State of Tennessee v. Darryl Keith Robinson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 1, 2009 Session

STATE OF TENNESSEE v. DARRYL KEITH ROBINSON

Appeal from the Criminal Court for Shelby County

No. 05-05746 Joseph B. Dailey, Judge

No. W2008-02069-CCA-R3-CD - Filed February 3, 2010

The Defendant, Darryl Keith Robinson, was indicted for one count of felony murder and one

count of premeditated first degree murder. See Tenn. Code Ann. § 39-13-202. He was also

charged with one count of theft of property valued at greater than $10,000 but less than

$60,000, a Class C felony. See Tenn. Code Ann. § 39-14-105(4). Following a jury trial, he

was found guilty as charged of theft, and convicted of one count of second degree murder,

a Class A felony. See Tenn. Code Ann. § 39-13-210(c). He was sentenced as a Range I,

standard offender to consecutive sentences of twenty-five years for second degree murder

and six years for theft of property, for a total effective sentence of thirty-one years in the

Department of Correction. In this direct appeal, he contends that:(1) the trial court erred by

excluding evidence that the victim filed for orders of protection against another individual;

(2) the trial court erred by allowing testimony that the Defendant had a criminal history; (3)

the trial court erred by allowing testimony regarding a conversation between the victim and

the Defendant; (4) the State presented evidence insufficient to convict him of either second

degree murder or theft of property valued at greater than $10,000 but less than $60,000; and

(5) the trial court erred in setting the length of the Defendant’s sentence. After our review,

we affirm the Defendant’s conviction for second degree murder. We vacate the twenty-five

year sentence imposed for the second degree murder conviction. We modify the conviction

for Class C felony theft to a conviction for Class A misdemeanor theft. We remand this case

to the trial court for resentencing.

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

Part; Reversed in Part; Remanded

D AVID H. W ELLES, J., delivered the opinion of the court, in which A LAN E. G LENN and

C AMILLE R. M CM ULLEN, JJ., joined.

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, (on appeal), and Anthony

Helm, Memphis, Tennessee, (at trial) for the appellant, Darryl Keith Robinson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; William L. Gibbons, District Attorney General; Alanda Dwyer and Amy Weirich,

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

OPINION

Factual Background

At trial, the State presented the testimony of Tiffiney Oliver, a friend of the victim,

Giovanna Egan. Ms. Oliver testified that she began working as a commercial resale

representative at ADT Security Services in Memphis in February 2004. She met and

befriended the victim, who held the same job. The two remained friends until the time of the

victim’s death in October 2004.

Ms. Oliver testified that the victim had been romantically involved with the Defendant

when Ms. Oliver met her; the victim introduced her to the Defendant in February 2004. Until

September 2004, the victim and the Defendant had lived together; their romantic relationship

ended during that month, however, at which time the victim moved into a house of her own.

Ms. Oliver never saw the Defendant at that house.

At some time in September, after the romantic relationship between the victim and the

Defendant had ended, Ms. Oliver witnessed the victim receive a phone call from the

Defendant. Both the victim and Ms. Oliver were at the victim’s desk at ADT. The victim’s

cell phone rang; when she answered it, Ms. Oliver heard the Defendant’s voice. He spoke

very loudly and angrily. She heard him say, “Why did you take the fucking car?” He also

said “there would be hell to pay if [the victim] didn’t get the fucking car back.” The

Defendant continued to yell for three or four minutes; Ms. Oliver then took the phone away

from the victim and hung up because coworkers were beginning to stare at them. The victim

never raised her voice to the Defendant during the phone call.

The victim explained to Ms. Oliver that she and the Defendant owned a Toyota Tercel

that she had purchased from a family member with the understanding that the Defendant

would fix it. The victim had taken the car that morning for reasons that were not made clear

at trial.

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Soon after the end of the phone call, Ms. Oliver and the victim left ADT to go to a

barber shop. They arrived about ten minutes after the call concluded. As they entered the

barber shop, the Defendant again called the victim’s cell; Ms. Oliver saw his name appear

on the cell’s screen, and she could again hear him during the subsequent conversation. The

Defendant again yelled at the victim about the Tercel. The victim yelled back. After a few

moments, Ms. Oliver heard the Defendant say, “If you don’t get the fucking car back, I’m

going to kill you. That’s my [fucking] car, and you had no right messing with my car.” Ms.

Oliver said that the Defendant got the car back a few days later, after the victim arranged to

have it towed to a body shop; Ms. Oliver heard the Defendant thank her for returning the car.

On Saturday, October 16, 2004, Ms. Oliver hosted a dinner party at her house. She

invited the victim, who said she planned to attend. The victim also said she would bring

some food. Ms. Oliver asked the victim to come over at about 7:00 p.m., but she never

arrived. Ms. Oliver called the victim a few times between 7:00 and 8:00 p.m., but received

no answer. She began to get worried and called Daniel Moore, a friend of hers and the

victim’s. She asked Mr. Moore, who lived close to the victim, to drive by the victim’s house

and see if she was there.

Mr. Moore, a former police officer, testified that he met the victim in October 1997,

when he had hired her to work at Harrah’s Casino. He also confirmed that he and the victim

had been romantically involved for a few months between 2000 and 2001. Their relationship

ended largely because Mr. Moore refused to leave his wife; he and the victim had remained

friends, however. Mr. Moore received Ms. Oliver’s call at about 8:00 p.m. on October 16,

2004, at which time she asked him to drive by the victim’s house.

Mr. Moore noted at trial that he had spoken to the victim that morning, as well as the

night before. That morning, she had told Mr. Moore she was alone. Because Mr. Moore

lived about two miles from the victim, he was able to reach her house at about 8:15 p.m. He

noticed that her garage door was down and that lights were on in the house, including the one

in her bedroom. Mr. Moore thought this was strange because the victim was a very private

person. He had visited the victim’s new house once and believed that she lived there alone.

Mr. Moore assumed that the victim had company and would not be attending Ms.

Oliver’s party. He called Ms. Oliver and told her what he had seen. He then drove to Ms.

Oliver’s house and confirmed that the victim’s vehicle was not there. Although Ms. Oliver

had also invited him to her party, he decided to go home.

On cross-examination, Mr. Moore noted that he had given the victim “several

thousand dollars” between 2000 and 2002 to pay bills and various expenses. He did not

expect to be paid back, and did not give the victim money in order to help purchase her new

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house. He generally saw the victim about once a month, usually meeting her for lunch. He

also said that he was not jealous of the victim, but that he was worried about her welfare.

The victim’s son, Christopher Bidal, testified that he last saw the victim on October

14, 2004, when she accompanied him to a car dealership to help him buy a 2004 Mercury

Sable. Mr. Bidal confirmed that the victim lived alone in her new house and that she had

lived there for about a month at the time of her death. She had previously lived with the

Defendant in a different house. The victim owned a 2002 Ford Escape.

On the morning of October 17, 2004, Mr. Bidal received a call from Ms. Oliver, who

asked him to go to the victim’s residence and check on her. Ms. Oliver also said that the

victim had not been answering her phone. Mr. Bidal, who had one of the victim’s garage

door openers in his possession, went to the victim’s house sometime between 11:00 a.m and

noon. Upon opening the victim’s garage, he saw that her car was missing. He also saw a

smeared trail of blood between the middle of the garage and a door leading into the house.

Mr. Bidal went outside, called 911, and waited for police to arrive.

Officer Terry Thompson of the Memphis Police Department (“MPD”) was one of the

uniformed patrol officers to be dispatched to the victim’s house after Mr. Bidal’s 911 call.

Upon arrival, he entered the garage, saw blood on the garage floor, and entered the house

through the door from which the blood trail originated. Officer Thompson saw more blood

inside the hallway. He entered the house and quickly checked for any occupants; finding

none, he left and secured the house. He noted that he saw no signs of forced entry, but that

the back door was slightly open.

Mr. Bidal called Ms. Oliver and told her about his findings at the victim’s house; she

then called Mr. Moore and informed him. Both came to the crime scene. Mr. Moore

testified at trial that he spoke to police and agreed to provide them with his contact

information and a DNA sample. He did so because he wanted to rule himself out as a

suspect. Mr. Moore offered no further details at trial because the trial court had, at a pre-trial

hearing, granted the State’s request to exclude as irrelevant the fact that the victim had twice

filed petitions for orders of protection against Mr. Moore in June 2003.

Cerbinia Braswell, at the time a forensic scientist with the Shelby County Medical

Examiner, was called to the victim’s house on October 17 to assist law enforcement by

conducting a bloodstain pattern analysis. At the time of trial, however, she worked as a

Special Agent forensic scientist with the Tennessee Bureau of Investigation (“TBI”). Her

examination of the victim’s house revealed blood stains in the garage and in the hallway

connecting the inside of the house to the garage. She also found a small amount of blood in

the kitchen at the end of the connecting hall. She found no blood in the victim’s bedroom.

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Agent Braswell noted that bloodstains appeared on the walls of the connecting

hallway, as well as on the doors to the bedroom, attic, and garage lining the hallway. All

three doors were closed. The blood “flight pattern” in the hallway was consistent with a

bleeding victim bumping into the walls and doorframes while moving down the hall. Agent

Braswell noted that the blood on the walls and doors was thicker than that on the floor,

indicating that someone had attempted to clean up the blood on the floor. The blood on the

floor also contained a shoe print. The blood in the garage formed a large smear reaching

from the door into the house to the center of the garage. Agent Braswell said that the smear

was consistent with a horizontal human body being pulled across the floor. She also said that

she noticed, upon inspecting the garage, that a purse was hanging from the handle of the door

into the house.

Officer Daniel Jacobs, a member of the MPD crime scene unit, introduced numerous

photographs of the victim’s house and noted certain items of evidence collected from the

scene, including: an answering machine found in the bedroom; an empty can of Diet Pepsi

found on a counter in the garage; an ashtray and cigarette butt found in the kitchen; and a bag

containing three DVDs and a receipt. Officer Jacobs also collected four blood samples: one

from the wall of the hallway, one from the attic door in the hallway, one from the hallway

floor, and a control sample. Finally, he unhinged the door from the hallway into the garage

and collected it as evidence.

After establishing the events that led to his 911 call, Mr. Bidal identified a number of

photographs of the victim’s home. He noted that crime scene photos of the hallway showed

that a carpet runner usually present near the door to the garage was missing. Drawers in the

victim’s bedroom had been pulled out and clothing was strewn about the floor; Mr. Bidal

said that the victim kept the bedroom very clean. He also testified that a silver-handled knife

was missing from one of the kitchen drawers.

Sergeant T.J. Helldorfer of the MPD’s homicide division also investigated the

victim’s house on October 17. He testified that he arrived about 3:20 p.m. He opined that

the search of the victim’s bedroom looked “staged,” as there was no indication anything had

been taken from the house. He acknowledged on cross-examination, however, that

something could have been stolen without his knowledge. He also found no evidence of

forced entry. Sergeant Helldorfer radioed a description of the victim’s missing car to the

Memphis police force and proceeded to interview other residents of the victim’s

neighborhood.

Shortly thereafter, Sgt. Helldorfer received information that the Defendant might be

a suspect. He was told to check the house at which both the victim and Defendant used to

live; he did not find the Defendant there, however. He also spoke to the Defendant’s family,

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who were cooperative and concerned that the missing Defendant might also have been a

victim. He told the Defendant’s mother to have the Defendant make contact with the police

if she saw him. To Sgt. Helldorfer’s knowledge, the Defendant never did so. At some point,

Sgt. Helldorfer collected a DNA sample from the Defendant’s mother because he could not

locate the Defendant to obtain one from him.1 On December 1, 2004, Sgt. Helldorfer was

told that the Defendant’s mother had spoken to the Defendant. On January 5, 2005, he

returned to the Defendant’s mother’s house; she had moved, however, and he was unable to

locate her. Sergeant Helldorfer believed that the Defendant, when he eventually came into

police custody about two weeks after being indicted, claimed to have been hiding from the

“real” killer. Sergeant Helldorfer also stated that, during the course of the investigation, he

noted that the victim’s cell phone was being used. After tracking it, he discovered that it had

been found in the grass median on Germantown Road by a member of a work crew from a

nearby penal farm.

Gwen Watts, a Memphis resident, testified that she noticed a purse on the sidewalk

near her house as she went to the grocery store at about 8:30 a.m. on October 17. When she

returned, she saw that the purse was still on the sidewalk. After looking through it, she found

a checkbook bearing the victim’s name; Ms. Watts deduced that the victim worked for ADT

when she saw the company recorded in the deposit register. She called ADT, but found that

the company office was closed on Sundays. She then called the phone company in an effort

to get the victim’s number; a phone company employee could not give Ms. Watts the unlisted

number, but promised to call the victim and leave a message that her purse had been found.

The police, apparently having listened to the message on the victim’s answering machine,

contacted Ms. Watts sometime between 2:00 and 4:00 p.m. that day and recovered the purse.

Witnesses identified this purse as being different from the one found on the handle of the

door connecting the victim’s house to her garage.

Terri Sails, another Memphis resident, testified that she heard a car door slam outside

her house at about 4:00 a.m. on October 17. After waking up between 8:00 and 9:00 a.m.,

she saw a “truck” she did not recognize parked on the road by the side of her residence. That

evening, concerned that the truck had been parked unattended for so long, she approached

the truck and looked inside the passenger compartment, seeing a black briefcase on the floor

near the driver’s seat. She did not look in the back of the truck The vehicle was eventually

determined to be the victim’s 2002 Ford Escape.

Officer Marlon Wright of the MPD crime scene unit testified that he dropped his son

off at football practice between 5:30 and 6:00 p.m. on October 17. As he drove home, he

1

Testimony established that the Defendant’s mother’s DNA could be used to determine whether the

Defendant’s DNA was present on any evidence.

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saw the victim’s Escape parked nearby. As he drove by the vehicle, he confirmed that it

matched the make, model, and tag number that the homicide division had sent out over the

radio as a result of their investigation at the victim’s house. Officer Wright contacted his

supervisor, who arrived, with homicide detectives, to assist at the scene. Upon opening the

back of the vehicle, they found the victim’s face-down body wrapped in a carpet runner.

Officer Wright had the vehicle loaded onto a flat-bed wrecker and taken to one of the MPD’s

secured vehicle bays for further examination.

Charlton McCollum testified that he covered the victim’s disappearance in his

capacity as a photojournalist for Memphis’ FOX 13 News. He was in the area when Officer

Wright and other police personnel recovered the victim’s vehicle on October 17. After Mr.

McCollum finished a particular live shot, an area resident drove by and told him police were

inspecting a bag of clothes on a perpendicular street about a block away. On the following

Tuesday, October 19, 2004, Mr. McCollum returned to the area and found a large black trash

bag full of clothes in the indicated area, near a number of other black trash bags full of leaves

and pine cones. Testimony established that the bag and the victim’s car were both located

near Parkway Village Apartments, the Defendant’s neighborhood at the time.

On the following Friday, October 22, 2004, when it was still believed that the

Defendant may also have been a victim, Mr. McCollum accompanied the Defendant’s family

and a search party as they combed the area around a nearby creek. Mr. McCollum told the

Defendant’s brother, Danny, about the trash bag. He then took Danny to it. The bag was

slightly open; Danny looked around inside it using a stick, and said that some of the bag’s

contents looked like the Defendant’s. Mr. McCollum noticed a blood-like substance on some

of the contents of the bag, but assumed it was transmission fluid. Mr. McCollum also noticed

a mop lying on the ground near the bag. The police were informed about the bag and mop

and collected them as evidence. After looking at a police photograph of the area, Mr. Bidal,

the victim’s son, testified that this mop appeared to be the one that was missing from its usual

storage location in the victim’s garage.

Patricia Turnmire of the MPD crime scene unit recovered this bag on October 22. A

call from a nearby resident led her to believe that the bag had not been present in the area the

night before. She also searched the area around the bag, finding a customer comment card

bearing the victim’s signature lying in the street nearby. The bag itself contained numerous

items, all of which Ms. Turnmire documented, including: a white bath towel; a number of

items of men’s clothing; a Game Boy video game system; deodorant; three belts; five

neckties; a blank cassette tape; an empty cologne bottle; two calculators; a wrist stud; a

“Darryl Robinson Home Improvement” business card bearing the Defendant’s phone

number; a “Robinson Lawn Care Service” business card bearing the Defendant’s name,

phone number, and address; a piece of a broken golf club; a key to a Toyota automobile; a

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cigarette lighter; a disposable razor container; two Wal-Mart plastic bags; one Burlington

Coat Factory plastic bag; a broken silver watch; a pair of flip-flops; an ADT Club Excellence

gym bag; and one latex glove. A second latex glove was found at the bottom of a neighbor’s

empty garbage can. Ms. Turnmire testified that the white bath towel was “wet” and

“bloody”; a few of the men’s clothing items were also wet, and some had mud on them. One

of the shirts also had blood stains on it. The garbage bag itself was found to contain a palm

print; that portion of the bag was collected for testing.

In an effort to find fingerprints, Francis Carpenter of the MPD chemically processed

items recovered from the black garbage bag and from the victim’s house and car, including

an empty chocolate box found on the car’s front passenger seat; a booklet from the back seat;

the empty Diet Pepsi can from the victim’s kitchen; a Cellular South bill; the piece of the

black garbage bag; one of the latex gloves; the Burlington Coat Factory and Wal-Mart bags;

and the door into the victim’s garage. He found ridge detail on the chocolate box, the Diet

Pepsi can, and the piece of the black garbage bag. He could not recover any ridge detail from

the inside of the latex glove he examined, but testified that fingerprints were very difficult

to recover from latex.

Janice Carter, an employee of the Records and Identification section of the Shelby

County Sheriff’s Office, testified that her office maintained the fingerprint records of anyone

who had ever been arrested in the county. She affirmed that she had the Defendant’s

fingerprints on file, although she did not have his palm print; his palm print would have been

taken and then sent to the latent prints department.

James Hill, a latent fingerprint examiner with the MPD, testified that he received the

latent fingerprint lift cards produced by Mr. Carpenter from the items on which he had found

ridge detail. Mr. Hill was asked to compare the prints on those cards with the prints on file

for the Defendant and the victim. He found that the fingerprints taken from the chocolate

box and the Diet Pepsi can matched the victim. The palm print on the black garbage bag,

however, matched that of the Defendant.

Special Agent Brad Everett of the TBI serology and DNA unit conducted DNA tests

on certain items brought to him on November 11, 2004, by Sgt. Helldorfer. He identified

only the victim’s DNA on certain fingernail scrapings taken from her body. He also

determined that the bath towel found in the black garbage bag contained the victim’s blood.

Agent Everett could not recover a sufficient DNA sample from the bloody shirt or flip-flops

found in the black garbage bag. He also could not recover a sufficient sample from the

victim’s mop.

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Doctor Karen Chancellor, an employee of the Shelby County Medical Examiner,

performed the victim’s autopsy on October 19. She noted that the victim’s clothing was

stained with a significant amount of blood. Doctor Chancellor introduced a chart of the

victim’s twenty-five stab wounds; the victim suffered most of the wounds to her chest and

her back, but suffered a few to her left arm. The wounds were inflicted by a single-edged,

non-serrated knife, and damaged the victim’s breastbone, ribs, lungs, heart, and liver. The

victim had no alcohol in her blood, but had taken some Benadryl. Doctor Chancellor

concluded that her death had been caused by multiple stab wounds and that death occurred

on October 16 or 17, the latter being more likely.

The Defendant chose not to testify but called witnesses in his defense. Ruth Ann

Cherry, a global support agent for Federal Express, testified that, in October 2004, she lived

near the corner at which the black garbage bag was found. On “a morning in October” which

was either a Wednesday or a Thursday, she recalled waking up at her usual time of 4:00 a.m.

She heard a knock on her front door shortly thereafter. She looked out her front window and

saw a white man walking toward the end of her driveway. He then walked to the nearby

street corner, where her neighbor had piled up a number of black garbage bags. The man was

not the Defendant. A few days later, she noticed the police investigating the street corner.

Nathaniel Cochran testified that, at the time of trial, he worked as a chauffeur for the

Defendant’s brother, who owned a restaurant and body shop in Las Vegas, Nevada. In

October 2004, however, he lived with the Defendant in the Village Apartments in Memphis.

Mr. Cochran recalled that the victim stopped by his and the Defendant’s apartment one day

that month in order to drop off three black garbage bags full of the Defendant’s clothes. The

Defendant only took two of the bags, however; he placed the third one back in the victim’s

vehicle after retrieving a few items from it. Mr. Cochran did not witness any hostility

between the victim and the Defendant.

Devector Newsum testified that he lived next door to the house the victim and the

Defendant had shared before their romantic relationship ended. He remembered the events

of October 16, 2004, because it was his birthday. He encountered the Defendant in the

neighborhood between 11:00 p.m. and midnight. The two of them walked to a birthday

barbecue being thrown for Mr. Newsum. The Defendant left the barbecue between 12:30

and 1:00 a.m.

Finally, the Defendant called MPD Sergeant Connie Justice, who said that Daniel

Moore had told her he had given the victim $6,000 “in regards to buying a house,” but had

not been more specific.

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The Defendant was convicted of one count of second degree murder and one count

of theft of property valued at greater than $10,000 but less than $60,000. He now appeals.

Analysis

I. Exclusion of Orders of Protection

Before trial, the State learned that the Defendant intended to introduce evidence that

Daniel Moore, rather than the Defendant, may have killed the victim. Specifically, the

Defendant wished to introduce evidence that Daniel Moore had threatened the victim’s life

in the past. The State opposed the Defendant’s proposed introduction of this evidence, and

requested a hearing on the issue. Prior to the presentation of proof, the trial court held a

jury-out hearing in which Daniel Moore testified regarding two petitions for protective orders

the victim had filed against him in June and July 2003. Mr. Moore testified that the victim

had alleged in the July petition that he had threatened to kill her. Although he admitted to

a previous romantic relationship with the victim, Mr. Moore denied threatening her and

believed she had been pressured into filing the petitions by her boyfriend at the time, Rodney

Smith. Mr. Moore and the victim went to court together to dismiss the June petition; the

victim never arrived in court to move forward on the July petition. As a result, both petitions

were dismissed with costs assessed against the victim. The court also heard evidence of

other unstable behavior by the victim, including a suicide attempt.

Unlike some other jurisdictions, Tennessee does not have a special rule for evaluating

the admissibility of evidence that another may have committed a charged crime; our supreme

court has held that the Tennessee Rules of Evidence are sufficient, particularly the rules of

relevance. See State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003).

Evidence is relevant if it tends “to make 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. Relevant evidence may be excluded, however, “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. We will not overturn

a trial court’s application of these rules of relevance absent an abuse of discretion. State v.

Banks, 564 S.W.2d 947, 949 (Tenn. 1978). A trial court abuses its discretion when it

“appl[ies] an incorrect legal standard, or reach[es] a decision which is against logic or

reasoning that causes an injustice to the party complaining.” State v. Shirley, 6. S.W.3d 243,

247 (Tenn. 1999).

The trial court’s ruling is not entirely clear, but it appears to have found that the facts

underlying the victim’s petitions for protective orders lacked reliability because of the

victim’s unstable nature. Although we conclude that the victim’s claims in her petitions were

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relevant under Rule 401 because they tended to establish previous “animosity between the

parties that would give rise to a motive to kill the victim,” Powers, 101 S.W.3d at 395, we

cannot conclude that the trial court abused its discretion in its apparent decision that

admission of the petitions, or of testimony about the facts underlying the petitions, would

have been substantially more prejudicial than probative under Rule 403. The petitions were

filed fifteen months before the victim’s death; the victim chose not to proceed on either

petition and actually assisted Mr. Moore in dismissing one of them; and the victim remained

friends with Mr. Moore. We conclude these facts sufficiently diminish the reliability, and

thus the probative value, of any testimony regarding the victim’s petitions or the events

underlying them.

The Defendant also contends on appeal that exclusion of this evidence violated his

constitutional right to present a defense. In evaluating such claims, we consider whether “(1)

the excluded evidence is critical to the defense; (2) the evidence bears sufficient indicia of

reliability; and (3) the interest supporting exclusion of the evidence is substantially

important.” State v. Brown, 29 S.W.3d 427, 434 (Tenn. 2000) (citing Chambers v.

Mississippi, 410 U.S. 284, 298-301 (1973)).

We cannot conclude that the evidence was critical to the defense, as it concerned

events having no connection to the actual crime at issue. We have no reason to doubt the

reliability of the evidence that the victim petitioned for two protective orders; as discussed

above, however, we agree with the trial court that the facts underlying those petitions were

not reliable. Avoidance of undue prejudice is a substantially important interest. We also

note that the trial court did not foreclose the Defendant from putting on any other proof that

Mr. Moore was responsible for the victim’s death. The Defendant is not entitled to relief on

this issue.

II. Testimony Regarding the Defendant’s Criminal History

The Defendant next contends that the trial court erred by allowing Janice Carter to

testify that his fingerprints were present in a database containing the fingerprints of Shelby

County arrestees. The Defendant argues that this testimony should have been excluded under

Tennessee Rule of Evidence 404:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is

not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing such

evidence are:

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(1) The court upon request must hold a hearing outside the jury’s

presence;

(2) The court must determine that a material issue exists other than

conduct conforming with the character trait and must upon request state

on the record the material issue, the ruling, and the reasons for

admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be

clear and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404. The other issues contemplated by Rule 404(b)(2) include “identity,

motive, common scheme or plan, intent, or the rebuttal of accident or mistake defenses.”

State v. Hall, 958 S.W.2d 679, 707 (Tenn. 1997).

At trial, the Defendant offered to stipulate that the police had access to his

fingerprints; the State declined the stipulation, however. The record reflects that the

Defendant thereafter failed to object to Ms. Carter’s testimony that his fingerprints were on

file because he had previously been arrested. This issue is therefore waived. See Tenn. R.

App. P. 36(a) (stating that “[n]othing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error”).

We must also consider, however, whether the Defendant has established plain error.

See Tenn. R. App. P. 52(b). Plain error requires that five factors be established: (1) “the

record must clearly establish what happened in the trial court”; (2) “a clear and unequivocal

rule of law must have been breached”; (3) “a substantial right of the accused must have been

adversely affected”; (4) “the accused did not waive the issue for tactical reasons”; and (5)

“consideration of the error is necessary to do substantial justice.” State v. Adkisson, 899

S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). Recognition should be limited to errors that

had an unfair prejudicial impact which undermined the fundamental fairness of the trial. Id.

at 642.

We conclude that the trial record establishes that evidence of the Defendant’s arrest

did not establish any other material issue as required by Rule 404(b)(2). The admission of

this testimony did not rise to the level of plain error, however. First, because it appears that

the Defendant acquiesced in the admission of the testimony, the Defendant may have waived

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this issue for tactical reasons. Second, Ms. Carter did not specify how many times the

Defendant had been arrested in the past, nor did she note the offenses for which he was

arrested; we cannot conclude that such testimony undermined the fundamental fairness of the

Defendant’s trial. We also note our previous recognition that “rarely will plain error review

extend to an evidentiary issue.” State v. Ricky E. Scoville, No. M2006-01684-CCA-R3-CD,

2007 WL 2600540, at *2 (Tenn. Crim. App., Nashville, Sep. 11, 2007) (citation omitted).

III. Admission of Defendant’s Death Threat

The Defendant next contends that the trial court erred in admitting Tiffiney Oliver’s

testimony that he threatened the victim’s life after she took his car. The trial court held a

pretrial Rule 404(b) hearing, requested by the State, in which Ms. Oliver testified about the

conversations she overheard between the Defendant and the victim. This testimony was

substantially the same as her testimony at trial. The Defendant argued during that hearing

that Ms. Oliver’s testimony should be excluded as hearsay or, if admitted under a hearsay

exception, excluded as an inadmissible “other crime, wrong, or act” under Rule 404(b). The

trial court admitted the testimony over the Defendant’s hearsay objection, applying

Tennessee Rule of Evidence 803(1.2), which specifies that a party’s own statement offered

against that party is not excluded by the hearsay rule. The trial court also admitted the

testimony under Rule 404(b), finding Ms. Oliver’s proof clear and convincing, and finding

her testimony “highly relevant for purposes of intent, motive, identification or identity.”

Our review of the record reveals that the trial court complied with Rule 404(b); when

a trial court substantially complies with the requirements of Rule 404(b), we review its

determination under an abuse of discretion standard. See State v. DuBose, 953 S.W.2d 649,

652 (Tenn. 1997). Determinations of whether a statement is hearsay or whether evidence is

relevant under Tennessee Rules of Evidence 401 and 403 lie within the sound discretion of

the trial court, and we will not overturn a trial court’s decisions absent an abuse of discretion.

See State v. Flood, 219 S.W.3d 307, 313 (Tenn. 2007); State v. Stinnet, 958 S.W.2d 329, 331

(Tenn. 1997).

At trial, the Defendant argued that his previous threats were hearsay and that they

should be excluded under Rule 404(b). His argument on appeal is not entirely clear. In his

brief he appears to argue only that the statements should have been excluded by Rule 403,

which states that “[a]lthough relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice . . . .” He did not make a Rule 403

objection at the pretrial hearing, however; this issue is therefore waived. See Tenn. R. App.

P. 36(a).

His reply brief instead contends that the trial court erred in finding that his threats

were relevant to issues of “intent, motive, identification or identity” under Rule 404(b)(2).

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We note the Defendant’s argument that he conditioned his death threat on the return of his

car, saying, “If you don’t get the fucking car back, I’m going to kill you.” Because the victim

returned his car, he argues that his threat lost its probative value as evidence. He also argues

that the threat, which he made the month before the victim’s death, was too remote in time

to be probative.

We disagree. The Defendant’s objection based on temporal remoteness goes to his

threat’s weight rather than its admissibility. See State v. Smith, 868 S.W.2d 561, 575 (Tenn.

1993) (citations omitted). Similarly, we conclude that, although the threat’s conditional

nature may have diminished its probative value upon the return of the car, it retains some

tendency to show that the Defendant harbored an intent and motive to kill the victim. We

therefore conclude that the trial court did not abuse its discretion in admitting this evidence.

This issue is without merit.

IV. Sufficiency of the Evidence

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in

criminal actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”

A convicted criminal defendant who challenges the sufficiency of the evidence on appeal

bears the burden of demonstrating why the evidence is insufficient to support the verdict,

because a verdict of guilt destroys the presumption of innocence and imposes a presumption

of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35

S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This

Court must reject a convicted criminal defendant’s challenge to the sufficiency of the

evidence if, after considering the evidence in a light most favorable to the prosecution, we

determine that any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,

8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35

S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the

testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the

prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions

about the credibility of witnesses, the weight and value of the evidence, as well as all factual

issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh

or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor

will this Court substitute its own inferences drawn from circumstantial evidence for those

drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

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A. Second Degree Murder

Second degree murder is “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-

210(a)(1). The Defendant challenges the sufficiency of the evidence establishing his identity

as the victim’s killer. We preliminarily note our agreement with the Defendant that such

evidence was wholly circumstantial; as such, proof beyond a reasonable doubt requires facts

“so clearly interwoven and connected that the finger of guilt is pointed unerringly at the

defendant and the defendant alone.” State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985)

(quoting State v. Crawford, 470 S.W.2d 610, 613 (Tenn. 1971). Proof must also be

“inconsistent with [a defendant’s] innocence and must exclude every other reasonable theory

or hypothesis except that of guilt . . . .” State v. Pruitt, 460 S.W.2d 385, 390 (Tenn. Crim.

App. 1970). The Defendant does not dispute that the victim was killed or that the facts show

that her killer acted knowingly. He does dispute, however, that the State proved his identity

as the killer.

The Defendant correctly notes that no eyewitness or DNA evidence connected him

to the crime. His palm print, however, was found on a bag containing a number of articles

of his clothing, various personal items, and a towel covered in the victim’s blood. The bag

had been placed on a pile of similar bags in an apparent attempt at concealment and disposal

of evidence. One latex glove was found in the bag, while another was found at the bottom

of a nearby garbage can, supporting a possible inference that the Defendant left his palm

print on the bag after removing one latex glove. The Defendant’s previous threat to kill the

victim showed some evidence of a motive.

We also note that “[a] defendant’s flight and attempts to evade arrest are relevant as

circumstances from which, when considered with the other facts and circumstances in

evidence, a jury can properly draw an inference of guilt.” State v. Zagorski, 701 S.W.2d 808,

813 (Tenn. 1985) (citing Sotka v. State, 503 S.W.2d 212, 221 (Tenn. Crim. App. 1972)). The

Defendant did not come into police custody until about two weeks after his January

indictment, or about three months after the victim was killed. Sergeant Helldorfer testified

that the Defendant claimed to have been hiding from the “real” killer. The jury was not

required to credit this claim. The Defendant failed even to contact his family for some time

after the murder, allowing them to believe that he may have been a victim as well. A rational

jury could conclude that this absence evidenced more than merely an intent to hide from the

“real” killer.

We conclude that this evidence is consistent with the Defendant’s guilt. We also

conclude that the evidence is inconsistent with the Defendant’s innocence and with his

apparent theory that Daniel Moore killed the victim and attempted to frame him. Testimony

established that Mr. Moore and the victim were friends. Further, the jury was entitled to

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reject the Defendant’s implication that Mr. Moore’s monetary gifts to the victim constituted

a motive to kill her.

We acknowledge that the State’s proof in this case was not overwhelming, but

conclude that it was sufficient to allow any rational trier of fact to find that the Defendant

knowingly killed the victim beyond a reasonable doubt.

B. Theft

“A person commits theft of property if, with intent to deprive the owner of property,

the person knowingly obtains or exercises control over the property without the owner’s

effective consent.” Tenn. Code Ann. § 39-14-103. We have concluded that the evidence

was sufficient to prove that the Defendant killed the victim; for the same reasons, it was also

sufficient to prove that he stole her vehicle. The Defendant additionally contends, however,

that the State put on insufficient proof at trial to establish the value of the victim’s car.

“Value” is defined as “(i) The fair market value of the property or service at the time and

place of the offense; or (ii) If the fair market value of the property cannot be ascertained, the

cost of replacing the property within a reasonable time after the offense.” Tenn. Code Ann.

§ 39-11-106(a)(36)(A). The fair market value of property is to be determined by the jury.

See State v. Hamm, 611 S.W.2d 826, 828-29 (Tenn. 1981).

We agree with the Defendant that the State did not prove the vehicle’s value beyond

a reasonable doubt. The State presented proof that the victim, at the time of her death, owned

a 2002 Ford Escape that she had purchased new. The car was operational. The State also

introduced a number of pictures of the car taken after it was recovered by police; after

reviewing these pictures, we conclude they support an inference that the car was in relatively

good condition. The State did not, however, put on any proof of the vehicle’s monetary

value. We conclude that the evidence was sufficient only to prove beyond a reasonable doubt

that the vehicle had some value; we accordingly modify the Defendant’s conviction for theft

of property valued at greater than $10,000 but less than $60,000 to a conviction for theft of

property valued at less than $500, a Class A misdemeanor. See Tenn. Code Ann. § 39-14-

105(1).

V. Sentencing

Before a trial court imposes a sentence upon a convicted criminal defendant, it must

consider (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the

nature and characteristics of the criminal conduct involved; (e) evidence and information

offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code

Annotated sections 40-35-113 and 40-35-114; and (f) any statement the defendant wishes to

make in the defendant’s own behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b);

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State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate review, the trial

court is required to place on the record its reasons for imposing the specific sentence,

including the identification of the mitigating and enhancement factors found, the specific

facts supporting each enhancement factor found, and the method by which the mitigating and

enhancement factors have been evaluated and balanced in determining the sentence. See

State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

Upon a challenge to the sentence imposed, this Court has a duty to conduct a de novo

review of the sentence with a presumption that the determinations made by the trial court are

correct. See Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned

upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and that the trial

court’s findings of fact are adequately supported by the record, then the presumption is

applicable, and we may not modify the sentence even if we would have preferred a different

result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991). We will uphold

the sentence imposed by the trial court if (1) the sentence complies with the purposes and

principles of the 1989 Sentencing Act and (2) the trial court’s findings are adequately

supported by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden

of showing that a sentence is improper is upon the appealing party. See Tenn. Code Ann. §

40-35-401, Sentencing Commission Comments; Arnett, 49 S.W.3d at 257.

The presentence report in this case indicates that, at the time of sentencing, the

Defendant was forty-three years old. He dropped out of high school after the eleventh grade.

He reported some employment history from 2000 to 2003. His criminal record included only

a 1986 arrest for credit card fraud, for which he was not prosecuted.

A. Consecutive Sentencing

The trial court ordered the Defendant to serve his sentences consecutively. Tennessee

Code Annotated section 40-35-115(b) lists the criteria a court must use to determine whether

a defendant convicted of more than one criminal offense will serve the resulting sentences

consecutively or concurrently. The trial court in this case ordered the Defendant to serve his

sentences consecutively based largely on its finding that the Defendant “is a dangerous

offender whose behavior indicates little or no regard for human life, and no hesitation about

committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-

115(b)(4). Although the decision between consecutive and concurrent sentencing lies within

the sound discretion of the trial court, see State v. James, 688 S.W.2d 463, 465 (Tenn. Crim.

App. 1984), “the imposition of consecutive sentences on an offender found to be a dangerous

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offender requires, in addition to the application of general principles of sentencing, the

finding that an extended sentence is necessary to protect the public against further criminal

conduct by the defendant and that the consecutive sentences must reasonably relate to the

severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

The Defendant takes issue with the trial court’s additional consideration of the fact

that the he seemed not to show remorse for his crime. The record, however, supports the trial

court’s finding that the Defendant is a dangerous offender, and demonstrates that it properly

considered the required Wilkerson factors. This issue is without merit.

B. Length of Sentence

As a Range I, Standard offender, the Defendant was subject to sentencing ranges of

fifteen to twenty-five years for his Class A felony second degree murder conviction, and

three to six years for his Class C felony theft conviction. The trial court ordered the

Defendant to serve the maximum sentence on both counts, and ordered that he serve those

sentences consecutively, for a total effective sentence of thirty-one years in the Department

of Correction.

The Tennessee legislature recently amended several provisions of the Criminal

Sentencing Reform Act of 1989, those changes becoming effective June 7, 2005. The

Defendant’s crimes occurred prior to that date, and he was sentenced after it. As such, the

Defendant could have elected to be sentenced under the revised Act by executing a waiver

of his ex post facto protections. See Tenn. Pub. Acts ch. 353, § 18. He did not execute such

a waiver, however, and thus should have been sentenced under the 2003 codification of the

Act. That codification violated the United States Supreme Court’s requirement that “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable

doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The statutory maximum “is not

the maximum sentence a judge may impose after finding additional facts, but the maximum

he may impose without any additional findings.” Blakely v. Washington, 542 U.S. 296, 305-

306 (2004).

The sentencing law under which the Defendant’s conviction fell contained a

presumptive sentence. “The presumptive sentence may be exceeded without the participation

of a jury only when the defendant has a prior conviction and/or when an otherwise applicable

enhancement factor was reflected in the jury’s verdict or was admitted by the defendant.”

State v. Phillip Blackburn, No. W2007-00061-CCA-R3-CD, 2008 WL 2368909, at *14

(Tenn. Crim. App., Jackson, Jun. 10, 2008). In this case, the trial court increased the

Defendant’s sentence based on two enhancement factors. First, it found that the Defendant

had a previous history of criminal behavior in addition to that necessary to establish his

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range. See Tenn. Code Ann. § 40-35-114(1). It based this factor on its finding that an ex-

wife of the Defendant had filed two domestic violence complaints against him in 2001.

Second, the trial court found that the Defendant employed a deadly weapon in the

commission of the offense. See Tenn. Code Ann. § 40-35-114(9). The trial court did not

specify the relative weight it put on each factor, noting only that “both have more

significance in this case because of the facts of the case than they may have in other cases.”

The Defendant had no prior criminal convictions. The trial court erred in enhancing

the Defendant’s sentence based on his ex-wife’s domestic violence complaints because they

were not admitted by the Defendant or reflected in the jury’s verdict. See Apprendi, 530 U.S.

at 490; Blackburn, 2008 WL 2368909, at *14. Testimony at trial established without

question that the victim was killed by stab wounds; we therefore conclude that the use of a

deadly weapon was reflected in the jury’s verdict and properly considered as an enhancement

by the trial court. Because one of the two enhancement factors was applied in error,

however, we remand for resentencing in accordance with Blakely and Apprendi.

Conclusion

Based on the foregoing authorities and reasoning, we affirm the Defendant’s second

degree murder conviction, but modify his conviction for theft of property valued at greater

than $10,000 but less than $60,000 to a conviction for theft of property valued at less than

$500. The Defendant’s sentence of twenty-five years for second degree murder is vacated.

This case is remanded to the trial court for resentencing consistent with this opinion.

______________________________

DAVID H. WELLES, JUDGE

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