State of Tennessee v. Bobby A. Raymer

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 18, 2012

STATE OF TENNESSEE v. BOBBY A. RAYMER

Appeal from the Criminal Court for Sumner County

No. 2009-CR-869 Dee David Gay, Judge

No. M2011-00995-CCA-R3-CD - Filed October 10, 2012

A Sumner County grand jury indicted appellant, Bobby A. Raymer, for one count of

especially aggravated kidnapping and one count of aggravated robbery, and a jury found him

guilty of both counts. The trial court imposed an effective sentence of thirty years to be

served at 100% release eligibility. On appeal, appellant raises the following issues: (1)

whether the evidence was sufficient to sustain his convictions; (2) whether the trial court

should have merged the two convictions; (3) whether the trial court erred in granting the

State’s motion in limine to exclude evidence of the victim’s prior convictions; and (4)

whether the trial court erred in denying appellant’s motion to use a demonstrative exhibit.

Upon review of the record and the applicable case law, we conclude that the conviction for

especially aggravated kidnapping must be reversed and remanded for a new trial. The

conviction for aggravated robbery is affirmed.

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

in Part, Reversed in Part; Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and

A LAN E. G LENN, JJ., joined.

Heather Haufler, Hendersonville, Tennessee (on appeal); and Randy P. Lucas, Gallatin,

Tennessee (at trial), for the appellant, Bobby A. Raymer.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; Lawrence Ray Whitley, District Attorney General; and Lytle Anthony James,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Procedural History

Appellant was indicted for his involvement in the especially aggravated kidnapping

and aggravated robbery of the victim, Tony Singleton, at the victim’s home on March 21,

2008. The trial began on November 9, 2010, and the jury returned verdicts of guilty of both

counts on November 10, 2010. On December 16, 2010, the trial court entered the judgments

ordering appellant to serve concurrent sentences of twenty years for aggravated robbery to

be served at 35% release eligibility and thirty years for especially aggravated kidnapping to

be served at 100% release eligibility. Appellant filed a timely motion for new trial in which

he raised all of the issues presented in this appeal with the exception of the merger issue.

Although appellant did not include the merger issue in his written motion, the trial court

allowed liberal oral amendment of the motion and heard the issue at the motion for a new

trial. However, appellant failed to reduce the amendment to writing. The trial court denied

appellant’s motion for a new trial on April 4, 2011, and this appeal follows.

II. Facts

The State called David Anthony Owens, Jr., appellant’s co-defendant, as its first

witness. Owens testified that on March 21, 2008, he, appellant, and a woman named Pam

traveled to the victim’s home in Cottontown, Tennessee, where, together with about eight to

ten other people, they were “drinking, partying, smoking pot, [and] hanging out” until late

evening. Before leaving, Owens gave appellant money to purchase marijuana from the

victim. Owens testified that later that night, appellant contacted him and requested that

Owens accompany appellant back to the victim’s house to purchase “another sack of grass.”

On the way to the victim’s house, they snorted cocaine and drank a few beers.

After arriving at the victim’s residence, appellant and the victim began arguing, and

Owens left the room. When he returned to the room, he saw that appellant and the victim

were involved in a physical altercation wherein appellant used a pistol to strike the victim

several times. The victim was attempting to fight back. Owens tried to convince the victim

not to fight back because he feared that appellant would shoot the victim. The victim

continued to try to fight back, causing appellant to strike him “a couple of more times” with

the pistol. Appellant told Owens to “grab [appellant’s] weed.” Ultimately, appellant ordered

Owens to tie up the victim with a wire or a phone charger. With the victim restrained on the

floor, they left with the marijuana to go back to Springfield, Tennessee.

On cross-examination, Owens testified to “drinking and smoking pot and doing

cocaine” on March 21, 2008, and could not remember if he had been up all night or for two

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or three nights without sleep. He remembered leaving the victim’s home and returning later

that night, possibly around 9:00 or 10:00 p.m., to purchase more “grass.” Owens testified

that upon entering the victim’s home, he knew the victim had been drinking excessively

because of his slurred speech and stated that “he was drunker [sic] than we were.” As

appellant and the victim were “doing the dope deal,” Owens went to the bathroom. At that

point, he had not seen a weapon. Owens testified that when he returned to the room, the

altercation between the victim and appellant was in progress, and appellant was holding a

gun. Owens testified he stepped between the two men before appellant told him to get the

“weed,” and the victim was still trying to reach appellant. Owens testified that after he and

appellant restrained the victim, they left with only the pistol and a “sack of grass.” He stated

that he knew the pistol was loaded because appellant “[s]hot it out of the car” on the way

back to Springfield.

The victim testified that on March 21, 2008, he entertained a party of eight people in

his “block” room, which was attached to his mobile home. They were drinking beer,

smoking marijuana, and playing darts. When the party ended around midnight, he fell asleep

on his couch. He was awakened later by someone entering his trailer through the “block”

room, brandishing a pistol, and asking, “Where’s it at?” The victim testified he did not know

what the person was talking about, but he knew the person to be appellant, who was

accompanied by David Owens. The victim further testified that appellant pushed his way

into the house and again asked, “Where’s it at?” He stated that he tried to knock the gun

away from his face, and appellant then struck him in the head with it. The fight continued

with the victim being struck in the head several more times until he threw up his hands and

told appellant, “I give up.” The victim testified he was then “hog-tied” on the kitchen floor

and robbed of his gold necklace, $700 cash, cellular telephone, cigarettes, Zippo Lighter,

pocket knife collection, pizza from the refrigerator, and his marijuana. When appellant and

Owens left his home, the victim freed himself and walked next door to Tiffany and James

Rogers’s house. He discussed the incident with the Rogers, and after about thirty minutes,

he decided to call the police.

On cross-examination, the victim acknowledged that on March 21, 2008, he had been

drinking heavily since noon and smoking marijuana. He recalled having half an ounce of

marijuana but denied selling the appellant any marijuana. He testified that the party ended

around 10:00 p.m. The victim admitted that he had a pistol in his home but stated that a

friend had previously brought the gun to him and it was not the one in appellant’s hand. He

further admitted that he was not supposed to own or possess a pistol. The victim testified

that he was hit on the head several times with the pistol, was “covered in blood,” and left

“hog-tied” on the kitchen floor.

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The victim’s neighbor James Rogers testified that on March 21, 2008, he and his wife,

Tiffany, attended a party at the victim’s house along with appellant, appellant’s girlfriend,

and appellant’s friend. Rogers related that he and his wife left the party to go home around

10:00 p.m. They were later awakened by someone beating on the door. Tiffany Rogers

answered the door and returned to the bedroom “hollering and screaming” that “Tony’s

bloody; he needs help.” When James Rogers got to the door, the victim was standing there

covered in blood and “just hollering, they robbed me; they robbed me and said they’re going

to kill me.” He testified that he and his wife accompanied the victim back to the victim’s

house and found the victim’s house to be “a wreck.” He further related that the victim then

sat down in the “block” room “holding a rag on his head catching the blood.” Rogers

telephoned the police, and his wife picked up the couch cushions and straightened the

furniture in the living room.

James Rogers also testified that there was “always a group of people” at the victim’s

house “everyday,” as well as guns on the premises. He testified about the photograph taken

by his wife two or three days after the victim was robbed. The photograph showed the victim

holding a pistol and two friends holding shotguns. Rogers noted the victim still had a

bandage on his forehead in the photograph.

Tiffany Rogers testified that in March 2008 she attended a party with her husband,

James Rogers, at the victim’s house, which was next door to their home. She related that her

cousin, Pamela Raymer, arrived at the party with appellant and Owens. Mrs. Rogers stated

that “[they] was [sic] just drinking, playing darts, and everything, hanging out, probably a

good five or six hours.” She further recalled that after leaving the party, there was a knock

on her door around midnight. When she opened the door, the victim stumbled in, bleeding

from a gash on his forehead, and said that “he had just been robbed by these two guys that

had come down with my cousin earlier.” She and her husband walked with the victim to his

trailer and observed “everything was just turned over and stuff.” She began helping him

straighten his furniture and belongings. Mrs. Rogers testified there were little blood spots

on the floor that she cleaned up. She related that she stayed there until the police arrived, and

they told her to go home.

Upon cross-examination, Mrs. Rogers testified she cleaned up blood spots on the floor

around the victim’s coffee table in the living room only. She stated she did not clean up

anything in the kitchen. She further testified that the victim furnished all the marijuana and

beer for the party and stated, “I don’t know of Tony to sell. I know him to smoke.”

Sumner County Sheriff’s Deputy Shaun Lester testified from his report that he

responded to the scene at 1:21 a.m. He first made contact with a neighbor, James Rogers,

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in the victim’s front yard. His report noted that the victim had a small laceration over the left

side of his head, and there appeared to have been a struggle inside the living room.

Detective Tim Bailey of the Sumner County Sheriff’s Department testified that he

arrived on the scene after the deputies and started interviewing the victim. He recalled that

the victim knew the perpetrators, so it was “a proper identification and apprehension situation

in my eyes.” He testified that he put together a photographic lineup and interviewed

witnesses and relatives of witnesses in an attempt to locate the suspects. Detective Bailey

noted that Owens was apprehended within a week, but it was more than a year before

appellant surrendered himself to the Robertson County Sheriff’s Office.

On cross-examination, Detective Bailey testified that he knew someone had cleaned

up a portion of the crime scene, and he found very little blood present. On redirect, Detective

Bailey confirmed that pictures were taken of the victim’s injuries about five days after the

incident and showed latter stages of bruising and some contusions centered around the left

portion of the victim’s orbital and temple area near his ear.

David Anthony Owens, recalled by defense counsel, testified he left the victim tied

up on the floor of the living room, not the kitchen. However, he acknowledged that “it’s just

one big room,” but he would concede it was the living room.

III. Analysis

A. Whether the convictions for especially aggravated kidnapping

and aggravated robbery should be merged?

As noted above, appellant filed a timely motion for new trial but did not include the

merger issue in his original motion. The trial court allowed an oral amendment of the motion

on the day of the hearing and allowed appellant to present the issue. However, appellant

failed to reduce the amendment to writing. This court has repeatedly held that a defendant’s

failure to reduce an oral amendment to a motion for new trial to writing within thirty days

of the entry of the sentencing order results in waiver of the issue. State v. Ronald Lee

Stewart, No. M2008-00337-CCA-R3-CD, 2010 WL 2025407, at *4 (Tenn. Crim. App. May

21, 2010); see State v. Mark C. Noles, No. M2006-01534-CCA-R3-CD, 2007 WL 3274422,

at *11 (Tenn. Crim. App. Nov. 6, 2007), perm. app. denied (Tenn. Apr. 7, 2008); State v.

Ronnie Watson, No. W2001-03084-CCA-R3-CD, 2002 WL 31258011, at *1-2 (Tenn. Crim.

App. Sept. 16, 2002); State v. Christopher D. Lanier, No. W2001-00379-CCA-R3-CD, 2002

WL 1482712, at *4 (Tenn. Crim. App. Feb. 1, 2002). This court could certainly conclude

that appellant’s issue of whether the convictions for especially aggravated kidnapping and

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aggravated robbery should be merged is waived. See Tenn. R. App. P. 3(e); Tenn. R. Crim.

P. 33(b).

Waiver notwithstanding,

[w]hen necessary to do substantial justice, an appellate court may consider an

error that has affected the substantial rights of a party at any time, even though

the error was not raised in the motion for a new trial or assigned as error on

appeal.

Tenn. R. App. P. 36(b). This discretionary consideration of waived issues is often referred

to as “plain error” review. See Grindstaff v. State, 297 S.W.3d 208, 219 n.12 (Tenn. 2009).

Our supreme court formally adopted this court’s Adkisson test for reviewing claims of plain

error:

The Court of Criminal Appeals has developed five factors to consider when

deciding whether an error constitutes “plain error” . . . : “(a) the record must

clearly establish what occurred in the trial court; (b) a clear and unequivocal

rule of law must have been breached; (c) a substantial right of the accused

must have been adversely affected; (d) the accused did not waive the issue for

tactical reasons; and (e) consideration of the error is ‘necessary to do

substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994)). The “‘plain error’ must [have been] of such a great

magnitude that it probably changed the outcome of the trial.” Smith, 24 S.W.3d at 282

(quoting Adkisson, 899 S.W.2d at 642) (alteration in original). All five factors must be

established by the record before a court will find plain error. Id. at 282. Complete

consideration of all the factors is not necessary when clearly at least one of the factors cannot

be established by the record. Id. Appellant bears the burden of demonstrating to this court

that plain error renders the convictions infirm. State v. Gomez, 163 S.W.3d 632, 646 (Tenn.

2005). In this case, we conclude that “[i]n light of the lengthy sentence [appellant] received

as a result of being convicted of both [especially] aggravated kidnapping and [aggravated

robbery], . . . review of the issue is ‘necessary to do substantial justice.’” State v. Iroko

Phillips, No. W2010-01605-CCA-R3-CD, 2011 WL 2714105, at *7 (Tenn. Crim. App. July

13, 2011); see Tenn. R. App. P. 36(b). Accordingly, we elect to determine whether plain error

is present.

Having concluded that the merger issue is subject to a plain error analysis on appeal,

we now address whether the trial court should have merged the convictions for especially

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aggravated kidnapping and aggravated robbery. Tennessee Code Annotated defines

especially aggravated kidnapping, as charged in this case, as the following:

(a) Especially aggravated kidnapping is false imprisonment, as defined in

§ 39-13-302:

(1) Accomplished with a deadly weapon or by display of any

article used or fashioned to lead the victim to reasonably

believe it to be a deadly weapon.

Tenn. Code Ann. § 39-13-305(a)(1) (2006). Further, false imprisonment is defined as the

following: “A person commits the offense of false imprisonment who knowingly removes

or confines another unlawfully so as to interfere substantially with the other’s liberty.” Id.

§ 39-13-302(a) (2006). Appellant argues that the only restraint that he used was that

necessary to complete the offense of aggravated robbery. Relying on State v. Anthony, 817

S.W.2d 299 (Tenn. 1991), and its line of cases, appellant likewise argues that there is no

proof of additional confinement of the victim beyond that necessary to accomplish the

robbery. The State responds that the movement and confinement of the victim was beyond

that necessary to commit the robbery.

Our supreme court, in State v. Anthony, examined “the propriety of a kidnapping

conviction where detention of the victim is merely incidental to the commission of another

felony, such as robbery or rape.” Id. at 300. The Anthony court held that the proper test to

decide whether the detention was incidental was “whether the confinement, movement, or

detention is essentially incidental to the accompanying felony . . . or whether it is significant

enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to

support such a conviction.” Id. at 306.

Later, in State v. Dixon, the court replaced the “essentially incidental” analysis with

a new two-part test:

We must now decide whether the movement or confinement was beyond that

necessary to consummate the act of [the other offense]. If so, the next inquiry

is whether the additional movement or confinement: (1) prevented the victim

from summoning help; (2) lessened the defendant’s risk of detection; or (3)

created a significant danger or increased the victim’s risk of harm.

State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997) (internal citation omitted). An affirmative

response to the second part of the test means that “[a] separate conviction for kidnapping

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does not violate due process.” State v. Richardson, 251 S.W.3d 438, 443 (Tenn. 2008)

(citing Dixon, 957 S.W.2d at 535).

In State v. Richardson, the Tennessee Supreme Court clarified the status of the law

on this issue:

The Dixon two-part test fully replaces the Anthony “essentially incidental”

analysis. As we previously have observed, the Dixon test “provides the

structure necessary for applying the principles announced in Anthony.” State

v. Fuller, 172 S.W.3d 533, 537 (Tenn. 2005). Although we adhere to the due

process principles adopted in Anthony, we now make clear that the Anthony

analysis should not be used in conjunction with the Dixon two-part test. The

Dixon test should be used exclusively in all future inquiries.

Richardson, 251 S.W.3d at 443 (internal footnotes omitted).

The Tennessee Supreme Court recently overruled Anthony, Dixon, “and the entire line

of cases including a separate due process analysis in appellate review.” State v. White, 362

S.W.3d 559, 578 (Tenn. 2012). The court held that

the legislature did not intend for the kidnapping statutes to apply to the

removal or confinement of a victim that is essentially incidental to an

accompanying felony, such as rape or robbery. This inquiry, however, is a

question for the jury after appropriate instructions, which appellate courts

review under the sufficiency of the evidence standard as the due process

safeguard.

Id. at 562. The court concluded that our kidnapping offenses “evince a legislative intent to

punish as kidnapping only those instances in which the removal or confinement has criminal

significance above and beyond that necessary to consummate some underlying offense, such

as robbery or rape.” Id. at 577. Our supreme court held that “trial courts must ensure that

juries return kidnapping convictions only in those instances in which the victim’s removal

or confinement exceeds that which is necessary to accomplish the accompanying felony.”

Id. at 578. Our supreme court’s ruling in White emphasized that it “does not articulate a new

rule of constitutional law or retroactive application.” Id. However, based on the facts of that

case, the supreme court held that the “proof could be interpreted in different ways and,

therefore, the determination of whether the removal or confinement of [the victim]

constituted a substantial interference with her liberty was a question of fact for the jury.” Id.

at 579. According to the supreme court, an instruction requiring a “determination of whether

the removal or confinement is, in essence, incidental to the accompanying felony or, in the

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alternative, is significant enough, standing alone, to support a conviction” is needed to ensure

constitutional due process is given to defendants charged with kidnapping and an

accompanying felony. Id. at 578.

The supreme court reviewed the jury charge from the trial and stated that while the

instructions tracked statutory language, “they did not define the key element - the substantial

interference with the victim’s liberty - as requiring a finding by the jury that the victim’s

removal or confinement was not essentially incidental to the accompanying felony offense.”

Id. at 580. The court held that “[b]ecause the jury was not properly instructed on the question

of whether the victim’s removal or confinement was essentially incidental to an

accompanying felony, the Defendant is entitled to a new trial on the especially aggravated

kidnapping charge.” Id.

The proof at trial in appellant’s case in support of the especially aggravated

kidnapping conviction showed that appellant and his co-defendant unlawfully entered the

victim’s home; appellant struck him multiple times with a pistol; the victim fought back; the

co-defendant “hog-tied” the victim at appellant’s behest; and the men robbed the victim.

This proof is inclined to at least two interpretations: (1) that appellant restrained the victim

to prevent him from further fighting back, therefore the restraint was incidental to the

aggravated robbery, or (2) that appellant or his co-defendant restrained the victim to prevent

detection, to enable their escape, to prevent the victim from summoning help, or for some

other reason not incidental to the aggravated robbery. Therefore, whether the confinement

of the victim constituted a substantial interference of the victim’s liberty that was to a greater

degree than necessary to commit aggravated robbery was a question of fact for the jury to

resolve. See id. at 578; State v. Michael L. Powell, No. E2011-00155-CCA-R3-CD, 2012

WL 1655279, at *9 (Tenn. Crim. App. May 10, 2012).

As noted above, the trial court’s instructions to the jury on especially aggravated

kidnapping tracked the statutory language. However, they did not require a finding by the

jury that the victim’s confinement constituted a substantial interference with the victim’s

liberty that was not essentially incidental to the accompanying felony offense of aggravated

robbery. We conclude that the jury was improperly instructed because it was not instructed

to determine whether the victim’s confinement was essentially incidental to the

accompanying felony.1

We must now consider whether the erroneous jury instruction rises to the level of

plain error that requires relief. The record clearly establishes what happened at trial. The

1

The trial judge properly instructed the jury pursuant to the Tennessee Pattern Jury Instructions that

were in effect at the time of trial.

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jury returned verdicts of guilty of especially aggravated kidnapping and aggravated robbery.

Appellant filed a timely motion for new trial and raised the merger issue in a subsequent oral

amendment thereto. The trial court allowed the amendment, heard appellant’s arguments,

and ruled adversely to appellant on all issues. Although appellant raised this issue on appeal,

he unsuccessfully preserved the issue for our review by failing to file the required written

amendment to the motion for a new trial. A clear and unequivocal rule of law, that of due

process, affected one of appellant’s substantial rights. See, e.g., White, 362 S.W.3d at 578

(holding that to ensure constitutional due process, a jury must determine whether removal or

confinement is incidental to the accompanying felony or is significant enough to support a

conviction of kidnapping). Appellant did not waive review of the issue for tactical reasons;

to the contrary, he attempted, albeit unsuccessfully, to preserve the issue for appellate review.

Finally, the error in this case was of such magnitude that it may have changed the outcome

of the trial. Appellant was sentenced to twenty years at 35% release eligibility for aggravated

robbery and thirty years at 100% for especially aggravated kidnapping. Because the evidence

underlying the conviction for especially aggravated kidnapping was subject to two distinct

interpretations, an error in the jury instructions could have changed the outcome of the trial.

We conclude that the doctrine of plain error requires us to reverse appellant’s conviction for

especially aggravated kidnapping and remand to the trial court for a new trial on that offense.

To provide guidance to trial courts, the supreme court in White set out the following

instruction to be followed by the trial courts until the Committee on Criminal Pattern Jury

Instructions adopts an instruction in response to the case:

To establish whether the defendant’s removal or confinement of the

victim constituted a substantial interference with his or her liberty, the State

must prove that the removal or confinement was to a greater degree than that

necessary to commit the offense of [insert offense], which is the other offense

charged in this case. In making this determination, you may consider all the

relevant facts and circumstances of this case, including, but not limited to, the

following factors:

• the nature and duration of the victim’s removal or

confinement by the defendant;

• whether the removal or confinement occurred during the

commission of separate offenses;

• whether the interference with the victim’s liberty was

inherent in the nature of the separate offense;

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• whether the removal or confinement prevented the victim

from summoning assistance, although the defendant need

not have succeeded in preventing the victim from doing

so;

• whether the removal or confinement prevented the victim

from summoning assistance, although the defendant need

not have succeeded in this objective; and

• whether the removal or confinement created a significant

danger or increased the victim’s risk of harm

independent of that posed by the separate offense.

362 S.W.3d at 580-81. Therefore, on remand, the trial court should instruct the jury

consistently with the White opinion during appellant’s new trial on the especially aggravated

kidnapping conviction, unless a pattern jury instruction is implemented before such time.

Accordingly, we reverse appellant’s conviction for especially aggravated kidnapping and

remand for a new trial on that offense.

B. Sufficiency of the Evidence for Aggravated Robbery

The standard for appellate review of a claim of insufficiency of the State’s evidence

is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

must demonstrate that no reasonable trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn therefrom.”

Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010));

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and the

weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

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1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729; State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v.

Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

Because a conviction may not be based solely upon the uncorroborated testimony of

an accomplice, it is necessary to ascertain the sufficiency of the evidence in terms of whether

the State presented corroboration of any accomplice’s testimony. “[A] conviction may not

be based solely upon the uncorroborated testimony of an accomplice to the offense.” State

v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001) (citing State v. Stout, 46 S.W.3d 689 (Tenn.

2001)). Our supreme court has explained:

There must be some fact testified to, entirely independent of the accomplice’s

testimony, which, taken by itself, leads to the inference, not only that a crime

has been committed, but also that the defendant is implicated in it; and this

independent corroborative testimony must also include some fact establishing

the defendant’s identity. This corroborative evidence may be direct or entirely

circumstantial, and it need not be adequate, in and of itself, to support a

conviction; it is sufficient to meet the requirements of the rule if it fairly and

legitimately tends to connect the defendant with the commission of the crime

charged. It is not necessary that the corroboration extend to every part of the

accomplice’s evidence.

Bane, 57 S.W.3d at 419.

This court reiterated, “An accomplice is defined as one who ‘knowingly, voluntarily,

and with common intent participates with the principal offender in the commission of the

crime alleged in the charging instrument.’” State v. Tyree Robinson, No. W2008-01001-

CCA-R3-CD, 2009 WL 1741401, at *7 (Tenn. Crim. App. June 16, 2009) (quoting State v.

Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997)), perm. app. denied (Tenn. Nov. 23,

2009). The pivotal inquiry into whether a witness is an accomplice rests upon “whether the

witness could be indicted for the same offense as the defendant.” Id. (citing State v. Green,

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915 S.W.2d 827, 831 (Tenn. Crim. App. 1995); State v. Lawson, 794 S.W.2d 363, 369 (Tenn.

Crim. App. 1990)).

Appellant’s co-defendant/accomplice testified at appellant’s trial, implicating

appellant in the aggravated robbery of the victim and both of them in the especially

aggravated kidnapping of the victim. The accomplice’s testimony was corroborated by the

victim, and the corroboration included some facts establishing the perpetrator as appellant.

Viewing the evidence in the light most favorable to the State, the jury considered evidence

that appellant and Owens attended a gathering at the victim’s residence earlier on the evening

of the attack. Some time later, appellant asked co-defendant to drive him back to the victim’s

residence so that he could purchase more marijuana. Shortly after their arrival, appellant and

the victim became engaged in an altercation. Two witnesses testified that appellant struck

the victim multiple times with a pistol, that Owens bound the victim at appellant’s urging,

and that the victim remained bound when appellant and Owens left the victim’s residence.

The victim’s next door neighbors testified about his injuries and the condition of his

residence following the altercation. The victim offered testimony concerning the items that

were stolen.

Appellant points this court to several inconsistencies in the testimony of witnesses at

trial. However, the jury is the finder of fact in a jury trial and resolves all questions involving

the credibility of witnesses, the weight and value to be given the evidence, and factual

disputes raised by the evidence. Bland, 958 S.W.2d at 659; Pruett, 788 S.W.2d at 561. The

jury credited the State’s evidence in this case by returning a verdict of guilty on the charge

of aggravated robbery. We find that the convicting evidence is sufficient to sustain the

conviction. Appellant is not entitled to relief on this issue.

C. Trial Court’s Granting of State’s Motion in Limine

Appellant argues that the trial court erred in granting the State’s motion in limine to

prohibit the defense from introducing evidence of the victim’s criminal record. He asserts

that the stringent requirements of Rule 609 of the Tennessee Rules of Evidence do not apply

to witnesses other than the accused in a criminal prosecution. We review a trial court’s

ruling on the admissibility of impeachment evidence for abuse of discretion. See State v.

Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).

The victim in this case had garnered the following criminal history:

(1) Misdemeanor assault, 1984;

(2) Misdemeanor resisting arrest, 1989;

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(3) Felony drug conviction, 1995;

(4) Misdemeanor drug conviction, 2005; and

(5) Misdemeanor drug conviction, 2010.

The record established that the victim had four misdemeanor convictions. He also had one

felony conviction that was more than ten years old.

Rule 609 of the Tennessee Rules of Evidence provides that a witness’s credibility can

be attacked with evidence that he or she has been convicted of a crime under certain specific

conditions. Among the conditions are that the crime must be punishable by death or more

than one year in prison or must have been a crime involving dishonesty or false statement.

Tenn. R. Evid. 609(a)(2). The Advisory Commission Comment makes clear that only felony

convictions or misdemeanor convictions involving dishonesty or false statement “are

competent for impeachment.” Tenn. R. Evid. 609, Advisory Comm’n Cmt. An additional

criteria for admissibility is that the conviction must be less than ten years old, calculated from

the date of conviction or release from confinement and commencement of the action or

prosecution.2 Tenn. R. Evid. 609(b). On its face, the victim’s criminal record falls outside

of the parameters of competent impeachment evidence established by the rules of evidence.

The misdemeanor convictions for assault or drug possession do not involve dishonesty or

false statement. See, e.g., State v. Walker, 29 S.W.3d 885, 991 (Tenn. Crim. App. 1999)

(holding that drug crimes, whether for possession or sale, do not generally fall within the

category of crimes involving dishonesty or false statement as contemplated by Rule 609).

The felony conviction was more than ten years old at the time of trial and did not meet any

exceptions for admissibility under Rule 609(b) of the Tennessee Rules of Evidence.

Appellant advances an alternative argument that the victim’s prior convictions, one

stale felony and four misdemeanors that do not involve dishonesty, should have been

admitted pursuant to the balancing test found in Rule 609(b) of the Tennessee Rules of

Evidence. Rule 609(b) addresses the admissibility of stale convictions, i.e., convictions more

than ten years old. Tenn. R. Evid. 609(b). The rule permits admissibility of stale convictions

if the proponent gives notice of intent to use the convictions, the adverse party has an

opportunity to contest the use of the evidence, and “the court determines in the interests of

justice that the probative value of the conviction, supported by specific facts and

circumstances, substantially outweighs its prejudicial effect.” Tenn. R. Evid. 609(b).

2

Convictions more than ten years old may be admissible if certain conditions are met.

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We first note that the issue was brought before the trial court on the State’s motion in

limine and was heard on the morning of the trial. Procedurally, appellant has failed to

comply with the requirements of Rule 609(b) by failing to give notice of intent to use the

convictions as impeachment evidence. In granting the State’s motion in limine, the trial court

ruled that “[d]rug use . . . is going to come out.” The court recognized that the facts of the

case involved buying and selling of drugs and did not prohibit introduction of that evidence.

The court simply ruled that it would apply Rule 609 to the admissibility of evidence of the

victim’s convictions for impeachment purposes. At trial, appellant asked the victim, “Are

you denying that you sold marijuana to people,” and the victim testified, “No, sir.” The jury

had before it evidence of the victim’s drug dealing. The trial court did not abuse its

discretion in excluding the victim’s stale conviction from evidence, and appellant is not

entitled to relief on this issue.

D. Whether the trial court erred in denying appellant’s motion

to use a demonstrative exhibit?

Appellant’s final lamentation is that the trial court erred in denying his motion to use

a demonstrative exhibit, specifically a 1860 Colt Navy .44 caliber pistol. The weapon

appellant wished to use was not the weapon used in the offenses. At trial, appellant wanted

the jury, some of whom he opined may not be familiar with guns, to view the weapon, hold

the weapon, and ultimately conclude that being “pistol-whipped” would have resulted in

more serious injuries than those depicted in the photographs of the victim.

The determination of whether evidence is admissible at trial is a matter left to the

sound discretion of the trial court and will not be reversed absent an abuse of that discretion.

State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002); State v. McLeod, 937 S.W.2d 867, 871

(Tenn. 1996). “Relevant evidence” is “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. All relevant evidence

is admissible unless specifically excepted by constitution, statute, rules of evidence, or rules

of general application. Tenn. R. Evid. 402. One such exception sets forth that relevant

evidence may be excluded “if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.

403.

The weapon used in the offenses in this case was not recovered. The gun proffered

as demonstrative evidence was likely, by appellant’s admission, heavier in weight and longer

in the barrel than the weapon used in the commission of the offenses. Appellant asked to use

the weapon to demonstrate for the jury that the victim would have sustained greater injuries

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than those depicted in the photographs if he were, in fact, struck with a pistol. Thus,

appellant sought to impeach the victim by contradicting his testimony with the demonstrative

evidence. The trial court ruled, “[T]his is going to be so prejudicial because it’s heavier, it’s

bigger, and I don’t think it’s a fair proposition, and I think that this weapon should not be

placed in demonstrative evidence . . . .”

The trial court properly ruled that such a comparison would be prejudicial. We agree

that the probative value of the demonstrative evidence, if any, was substantially outweighed

by the danger of unfair prejudice and misleading the jury. Without formally doing so, the

trial court took judicial notice that weapons range in length and weight. This court takes

judicial notice that weapons, including pistols, are manufactured in differing lengths and

weights. Smith v. State, 607 S.W.2d 906, 907 (Tenn. 1980) (noting that an appellate court

may take judicial notice of facts which the trial court could have noticed). Judicial notice is

the process by which a court accepts facts as true without proof because knowledge of those

facts is so notorious that everyone is assumed to possess it. Id. (citations omitted). Use of

the proffered evidence for the purpose of establishing inconsistencies in the victim’s recount

of the events in question was not proper because of the differing sizes and weights of

weapons. No evidence pertaining to the barrel length or the weight of the gun involved in

the offenses was introduced. Had the trial court allowed the demonstrative evidence for

comparative purposes, it would have risked misleading the jury. The trial court did not abuse

its discretion, and appellant is not entitled to relief on this issue.

CONCLUSION

We reverse and remand appellant’s conviction for especially aggravated kidnapping.

We affirm the remaining conviction for aggravated robbery.

_________________________________

ROGER A. PAGE, JUDGE

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