been jumped at the square; (3) Victim also stated that even after she was released from the hospital, she continued to maintain she had been attacked by some people down at the square; and, (4) Victim set out that after bonding out of jail, where she had been incarcerated on forgery charges, she called police to inform them that she had previously filed a false police report.

      . MAI-CR3d 319.73, reads, in pertinent part:
      "As used in this instruction, the term ‘serious physical injury' means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.”
      We note that in his brief, Defendant indicated that the instructions submitted in error were numbers Seven and Nine, rather than Five and Eight, the instructions actually objected to during the instruction conference. This disparity was noted in the State’s brief and corrected in Defendant’s reply brief.

      . Rule 28.02(f) reads in pertinent part:
      [t]he giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes On Use shall constitute error, the error's prejudicial effect to be judicially detérmined....


source: Caselaw Access Project

author: WILLIAM C. KOCH, JR., J.,

license: Public Domain

text:
    Govindaswamy NAGARAJAN v. Michael E. TERRY.
    Court of Appeals of Tennessee, at Nashville.
    Assigned on Briefs July 23, 2003.
    Dec. 30, 2003.
    Permission to Appeal Denied by Supreme Court May 24, 2004.

      Richard J. Braun and Patricia E. Crot-well, Nashville, Tennessee, for the appellant, Govindaswamy Nagarajan.
    Stephanie H. Gore, Nashville, Tennessee, for the appellee, Michael E. Terry.
   WILLIAM C. KOCH, JR., J.,

delivered the opinion of the court,

in which BEN H. CANTRELL, P.J., M.S., and WILLIAM B. CAIN, J., joined.

OPINION

This appeal involves a dispute between a lawyer and his former client regarding unpaid fees. After the client sued the lawyer for malpractice in the Circuit Court for Davidson County, the lawyer counterclaimed for unpaid fees. The trial court granted the lawyer’s summary judgment motion and dismissed the malpractice claims. Thereafter, the trial court conducted a bench trial on the lawyer’s counterclaim and awarded the lawyer a $53,884.86 judgment. The former client asserts on this appeal that the trial court erred by denying his request for a continuance, granting a judgment by default on the question of liability, denying his request for a jury trial, and considering expert evidence regarding the reasonableness of the lawyer’s fee without affording him the opportunity for cross-examination. We affirm the judgment.

I.

Govindaswamy Nagarajan was terminated as an associate professor of physics at Tennessee State University (“TSU”) in the fall of 1989. He retained David E. Mead and, on January 24, 1990, filed a Title VII action in the United States District Court for the Middle District of Tennessee against the president of TSU and others seeking reinstatement, tenure, and monetary damages. Approximately three months later, he filed a second complaint seeking essentially the same relief in the Chancery Court for Davidson County.

At some point after these lawsuits were filed, Dr. Nagarajan, who is apparently quite a demanding client, fired Mr. Mead and retained Walter T. Searcy, III to represent him in the federal Title VII proceeding. In May 1992, the chancery court notified Mr. Mead, who was still Dr. Naga-rajan’s lawyer of record, that Dr. Nagara-jan’s complaint would be dismissed for failure to prosecute unless some action was taken. Mr. Mead informed Dr. Nagarajan of this development. He also reminded Dr. Nagarajan that he had filed this complaint as a tactic to preserve remedies and recommended filing a voluntary nonsuit in the case. The notice of voluntary dismissal was filed on June 16,1992, and an order of dismissal was entered in the chancery court on June 17, 1992. At the same time, Mr. Mead took steps to formally withdraw as Dr. Nagarajan’s lawyer in the chancery court.

Mr. Searcy later withdrew from representing Dr. Nagarajan and was replaced by Thomas K. Bowers in August 1992. Mr. Bowers eventually withdrew, and in November 1993, Dr. Nagarajan retained Michael E. Terry to represent him in the pending Title VII action that was set for trial in March 1994. Mr. Terry agreed to represent Dr. Nagarajan and requested a $10,000 retainer to be paid in installments. Dr. Nagarajan also informed Mr. Terry that he had another suit pending in the chancery court. After Mr. Terry ascertained that the chancery court suit had been dismissed on June 17, 1992, Dr. Na-garajan insisted that it should be placed back on the docket despite Mr. Terry’s advice that his remedies in the federal proceeding were adequate.

The trial in the United States District Court was later continued. On August 8, 1994, Mr. Terry, at Dr. Nagarajan’s insistence, requested the chancery court to restore Dr. Nagarajan’s complaint to the docket and to set a trial date. Thereafter, Mr. Terry tried Dr. Nagarajan’s Title VII claim in the United States District Court for several weeks, and the District Court took the case under advisement. At a hearing on September 9, 1994, the chancery court granted the motion to reinstate Dr. Nagarajan’s state case to the docket and directed the parties to contact the calendar clerk to set a trial date.

The parties in the chancery court suit took no action to advance the case because they were awaiting the outcome of the August 1994 trial in the United States District Court. On June 5, 1997, the District Court filed an order and memorandum concluding that TSU had discriminated against Dr. Nagarajan in violation of Title VII and that Dr. Nagarajan was entitled to reinstatement as a non-tenured professor and back pay. The court directed the parties to submit their “accounting” of damages for the court’s consideration.

On June 13, 1997, approximately one week after the District Court filed its order and memorandum, Mr. Terry received an order dismissing the pending chancery court case for failure to prosecute. When Mr. Terry and Dr. Nagarajan met on June 16, 1997, Mr. Terry informed him that the chancery court case had again been dismissed and advised him that the suit was no longer necessary because he would obtain sufficient relief in the federal proceeding in light of the District Court’s June 5, 1997 memorandum. Nonetheless, Dr. Na-garajan insisted that another effort should be made to reinstate his state lawsuit. Mr. Terry thereafter filed a motion to set aside the chancery court’s May 12, 1997 order of dismissal. On December 24, 1997, the District Court entered an order awarding Dr. Nagarajan (1) $356,310.22 in back pay plus interest, (2) $61,037.35 in back Social Security contributions, (3) $33,053.00 in back health insurance contributions, (4) $49,818.53 in back retirement contributions, (5) $10,800.00 in back longevity pay, and (6) 540 hours of sick leave. In addition, the District Court directed Dr. Nagarajan to submit his application for the payment of attorney’s fees.

TSU appealed the District Court’s decision to the United States Court of Appeals for the Sixth Circuit. After the Court of Appeals referred the case to its mandatory settlement process, the State and Dr. Na-garajan engaged in lengthy settlement negotiations. Eventually, the State offered to withdraw its appeal if Dr. Nagarajan would accept its offer to pay $525,000 in damages. On June 2, 1998, Mr. Terry recommended that Dr. Nagarajan accept this offer. Dr. Nagarajan responded on June 5, 1998 instructing Mr. Terry to decline the State’s offer because he believed that he might somehow get a better result on appeal even though he had not appealed the District Court’s decision. On June 8, 1998, Mr. Terry advised Dr. Nagarajan that his instructions were unreasonable and requested an opportunity to “discuss the future of [his] representation.” On June 15, 1998, Dr. Nagarajan delivered a letter to Mr. Terry’s office terminating his employment. In August 1998, Dr. Naga-rajan hired Richard H. Batson II to represent him in the pending federal appeal and also directed him to undertake to reinstate the state complaint that had been dismissed by the chancery court on May 5, 1997.

On July 19, 1999, the United States Court of Appeals affirmed the District Court’s judgment for Dr. Nagarajan. On March 20, 2000, the District Court awarded Dr. Nagarajan $167,460.00 in attorneys fees relating to his Title VII case. In April 2000, following negotiations among the five lawyers who had represented Dr. Nagarajan in the federal proceedings, Mr. Terry received $83,000.00 for his work in the case. Two months later, he received an additional $15,742.49.

On April 27, 2000, Dr. Nagarajan filed a pro se malpractice complaint against Mr. Terry in the Circuit Court for Davidson County seeking $500,000.00 in damages for his failure to reinstate his chancery court complaint against TSU and others. Mr. Terry responded by denying the malpractice claim and by counterclaiming for unpaid attorney’s fees. In March 2001, Mr. Terry filed a motion for summary judgment seeking dismissal of Dr. Nagarajan’s malpractice claim on the ground that it was not timely filed. The trial court granted the summary judgment in May 2001 and suggested that the parties either mediate the remaining fee dispute or submit it to the Nashville Bar Association’s fee dispute committee.

When attempts to resolve the fee dispute proved fruitless, Mr. Terry requested the trial court to set the case on the non-jury docket. After receiving a September 2001 trial date, Dr. Nagarajan retained James G. Stranch, III to represent him. The trial was thereafter postponed for another attempt at mediation. After this attempt failed, the trial was set for September 2002. The trial was again postponed until December 9, 2002. On the day of trial, the court learned that Dr. Nagara-jan had sued one of Mr. Stranch’s employees and, therefore, that Mr. Stranch could no longer represent Dr. Nagarajan. Rather than proceeding to trial without a lawyer, Dr. Nagarajan agreed that the trial would be continued until February 10, 2003, and that he would inform the trial court on or before January 17, 2003 either that he had retained a new lawyer to represent him or that he would be proceeding pro se at the February 10, 2003 trial.

On February 7, 2003, Dr. Nagarajan filed a motion for a continuance informing the trial court that he had found a lawyer, Richard J. Braun, who would represent him but only if the trial was again continued. Dr. Nagarajan appeared without a lawyer on February 10, 2003. The trial court denied Dr. Nagarajan’s motion for a fourth continuance and granted Mr. Terry a default judgment on the issue of Dr. Nagarajan’s liability for additional attorney’s fees. The trial court also set a hearing for February 19, 2003 on the issue of damages. Dr. Nagarajan’s lawyer sought unsuccessfully to reschedule the February 19, 2003 hearing. Following a bench trial on February 19, 2003, during which Dr. Nagarajan declined to offer any proof regarding Mr. Terry’s claim for attorney’s fees, the trial court entered an order on February 27, 2003, awarding Mr. Terry a $53,884.86 judgment. Dr. Nagarajan thereafter filed a timely notice of appeal.

II.

The Denial of Dr. Nagarajan’s Motion foe Continuance

Dr. Nagarajan asserts that the trial court erred by denying his February 7, 2003 motion for a continuance. He asserts that the trial court should have granted the motion because his newly retained lawyer would have been available to try the case on the day after it had been set. We have determined that the trial court did not abuse its discretion by further delaying the trial.

Trial courts have broad discretion over the course and conduct of trials. State v. King, 40 S.W.3d 442, 449 (Tenn.2001); Justice v. Sovran Bank, 918 S.W.2d 428, 429-30 (Tenn.Ct.App.1995); Marress v. Carolina Direct Furniture, Inc., 785 S.W.2d 121, 129 (Tenn.Ct.App.1989). This discretion extends to decisions regarding motions for a continuance. Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn.1997). Accordingly, the appellate courts should not second guess a trial court’s decision on a motion for a continuance unless the record, reviewed as a whole, shows a clear abuse of discretion or that a clear prejudicial error has been committed. Blake v. Plus Mark, Inc., 952 S.W.2d at 415; Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 775 (Tenn.Ct.App.2001); Trinity Indus., Inc. v. McKinnon Bridge Co., 77 S.W.3d 159, 175 (Tenn.Ct. App.2001).

Decisions regarding continuances are fact-specific. Accordingly, motions for a continuance should be viewed in the context of all the circumstances existing when the motion is filed. Among the factors that courts consider are: (1) the length of time the proceeding has been pending, (2) the reason for the continuance, (3) the diligence of the party seeking the continu-anee, and (4) the prejudice to the requesting party if the continuance is not granted.

By the time Dr. Nagarajan filed his motion for continuance on February 7, 2003, the case had been pending for almost three years. It had been first set for trial in September 2001 but had been continued three times. The third continuance was required because Dr. Nagarajan created a conflict with his own lawyer after he sued one of his lawyer’s employees. When the trial court granted the third continuance, it reached an explicit understanding with Dr. Nagarajan that he would have until January 17, 2003 to notify the court that he had retained another lawyer and that if he did not retain another lawyer, the trial would proceed on February 10, 2003, and that Dr. Nagarajan would be required to represent himself. These facts support a conclusion that Dr. Nagarajan was not pursuing his case with the sort of diligence that would have merited another continuance.

The record also provides a basis for concluding that the trial court’s refusal to grant Dr. Nagarajan a continuance did not materially prejudice his case with regard to both liability and damages. The facts regarding Mr. Terry’s representation of Dr. Nagarajan were essentially undisputed and had been set out in great detail in the parties’ statements of undisputed material facts. The parties’ differences involved the legal conclusions to be drawn from these facts. The only material factual dispute regarded the manner in which Mr. Terry had calculated the additional attorney’s fees he was claiming. The trial court’s action on February 10, 2003 did not deprive Dr. Nagarajan of his opportunity to cross-examine Mr. Terry on his fee calculation or to introduce evidence on this question because it continued the hearing to February 19, 2003, to enable the parties to address that question. Mr. Terry testified and was subject to cross-examination at that hearing, and Dr. Nagarajan could have presented any other evidence on that issue he desired.

III.

The Default Judgment on Me. TeRRy’s Counterclaim

Dr. Nagarajan also asserts that the trial court erred on February 10, 2003, by granting Mr. Terry a default judgment on the issue of Dr. Nagarajan’s liability for additional attorney’s fees. He insists that he informed the trial court on February 10, 2003, that he was ready to proceed without counsel and, therefore, the trial court should not have sua sponte given Mr. Terry a default judgment. We find no merit in this argument for two reasons.

The first reason is that the record does not support Dr. Nagarajan’s self-serving assertion that he informed the trial court during the hearing in chambers on February 10, 2003 that he was prepared to proceeding with the trial without a lawyer. The trial court stated explicitly both in its orders and on the record of the February 19, 2003 hearing that Dr. Nagarajan had represented to the court on February 10, 2003 that he was not prepared to proceed with the trial notwithstanding the December 18, 2002 order. Appealing parties have an obligation to provide appellate courts with an appellate record containing a full, accurate, and complete account of what transpired at trial with regard to the issues raised on appeal. Tenn. R.App. P. 24(a). Dr. Nagarajan has not provided a record of the February 10, 2003 proceedings. In the absence of such a record, we will accredit a trial court’s version of what transpired at a hearing over that of one of the parties.

The second reason is that Dr. Na-garajan never requested the trial court to set aside the default judgment on the question of liability. The decision to grant the default judgment was not immediately appealable because it was not final, and Dr. Nagarajan could have asked the court to set the default judgment aside at the February 19, 2003 hearing. This court generally declines to grant relief on appeal to litigants who were responsible for or who failed to take reasonably available action to prevent the harmful effect of an error. Tenn. R.App. P. 36(a). In light of the conduct of Dr. Nagarajan and his lawyer after February 10, 2003, we find that Dr. Nagarajan is in no position now to take issue with the default judgment.

IV.

Dr. Nagarajan’s Right To a Jury Trial

Dr. Nagarajan argues that he was denied his right to a jury trial on Mr. Terry’s counterclaim. He asserts that he had a right to a jury trial on the counterclaim because he requested a jury for his malpractice claim. While Dr. Nagarajan’s general demand for a jury survived the dismissal of his complaint, we have determined that Dr. Nagarajan and his lawyer waived his demand for a jury by their acquiescence in placing the case on the trial court’s non-jury docket.

A.

Dr. Nagarajan’s legal malpractice complaint contained a demand for a jury “to hear this cause.” Mr. Terry responded by filing an answer and a counterclaim for unpaid attorney’s fees. Mr. Terry did not request a jury trial on his counterclaim. Dr. Nagarajan filed a reply to Mr. Terry’s counterclaim that did not include a demand for a jury trial on Mr. Terry’s counterclaim.

The only remaining issue to be resolved after the trial court granted Mr. Terry’s motion for summary judgment on May 21, 2001, was his claim for additional attorney’s fees. On July 24, 2001, the trial court entered an order setting the case for trial on the “non-jury docket” on September 26, 2001. When the court continued the trial to enable the parties to mediate their dispute, its order reiterated that the case would “be placed back on the non-jury docket” if mediation failed. The case came on to be tried on December 9, 2002, without a jury but was continued until February 10, 2003, because Dr. Nagarajan had forced his lawyer to withdraw.

At some point apparently following December 9, 2002, Dr. Nagarajan renewed his demand for a jury trial, and the trial court apparently denied it. Inexplicably, however, his lawyer did not orally renew his demand for a jury when the trial began on February 19, 2003. Instead, his lawyer announced that “we’re prepared to proceed in whatever way your Honor wishes to proceed.” The first mention of Dr. Nagarajan’s renewed demand for a jury was made after the plaintiff had closed its case. After consulting with his client, Dr. Nagarajan’s lawyer announced that “we believe that the Court is in error on the right to a jury” and, therefore, that “Mr. Nagarajan will not be testifying today.”

B.

The Effectiveness of Dr. Nagarajan’s Jury Demand

The right to a jury trial guaranteed by Tenn. Const, art. I, § 6 is one of the most valuable personal rights protected by the Constitution of Tennessee. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 540, 354 S.W.2d 464, 467 (1962); State Bank v. Cooper, 10 Tenn. (2 Yer.) 599, 604 (1831). In civil cases, however, the right is not self-enforcing. A party who desires a jury trial must file and serve a timely demand for a jury in accordance with Tenn. R. Civ. P. 38.02. Parties who fail to comply with Tenn. R. Civ. P. 38 have not properly requested a jury trial and will be deemed to have waived their right to a jury trial. Tenn. R. Civ. P. 38.05; Gribble v. Buckner, 730 S.W.2d 630, 633 (Tenn.Ct. App.1986).

Tenn. R. Civ. P. 38.02 provides that:

Any party may demand a trial by jury of any issue triable of right by jury by demanding the same in any pleading specified in Rule 7.01 or by endorsing the demand upon such pleading when it is filed, or by written demand filed with the clerk, with notice to all parties, within fifteen (15) days after the service of the last pleading raising an issue of fact.

Parties requesting a jury may specify the issues to be tried by the jury, but if they do not specify particular issues, their demand will be deemed to include all issues triable by a jury. Tenn. R. Civ. P. 38.04. Once a demand for a jury trial has been made, it cannot be withdrawn without the consent of all the parties as to whom the issues have been joined. Tenn. R. Civ. P. 38.05. Trial courts may, in their discretion, order a trial by jury notwithstanding a party’s failure to demand a jury in the interest of justice. Tenn. R. Civ. P. 39.02 & cmt.

A timely, general demand for a jury that does not specify issues is regarded as a demand for a jury on all issues in the Case. 9 FEDERAL PRACTICE & PROCEDURE § 2318, at 136; Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 (5th Cir. 1998). Plaintiffs who have included a general jury demand in their complaint are entitled to a jury on all triable issues pertinent to their complaint, including issues raised in counterclaims. Horwitz v. Alloy Automotive Co., 677 F.Supp. 564, 566 (N.D.Ill.1988) (once a general jury demand has been asserted, a second demand need not be made after the filing of a counterclaim); Ciaglo v. Fanning, 101 Mich.App. 17, 300 N.W.2d 436, 438 (1980). Thus, plaintiffs who have included a general jury demand in their complaint are entitled to a jury on the triable issues raised in a defendant’s counterclaim even if their complaint is dismissed. In a case strikingly similar to this one, the Supreme Court of Ohio held that a client who included a general jury demand in the malpractice complaint against her former lawyer was entitled to a jury trial on the lawyer’s counterclaim for unpaid attorney’s fees after her malpractice complaint had been dismissed. Soler v. Evans, St. Clair & Kelsey, 94 Ohio St.3d 432, 763 N.E.2d 1169, 1175 (2002).

The principles applied by the Supreme Court of Ohio in Soler v. Evans, St. Clair & Kelsey are applicable to this case. Dr. Nagarajan included a general jury demand in his complaint. Mr. Terry’s counterclaim for attorney’s fees was a compulsory counterclaim because it arose out of the same transaction that gave rise to Dr. Nagarajan’s complaint. Tenn. R. Civ. P. 13.01. The triable issues in the complaint and counterclaim were inextricably intertwined because Mr. Terry could have potentially forfeited all or part of his fee if he had committed malpractice and if his malpractice had damaged Dr. Nagara-jan. Accordingly, Dr. Nagarajan’s general demand for a jury in his complaint survived the dismissal of his malpractice complaint against Mr. Terry.

C.

DR. Nagarajan’s Waiver of His Right to a Jury Trial '

Determining that Dr. Nagarajan’s jury demand survived the dismissal of his complaint does not end our inquiry. Dr. Nagarajan would not have been entitled to a jury at either the February 10 or 19, 2003 hearings if he effectively waived his right to a jury sometime between the filing of his complaint and the date of the trial. We have determined that the record clearly demonstrates that Dr. Nagarajan waived his right to a jury trial.

Jury demands are not irrevocable. Litigants who have requested a jury may subsequently waive their right to a jury with the “consent of all parties as to whom issues have been joined.” Tenn. R. Civ. P. 38.05. This waiver may be explicit or by implication. Russell v. Hackett, 190 Tenn. 381, 383, 230 S.W.2d 191,192 (1950); Beal v. Doe, 987 S.W.2d 41, 47 (Tenn.Ct.App.1998); Davis v. Ballard, 946 S.W.2d 816, 817 (Tenn.Ct.App.1996). Courts, however, should indulge in every reasonable presumption against waiver of a jury demand in a civil case. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937). A waiver should not be inferred without reasonably clear evidence of an intent to waive. L & R Realty v. Connecticut Nat’l Bank, 246 Conn. 1, 715 A.2d 748, 753 (1998). Therefore, when doubt exists, a court should not find that a party who requested a jury waived its right. Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 645 (1st Cir.2000); Lovelace v. Doll, 820 F.2d 223, 227-28 (7th Cir.1987); American Standard, Inc. v. Crane Co., 60 F.R.D. 35, 42-43 (S.D.N.Y.1973).

The record reflects that Dr. Nagarajan explicitly waived his right to a jury trial on Mr. Terry’s counterclaim. Following the entry of the summary judgment dismissing Dr. Nagarajan’s claim, Mr. Terry filed a motion requesting a non-jury trial. The record contains no indication that Dr. Na-garajan, who was representing himself at the time, objected to the request for a non-jury trial. Accordingly, on July 24, 2001, the trial court filed an order setting the case for a non-jury trial on September 26, 2001. Thereafter, Dr. Nagarajan retained counsel, and the parties agreed to continue the trial to engage in mediation. The October 18, 2001 agreed order continuing the trial directs the parties to “inform the Court whether or not this matter should be placed back on the non-jury docket” should mediation fail. The entry of the October 18, 2001 order acknowledging that the case was on the court’s non-jury docket supplies clear evidence that all the parties had consented at that point to try the case without a jury. Sewell v. Jefferson County Fiscal Court, 863 F.2d 461, 464-65 (6th Cir.1988) (failure to object to an order scheduling a case on the non-jury docket implies consent to a non-jury trial).

As far as the record shows, no other mention of a jury was made prior to the February 10, 2003 trial when the trial court granted Mr. Terry a default judgment with regard to Dr. Nagarajan’s liability for additional attorney’s fees. The first mention of a jury trial came in a brief filed with the court on February 18, 2003, in support of Dr. Nagarajan’s “renewed demand” for a jury. Notwithstanding this brief, neither Dr. Nagarajan nor his lawyer requested a jury at the beginning of the proceeding on February 19, 2003. The subject of a jury was not mentioned until Mr. Terry closed his case.

There are substantial questions about the efficacy and timeliness of Dr. Nagarajan’s renewed request for a jury. However, even if we assume that his request was timely, Dr. Nagarajan again waived his right to a jury trial when neither he nor his lawyer requested a jury at the beginning of the hearing on February 19, 2003. Clearly, broaching the subject of a jury after the close of Mr. Terry’s case was untimely, and the trial court cannot be faulted for declining to start the proceedings anew and grant Dr. Nagarajan a jury trial pursuant to Tenn. R. Civ. P. 39.02.

Y.

Consideration of the Affidavit of Mr. Terry’s Expert

As a final matter, Dr. Nagarajan takes issue with the trial court’s decision to admit and consider the affidavit of Charles R. Ray regarding the reasonableness of Mr. Terry’s claim for attorney’s fees. He asserts that the trial court’s decision to admit the affidavit deprived him of his opportunity to cross-examine Mr. Ray. We have determined that the trial court erred by admitting Mr. Ray’s affidavit into evidence over Dr. Nagarajan’s objection. However, we have also determined that the admission of the affidavit was harmless because it did not affect the judgment.

In an agreed scheduling order filed on May 14, 2002, the trial court directed the parties to disclose their expert witness and exchange their expert witness statements by August 1, 2002. On August 22, 2002, Mr. Terry disclosed that he intended to call Charles R. Ray as an expert witness and provided a summary of Mr. Ray’s testimony regarding Mr. Terry’s entitlement to an additional fee, the reasonableness of his requested fee, and the value of his services to Dr. Nagarajan. On the same day, Dr. Nagarajan filed a motion in limine seeking to exclude Mr. Ray’s testimony because it was (1) irrelevant, (2) contrary to the decision of the United States District Court in the Title VII proceeding, and (3) “[cjonfusing, Misleading, and a [w]aste of the [c]ourt’s time.” Despite extensive briefing and supplemental briefing by the parties, the record contains no indication that the trial court ever ruled on the motion in limine.

On February 18, 2003, the day before the final hearing, Mr. Terry filed two affidavits with the court: his affidavit and that of Mr. Ray. Mr. Ray’s affidavit stated that Mr. Terry was entitled to $113,989.86 and that Mr. Terry’s request for $53,884.86 was “very favorable” to Dr. Nagarajan. After he testified at the February 19, 2003 hearing, Mr. Terry tendered Mr. Ray’s affidavit to the court explaining that Mr. Ray would have been available to testify had the case been tried either on December 9, 2002, or February 10, 2003, but that he was unavailable to testify on February 19, 2003. Dr. Nagarajan’s lawyer objected to the affidavit on the ground that it would deprive him of his opportunity to cross-examine Mr. Ray. The trial court overruled the objection and admitted the affidavit.

As a general matter, evidence introduced at trial takes the form of testimony of live witnesses who are subject to cross-examination, depositions of unavailable witnesses who have been available for cross-examination, and properly authenticated exhibits. The Tennessee Rules of Civil Procedure do not provide for the use of affidavits as evidence at trial except by consent. Botts v. Botts, Obion Eq. No. 6, 1990 WL 183742, at *7 (Tenn.Ct.App. Nov. 29, 1990) perm. app. denied (Tenn. May 6, 1991); Turner v. Turner, 776 S.W.2d 88, 90 (Tenn.Ct.App.1988). With regard to requests for attorney’s fees, however, it has become commonplace to use affidavits and counter-affidavits to try issues regarding the reasonableness of a requested fee. In these circumstances, the parties either have not objected to the use of affidavits because they have had sufficient opportunity to prepare and submit counter-affidavits or the affiant has been reasonably available for cross-examination. Fain v. Fain, No. M1999-02261-COA-R3-CV, 2000 WL 1879548, at *6 (Tenn.Ct.App. Dec. 29, 2000) (No Tenn. R.App. P. 11 application filed) (affidavit admissible because the opposing party did not request cross-examination); Sommerville v. Sommerville, No. 01A01-9710-CV-00559, 1998 WL 792050, at *5 (Tenn.Ct.App. Nov. 16, 1998) (No Tenn. R.App. P. 11 application filed) (opposing party had an opportunity for cross-examination); Jones v. Mankin, No. 88-263-11, 1989 WL 44924, at *10 (Tenn.Ct.App. May 5, 1989) (No Tenn. R.App. P. 11 application filed) (affidavit admissible where opposing party did not request opportunity to put on proof or to depose the affiant).

It is, no doubt, true that Dr. Na-garajan had known since August 2002 that Mr. Terry intended to use Mr. Ray’s testimony to support his claim for attorney’s fees. However, it is also true that until February 18, 2003, Dr. Nagarajan reasonably understood that Mr. Ray would be testifying in person and, therefore, subject to cross-examination. Thus, Dr. Nagara-jan and his lawyer could reasonably have decided to attempt to undermine Mr. Ray’s testimony by cross-examination rather than by generating counter-affidavits. When they discovered on the day before trial that Mr. Ray would not be testifying, they did not have reasonable time either to depose him or to obtain counter-affidavits. Therefore, the trial court erred by admitting Mr. Ray’s affidavit over Dr. Nagarajan’s objection.

Parties are not entitled to a reversal of a judgment based on an error that, more probably than not, did not affect the outcome of the trial. Tenn. R.App. P. 36(b). Thus, errors either in admitting or excluding evidence may be found to be harmless. Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 500-01 (Tenn.Ct.App.2000). We have determined that the trial court’s erroneous admission of Mr. Ray’s affidavit did not affect its judgment. Mr. Ray opined that Mr. Terry was entitled to $113,989.86 in additional attorney’s fees. However, the trial court awarded Mr. Terry $53,884.86— precisely the amount he requested. Accordingly, Mr. Ray’s opinion did not influence the trial court’s decision.

VI.

We affirm the judgment and remand the case to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal to Govindaswamy Nagarajan for which execution, if necessary, may issue.

      . For reasons not appearing in the record, an order reflecting the trial court's decision at the September 9, 1994 hearing was not entered until August 5, 1996.

      . This order had been entered on May 12, 1997, and the record contains no clear explanation for Mr. Terry’s delay in receiving it.

      . Between July 1997 and April 1999, the parties continued the hearing on this motion seven times apparently by agreement. Understandably, they did not desire to press the matter because they were attempting to negotiate a settlement of Dr. Nagarajan’s federal damage claim. The chancery court eventually heard the motion on April 30, 1999, and entered an order on May 14, 1999 declining to set aside the May 12, 1997 order dismissing the complaint for failure to prosecute. As far as the record shows, no appeal was taken from this order.

      . Mr. Braun had another matter in the United States District Court for the Middle District of Tennessee already set for February 10, 2003.

      . Jessee v. American Gen. Life and Acc. Ins. Co., No. E2002-00182-COA-R3-CV, 2003 WL 165777, *5 (Tenn.Ct.App. Jan. 24, 2003) perm. app. dismissed (Tenn. April 24, 2003); Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.Ct.App.1992).

      . Evers v. Sherman, No. 88-208-11, 1988 WL 132687, *4 (Tenn.Ct.App. Dec. 14, 1988) (No Tenn. R.App. P. 11 application filed); Hunt v. Hoppe, 22 Tenn.App. 540, 545, 124 S.W.2d 306, 309 (1938).

      . Even though these proceedings were held in chambers, Dr. Nagarajan could have used his court reporter had he simply requested that the proceedings be transcribed. Because Dr. Nagarajan did not request that the proceedings in chambers be transcribed, he alone is responsible for the absence of a transcript of these proceedings from the record.

      . Had the default judgment resolved all the claims between the parties, it would have been final and immediately appealable. First Union Nat'l Bank v. Abercrombie, No. M2001-01379-COA-R3-CV, 2003 WL 22251347, at *2 (Tenn.Ct.App. Oct. 2, 2003) (No Tenn.R.App. P. 11 application filed).

      . The appellate record does not reveal precisely when the renewed demand was made. In his February 18, 2003 memorandum supporting the renewed demand for a jury, Dr. Nagarajan "requests that this Court reverse is [sic] prior ruling and reinstate this cause on the jury docket.”

      . 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2318, at 133 (2d ed. 1995) ("Federal Practice & Procedure”).

      . This consent must take the form of either a written stipulation by the parties or their lawyers or by oral stipulation made in open court and entered in the record. Tenn. R. Civ. P. 39.01.

      . Because of the similarities between Tenn. R. Civ. P. 38 and Fed.R.Civ.P. 38, the decisions of the federal courts construing Fed. R.Civ.P. 38 provide us with helpful guidance in our interpretation and application of Tenn. R. Civ. P. 38. Decisions of the federal courts construing analogous federal rules of procedure can provide helpful guidance in interpreting our own rules. Frazier v. East Tenn. Baptist Hosp., 55 S.W.3d 925, 928 (Tenn. 2001); Harris v. Chern, 33 S.W.3d 741, 745 n.2 (Tenn.2000); Byrd v. Hall, 847 S.W.2d 208, 211 n.2 (Tenn.1993); Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 n. 7 (Tenn.Ct.App.1995).

      . Commentators have advised that careful practitioners can avoid the predicament facing Dr. Nagarajan in this case by filing a timely demand for a jury following the filing of a counterclaim. 5 James W. Moore et al., Moore’s Federal Practice ¶ 38.39[2], at 38-369 (2d ed. 1995).

      . Another court reached a different result on similar facts because the plaintiff's jury demand was limited to "each and every count of the complaint.” Mt. Everest Ski Shops, Inc. v. Ski Bam, Inc., 736 F.Supp. 531, 532 (D.Vt.1989).

      . A lawyer’s claims for unpaid attorney’s fees are compulsory counterclaims in a client’s legal malpractice action. First Am. Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d 135, 139-40 (Tenn.Ct.App.2001); see also Starks v. Browning, 20 S.W.3d 645, 652-53 (Tenn.Ct.App.1999).

      . Crawford v. Logan, 656 S.W.2d 360, 364-65 (Tenn.1983).

      . Allowing a non-jury trial to proceed without objection is sufficient to imply a party’s consent to a trial without a jury. Russell v. Hackett, 190 Tenn. at 384, 230 S.W.2d at 192; see also Front v. Lane, 443 N.E.2d 95, 97 (Ind.Ct.App.1982).

      . There is likewise no indication that the parties attempted to depose Mr. Ray.


author: JERRY L. SMITH, J.,

text:
    James H. CRAWFORD v. STATE of Tennessee.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Assigned on Briefs Nov. 18, 2003.
    Feb. 27, 2004.
    Application for Permission to Appeal Denied by Supreme Court June 21, 2004.

      Mark H. Toohey, Kingsport, Tennessee, for the appellant, James H. Crawford.
    Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Greeley Wells, District Attorney General; and James Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JERRY L. SMITH, J.,

delivered the opinion of the court,

in which JOSPEH M. TIPTON and ROBERT W. WEDEMEYER, JJ., joined.

On March 23, 1998, The petitioner pled guilty to six (6) counts of attempt to commit incest and six (6) counts of attempt to commit rape. He was sentenced to six (6) years for each count, all to be served concurrently to each other. On March 20, 2002, he filed a Petition for Post-Conviction Relief. He based his petition on two grounds of relief, attorney misrepresentation and DNA analysis under Tennessee Code Annotated section 40-30-403. The trial court dismissed the petition as time-barred on the attorney misrepresentation issue and as not meeting the statutory requirements on the DNA issue. The petitioner appeals the trial court’s decision. We affirm the trial, court.

Factual Background

On March 23, 1998, The petitioner, James Harold Crawford, entered an Alford plea to six (6) counts of attempted incest and six (6) counts of attempt to commit rape. He was sentenced as a Multiple Range 2 Offender to six (6) years for the attempt to commit incest convictions and eight (8) years for the attempt to commit rape convictions. These sentences were to run concurrently with each other, but consecutively to two other convictions that are not included in the record. The petitioner never filed an appeal of his sentence.

On March 20, 2002, he filed a Pro Se Petition for Relief from Conviction or Sentence. This was his first petition of this nature. He based his petition on two grounds for relief, attorney misrepresentation and DNA analysis under Tennessee Code Annotated section 40-30-403. On March 27, 2002, the trial court entered an order dismissing all of the petitioner’s issues except for those relating to DNA testing. The trial court also stated that the petitioner needed to file an amended petition regarding the DNA testing to set out “with clarity his position, theory, and factual basis.” The trial court gave the petitioner forty-five (45) days within which to file the amended petition.

The petitioner filed an amended petition. Regarding the DNA test, the petitioner stated the following:

It was clearly established that Petitioner ejaculated and left sperm stains in the alleged crime scene, i.e., his house. Specifically: a comforter and quilt in state possession contain sperm stains. The State’s theory was that said stains came from alleged unlawful sexual intercourse between Petitioner and Victim. Petitioner’s theory was that (A) any sperm DNA belonging to him came from having lawful sexual intercourse with his wife at the time, (B) any other person’s sperm DNA present in Petitioner’s house and bedroom linens would prove that the Victim was sexually active— with other men — at the time she falsely accused him of sexual assault and (C) if the other man’s sperm DNA came out of Petitioner’s then-wife, it would provide her motive for encouraging false sexual allegations against Petitioner.
The basis for Petitioner’s allegation that the stains would show multiple males is (A) his personal review of the records RECENTLY obtained from his former attorneys ... and the preliminary [sic] test results conducted by the State. (B) his personal reasonable knowledge that the victim was sexually active at the time she falsely accused him of sexual assault. Appointed counsel would be able to consult with Scientific Experts to verify Petitioner’s basis. (C) Petitioner’s personal knowledge that he did not unlawfully assault the Victim sexually.
The State’s investigation did result in stains being found on two items from Petitioner and Victim’s home, to-wit: Quilt and Comforter. Said items are currently in State’s possession, custody and control.

After reviewing the petitioner’s amended petition, the trial court entered an order on May 22, 2002 appointing counsel, directing the State to respond to the DNA issue and setting an on-record conference. After holding an on-record conference on December 17, 2002, the trial court dismissed the remaining issues in the petitioner’s petition for post-conviction relief. The petitioner filed a Notice of Appeal on January 9, 2003.

The petitioner argues two issues in this appeal: (1) was it proper for the trial court to dismiss the portions of the Post-Conviction Petition without a hearing or appointing counsel, which were not related to DNA testing upon the grounds that the statute of limitations had expired? and (2) was it proper for the trial court to dismiss the petitioner’s request for DNA testing pursuant to Tennessee Code Annotated section 40-30-401 without a hearing?

The post-conviction court’s findings of fact are conclusive on appeal unless the evidence preponderates otherwise. See State v. Buns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issue raised, we will afford those findings of fact the weight of a jury verdict, and this court is bound by the court’s findings unless the evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn.1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn.Crim.App.1997). This Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.2001). However, the post-conviction court’s conclusions of law are reviewed under a purely de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.2001).

Dismissal of Non-DNA Issues

The petitioner first argues that the trial court should not have dismissed the portions of his petition not related to the DNA issues without appointing counsel or conducting a hearing. The petitioner’s counsel concedes that the petitioner’s petition was well outside the one year statute of limitations. The trial court entered the petitioner’s judgments of conviction on April 6, 1998, and he did not file this petition until March 20, 2002, almost a full four years later.

Tennessee Code Annotated section 40-30-202 sets out when a petitioner may petition for post-conviction relief. Tennessee Code Annotated section 40-30-202 states in part:

(a) Except as provided in subsections (b) and (c), a person in custody under a sentence of a court of this state must petition for post-conviction relief under this part within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of such petition shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity. Time is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file such an action and is a condition upon its exercise. Except as specifically provided in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period.
(b) No court shall have jurisdiction to consider a petition filed after such time unless:
(1) the claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required....
(2) The claim in the petition is based upon new scientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or
(3) The claim asserted in the petition seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has been held subsequently invalid,....

Tenn.Code Ann. § 40-30-202(a) & (b).

In his original petition, the petitioner argued several grounds for post-conviction relief. He argues that his conviction was based on an unlawfully induced guilty plea, on the use of a coerced confession, on the use of evidence gained pursuant to an unconstitutional search and seizure and that he was denied the effective assistance of counsel. In his brief, his appellate counsel admits that he cannot find any legal authority to support the petitioner’s claim of an unlawfully induced guilty plea or the use of a coerced confession to toll the statute of limitations. We agree with the petitioner’s post-conviction counsel that the unlawfully-induced guilty plea and the coerced confession arguments do not fall within the exceptions listed by Tennessee Code Annotated section 40-30-202(b) to toll the statute of limitations.

However, the petitioner’s appellate counsel argues that a hearing should be held on the petitioner’s attorney misrepresentation argument. In his original petition, the petitioner argued that he was denied his fundamental constitutional right to present a defense because of attorney misrepresentation. He stated that his trial counsel “never explained to Petitioner that police wiretapping of his telephone conversation with the alleged victim was in violation of 18 U.S.C. 2511(l)(a) and such cassette tape recording was illegal and inadmissible.” He also stated that his trial counsel did not present a motion to suppress the cassette tape under 18 U.S.C. 2511(1)(a) and 2515. For this reason, the petitioner believes that his trial counsel misled him to plead guilty by telling him that all constitutional challenges to the cassette tape had been presented.

The petitioner relies on Burford v. State, 845 S.W.2d 204 (Tenn.1992), Sands v. State, 903 S.W.2d 297 (Tenn.1995), and Williams v. State, 44 S.W.3d 464 (Tenn.2001), to support his argument. In all three of these cases, our supreme court decided that the statute of limitations for post-conviction relief could be tolled in the factual situations presented. In Burford, the petitioner’s sentence was being enhanced by previous convictions that had subsequently been declared invalid, but not in time for him to meet the statute of limitations for filing his post-conviction petition. Burford, 845 S.W.2d at 208. Our supreme court stated that because the petitioner was in a procedural trap, the petitioner’s due process rights would be violated by not allowing a tolling of the statute of limitations and the filing of a post-conviction petition. Burford, 845 S.W.2d at 208-09.

In Sands v. State, 903 S.W.2d 297 (Tenn.1995), our supreme court analyzed Burford and set out the basic rule derived from Burford and how to go about applying this rule in future cases. The supreme court stated:

[I]t will be helpful to summarize the basic rule to be derived from Burford: that, in certain circumstances, due process prohibits the strict application of the post-conviction statute of limitations to bar a petitioner’s claim when the grounds for relief, whether legal or factual, arise after the “final action of the highest state appellate court to which an appeal is taken” — or, in other words, when the grounds arise after the point at which the limitations period would normally have begun to run. In applying the Burford rule to specific factual situations, courts should utilize a three-step process: (1) determine when the limitations period would normally have begun to run; (2) determine whether grounds for relief actually arose after the limitations period would normally have commenced; and (3) if the grounds are “later-arising,” determine if, under the facts of the case, a strict application of the limitations period would effectively deny the petitioner a reasonable opportunity to present the claim. In making this final determination, courts should carefully weigh the petitioner’s liberty interest in “collaterally attacking constitutional violations occurring during the convictions process,” Burford, 845 S.W.2d at 207, against the State’s interest in preventing the litigation of “stale and fraudulent claims.” Id. at 208.

Sands, 903 S.W.2d at 301. However, after going through this analysis, the supreme court concluded that the statute of limitations had not been tolled in the Sands situation.

In Williams v. State, 44 S.W.3d 464 (Tenn.2001), the supreme court again held that the statute of limitations was tolled by the factual and legal situation of the petitioner. In Williams, there was some dispute over whether the petitioner’s trial counsel continued to represent him and how much the petitioner actually knew about the progress of his appeals. The supreme court stated that the question was whether the petitioner had been “misled to believe that [his trial] counsel was continuing the appeals process....” Id. at 471. The supreme court remanded the case to the trial court so it could determine whether the statute must be tolled due to possible attorney misrepresentation. Id.

We now apply the Burford three-step analysis set out in Sands. The first step is to determine when the statute of limitations would normally begin to ran. The petitioner pled guilty and the judgments were entered on April 6, 1998. The petitioner did not appeal his sentence. Therefore, the statute of limitations of one year began to run on that date.

The next step is to determine whether the grounds for relief actually arose after the commencement of the statute of limitations. The petitioner argues that he was misled by his attorneys to plead guilty because his attorney did not successfully attack the alleged wire tap of a conversation between the victim and the petitioner. He states that his attorney never explained to him that police wire tapping of a telephone conversation is in violation of 18 U.S.C. § 2511(l)(a). 18 U.S.C. § 2511 was not amended between 1996 and 2002. Obviously, nothing arose in 18 U.S.C. § 2511 with regard to the petitioner’s claim after the statute commenced. Therefore, our analysis ends with this second step, and the statute of limitations should not be tolled in the petitioner’s situation.

The petitioner likens his situation to that in Williams where there was a potential misrepresentation by the petitioner’s counsel. However, the facts are much different in this case. In Williams, the petitioner mistakenly believed that his counsel was attending to the petitioner’s appeals; therefore, he did not make any efforts on his own in that regard. In this situation, the petitioner did not appeal, received his file in 2002 and believed that his trial counsel did not represent him properly. Our supreme court stated in Williams:

[W]e are not holding that a petitioner may be excused from filing an untimely post-conviction petition as a result of counsel’s negligence. Instead, the focus here is only upon trial and appellate counsel’s alleged misrepresentation in failing to properly withdraw from representation and in failing to notify the petitioner that no application for permission to appeal would be filed in this Court.

Williams, 44 S.W.3d at 468, n. 7. This appears to limit claims of attorney misrepresentation tolling the statute of limitations to times when counsel has made misrepresentations directly related to filing a defendant’s appeal. That is clearly not the case here.

Therefore, the trial court was correct in summarily dismissing as time-barred the petitioner’s post-conviction claims that did not relate to DNA analysis.

Dismissal of DNA Issues

The petitioner also argues that the trial court erred in dismissing his post-conviction petition with regard to the DNA analysis issues without a hearing. The petitioner contends that it is possible that DNA of a third person, or the petitioner’s ex-wife would also show up on the quilt and/or comforter tested before his plea. There are also statements from the trial court conference that implied the petitioner was told by a fellow inmate that the DNA sample could contain material that only a sample from an African-American would contain.

Tennessee Code Annotated section 40-30-401, et seq. is known as the “Post-Conviction DNA Analysis Act.” Under Tennessee Code Annotated section 40-30-403, a petitioner may file a request for forensic DNA analysis in a petition for post-conviction relief at any time. Tennessee Code Annotated section 40-30-404 goes on to state:

After notice to the prosecution and an opportunity to respond, the court shall order DNA analysis if it finds that:
(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis;
(2) The evidence is still in existence and in such a condition that DNA analysis may be conducted;
(3) The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
(4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Tennessee Code Annotated section 40-30-404 applies when the exclupatory results would not have resulted in a prosecution or conviction. Tennessee Code Annotated section 40-30^05 is similar, but applies when the results would have resulted in a more favorable verdict or sentence. Tennessee Code Annotated section 40-30-405 states:

After notice to the prosecution and an opportunity to respond, the court may order DNA analysis if it finds that:
(1) A reasonable probability exists that analysis of the evidence will produce DNA results which would have rendered the petitioner’s verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction;
(2) The evidence is still in existence and in such a condition that DNA analysis may be conducted;
(3) The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
(4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

The trial court did not hold a hearing, but rather a conference at which the petitioner was present. In his presentation to the trial court, the petitioner’s attorney stated the following:

[I]f you’ll recall, you gave me an opportunity to call and speak with the forensic scientist who performed this original DNA test to determine if the newer testing that’s available today, the mitochondrial testing, might have some sort of an effect as to bolstering some of the Defendant’s claims, or at least investigating some of the Defendant’s claims in his Post Conviction Relief Petition.
If you’ll recall, in that Petition, the Defendant has made one main allegation about the possibility of other people having had sex on this comforter that’s involved. And in talking with Mr_ well, there’s two issues. The Defendant raised another issue with me just now, back in the jail, and I’ll address that, too.
Judge, what really got this going was when the Defendant was in prison, or while he’s been in prison, Dr. Ali was in the same area, and advised the Defendant, after looking at the DNA test, that the Defendant might want to look into this a little more because one of the sights [sic] that they picked here, what came out of_ the sperm that was located on the comforter, it contained material that only a person of the black race could have. It could not be a Caucasian. And that’s what got Mr. Crawford’s curiosity going here, obviously. But I have talked with Mr. Joe Minor, Special Agent Forensic Scientist in Nashville, who ran this original test, and I talked with him _ well, actually, Teresa Smith had talked with him, and then I talked with him personally today, and he said that the sights that they test _they run their DNA tests on have nothing to do with race, period. You couldn’t tell from that whether you’re talking about a black person, white person, Asian, whatever. So that’s ._I am satisfied that I cannot file any type of an Affidavit that would — that would encourage your honor to have testing, further testing for that purpose.
... The second thing that I asked Agent Minor was whether or not the new testing would be able to support my client’s claim that although his DNA showed up there, that it could be because he was having sex at this specific place with someone else other than the victim. And what Agent Minor had to say about that was a little more encouraging initially but I’ll let Your Honor weigh this. Agent Minor told me that the RFLP testing that they used in 1995, when this test was run, was not capable of picking up secondary DNA that had been located at a sight [sic] earlier, as well as the mitochondrial tests that they do today can pick it up. The example that he gave me was if you have a female who has had sexual intercourse on one occasion with one man, and sometime later she had sexual intercourse with _ on another occasion with another man, in 1995 the RFLP method may not have picked up that first man’s DNA; whereas now, in some circumstances, it can.
However, if you take that scenario and instead of looking at a woman’s anatomy for sperm samples and you go outside of her anatomy and you’re looking on a comforter for sperm samples, or in particular for the DNA of another woman, assuming that' — 'that Mr. Crawford had had sex with another woman on this comforter, he said that while it is possible that the new testing might come up with some minute remains of another woman’s DNA, he says the more likely and the expected scenario would be that the numbers would simply increase against Mr. Crawford. Now, that’s what I was told.

When ruling on the petitioner’s post-conviction petition, the trial court stated:

I’m going to dismiss the DNA issue on, at best, it’s speculative, highly speculative whether anything would be gained. Most of the Post Conviction matter is spoken in terms of conclusionary allegations evidently based, in part, under some fellow that’s in the _ hadn’t appeared before the Court, but purports to be a doctor, that says you can tell black from white and race. And just what I’ve got before me, I’m going to dismiss the DNA issue. I just don’t see that there would be a gain indicating he would be able to prove his innocence if I granted it, further DNA testing, or as set out in the statute.

We agree with the trial court’s assessment. Tennessee Code Annotated section 40-30-404 and 405 require a trial court to determine that additional DNA analysis with a favorable result would have altered the prosecution or conviction. The comforter and the quilt were tested in 1995 before the petitioner entered his Alford plea. The testing clearly showed that the petitioner’s DNA was on the comforter or the quilt. We fail to see how additional testing proving that someone else’s sperm was on the comforter or quilt would lessen the potential of his guilt, when his DNA was found in the original tests. In addition, based upon what the petitioner’s counsel stated, it seems unlikely that additional tests would show the petitioner’s sperm was present on the comforter from having sex with his ex-wife. According to what the forensic scientist told the petitioner’s counsel it is unlikely that it would show his ex-wife’s DNA and even more likely that it would show more of his DNA.

These facts do not lead to the reasonable probability required by the statute to allow further DNA testing and possible tolling of the statute of limitations. For this reason, we affirm the decision of the trial court.

      . This type of plea is named after North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in which the United States Supreme Court discussed the right of an accused to plead guilty in his best interest while protesting his actual innocence.

      . Tennessee Code Annotated section 40-30-202(c) discusses the filing of more than one petition for post-conviction relief. This is the petitioner's first petition, therefore, we do not include it in our analysis.