State of Tennessee v. Ronald W. Damon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 18, 2013

STATE OF TENNESSEE v. RONALD W. DAMON

Appeal from the Circuit Court for Rutherford County

No. F65181A Don R. Ash, Judge

No. M2012-02263-CCA-R3-CD - Filed April 25, 2014

The Defendant, Ronald W. Damon, was convicted by a Rutherford County Circuit Court jury

of two counts of especially aggravated kidnapping, Class A felonies; aggravated robbery, a

Class B felony; aggravated burglary, a Class C felony; and conspiracy to commit aggravated

burglary, a Class D felony. See T.C.A. §§ 39-13-305 (2010) (especially aggravated

kidnapping), 39-13-402 (2010) (aggravated robbery), 39-14-403 (aggravated burglary), 39-

12-103 (2010) (criminal conspiracy). The trial court sentenced the Defendant to consecutive

terms of twenty-three years as a violent offender for each of the especially aggravated

kidnapping convictions, eleven years as a Range I, standard offender for aggravated robbery,

nine years as a Range II, multiple offender for aggravated burglary, and seven years as a

Range II, multiple offender for conspiracy to commit aggravated burglary. On appeal, the

Defendant contends that (1) the trial court erred in denying his motion for a judgment of

acquittal or a new trial, (2) the evidence is insufficient to support his convictions, (3) the

court erred in allowing an eight-day break in the trial between the proof and the closing

arguments, (4) the court erred in excluding the testimony of a 9-1-1 operator regarding one

of the victim’s statements, (5) the court erred in admitting testimony about a letter he wrote,

(6) the court erred in admitting evidence of his prior bad acts, (7) the court erred in allowing

the State to play portions of a video recording of his pretrial statement, (8) the court erred in

allowing a jail inmate to testify without being subject to cross-examination about the

truthfulness or falsity of his prior testimony in another matter, (9) the court erred in admitting

testimony about his financial problems despite the witness’s lack of personal knowledge, (10)

the court erroneously admitted evidence in his first trial that resulted in a hung jury but would

have resulted in an acquittal if the evidence had not been admitted, and (11) the court erred

during sentencing. We affirm the judgments of the trial court.

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

J OSEPH M. T IPTON , P.J., delivered the opinion of the court, in which A LAN E. G LENN and

J EFFREY S. B IVINS, JJ., joined.

Ben Hall McFarlin, III, (at trial and on appeal), Ken Burger (at trial), and Claire Burger (at

trial), Murfreesboro, Tennessee, for the appellant, Ronald W. Damon.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant

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

OPINION

The Defendant’s convictions relate to a home invasion and injuries to Edna Story and

Cecil Story. The Defendant was charged along with two codefendants, and he received a

separate trial.

At the trial, Cory Foster testified that he had known the Defendant for a few months

in December 2009. They were neighbors, and their children played together. He said that

although he was unemployed, he sometimes worked for his father’s heating and air

conditioning business and on a farm where the Defendant obtained work for them. He said

he met Cecil Story through the Defendant. He and the Defendant cut, cleared, and burned

trees, painted, and performed other labor for Mr. Story. He said that he had financial

problems and that Mr. Story bought lunch, cigarettes, gas, and beer for him and the

Defendant. He said that although he did not know the details, he was aware the Defendant

had financial problems. He said the Defendant’s car was “towed away on a rollback in front

of his house.” He said he and the Defendant had not spoken for “at least a couple of weeks”

before the events in this case.

Mr. Foster testified that the Defendant took gas from the Storys’ farm and put it into

the Defendant’s car without Mr. Story’s knowledge. He said the Defendant took scrap

copper from the Storys’ farm, put it into Mr. Foster’s trunk, and asked if Mr. Foster could

“get rid of it.” He said that he told the Defendant he could but that the copper was still in his

trunk when the police searched his car. He said Mr. Story did not give anyone permission

to take the copper.

Mr. Foster testified that the Defendant talked to him about burglarizing the Story

home. He said that they went to the Story farm one day for work, that no one was home, and

that the Defendant told him it would be “a good score.” He said that he did not want to be

involved and that he left with the Defendant in his car. He said the Defendant mentioned

once or twice that there might be around $100,000 and a valuable guitar at the Story house.

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Mr. Foster testified that he knew James Charlie Pittard and estimated he had seen the

Defendant and Mr. Pittard together ten to fifteen times. He said Mr. Pittard drove a black

Blazer and Mr. Pittard’s father’s white F-150 extended cab truck with a tool box.

Mr. Foster testified that on the evening of December 27, 2009, he was at his father’s

house in Woodbury. He said the Story house was in Eagleville. He agreed he provided the

police with information or assistance in the arrest of Ashton Garza relative to this case. He

thought the Defendant’s car was towed when it was repossessed. He said that after the car

was repossessed, he gave the Defendant rides but that later, Mr. Pittard gave the Defendant

rides. Mr. Foster thought “his wife’s kinfolk” gave the Defendant rides, although he did not

specify to whom he referred.

On cross-examination, Mr. Foster testified that he worked for Mr. Story for two weeks

to a month. He said that before the Defendant’s car was repossessed, he rode with the

Defendant to the Storys’ property but that he drove them afterward. He said he drove his car

to the Storys’ property, not his girlfriend’s Dodge Durango.

Mr. Foster testified that he met Mr. Garza through a friend who was a Marine and

agreed he and Mr. Garza were friends. He denied buying a car from Mr. Garza but said he

bought one from Mr. Pittard. He agreed he requested reward money for helping the police

with Mr. Garza’s arrest but said he did not receive it. He said, though, that he became

involved because he did not want Mr. Garza to hurt him or his family.

Mr. Foster testified that it was difficult to tell when the Defendant was serious or

joking. He said that when the Defendant mentioned robbing the Storys, he thought the

Defendant “was joking more than being real at the moment,” although he was unsure if the

Defendant was serious. He said he probably would not have gone to the police because he

thought it was better if he did not become involved with the police. He did not recall if Mr.

Story’s gas was ever put into his car. He agreed Mr. Story provided gas if they asked,

although he said Mr. Story sometimes did not have cash. He said Mr. Story was good to

them. Regarding the copper, he said he told the Defendant “maybe” he would dispose of it.

He said he did not contact the authorities because he thought it was better not to talk to them.

He agreed he was not charged with possession of stolen property relative to the copper.

On redirect examination, Mr. Foster testified that he could not tell if the Defendant

was joking about robbing the Storys and that the Defendant could have been testing him. He

said that when he drove away, the Defendant did not say he had been joking.

Mr. Foster testified that a person could not sell copper without a heating and air

conditioning (HVAC) license. He said that the Defendant did not have a HVAC license but

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that the Defendant knew Mr. Foster and his father were in the HVAC business. He said that

when he talked to the police, he told them about the copper the Defendant put into his trunk.

On recross-examination, Mr. Foster testified that he did not think he was being

dishonest by leaving the copper in the trunk of his car and not telling the authorities. He said

he probably would not have talked to the authorities unless someone were going to do

something to him or told him he had to do something. On further redirect examination, Mr.

Foster testified that he was the follower and the Defendant was the leader regarding the

copper.

Rutherford County Sheriff’s Dispatcher Tracey Hackney testified that she received

a call for help from Ms. Story at 10:13 p.m. on December 27, 2009. She said that the first

responders arrived at 10:33 p.m. and that Deputy Pinson was dispatched at 10:42 p.m.

Rutherford County Sheriff’s Corporal William Pinson testified that he went to the

victims’ house on December 27, 2009, searched briefly for suspects, and helped secure the

scene. He said that Ms. Story had a cut on the bridge of her nose, that her face was covered

in blood, and that she appeared dazed. He said Mr. Story had a wound on his upper lip. On

cross examination, he said he did not see anything that made him think the Defendant was

involved. On redirect examination, he said he did not see anything that made him think Mr.

Pittard or Mr. Garza were involved.

Rutherford County Paramedic Steve Hollandsworth testified that he and Vernon

Williams responded to the scene, although a delay existed in their reaching the victims while

the sheriff’s department secured the scene. He said that Mr. Story’s injuries were to his face,

that his shirt was bloody, that blood was on the floor near him, and that his upper lip was

split. He said that Ms. Story had head injuries but did not recall what they were. He

identified a photograph of Mr. Story, which depicted Mr. Story’s condition on December 27,

2009.

On cross-examination, Mr. Hollandsworth testified that he saw blood in the Storys’

house but that he did not notice any footprints in the blood. He did not recall seeing blood

on objects around the room. He thought Ms. Story was in a different room than Mr. Story.

He treated Mr. Story, and Mr. Williams treated Ms. Story.

Rutherford County Paramedic Vernon Williams testified that after the sheriff’s

department cleared the scene, he and Mr. Hollandsworth went to the victims’ house. He said

that the house was in “kind of a disarray” and that the victims were covered in blood. He did

not recall Mr. Story’s injuries and said Mr. Hollandsworth treated Mr. Story. He said the

area around Mr. Story was bloody. He said Ms. Story had several “skin tears” on her arms

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and face. He thought the skin tears on her arms were around her wrists and said she may

have had skin tears around her legs, also. He described a skin tear as an area with tissue

pulled away from a cut. He said the facial injury was to the bridge of her nose. He identified

a photograph of Ms. Story that depicted her condition on December 27, 2009.

On cross-examination, Mr. Williams testified that Mr. and Ms. Story were in different

rooms when he and Mr. Hollandsworth arrived. He thought he treated Ms. Story in the

kitchen. He said that Ms. Story was no longer bleeding when he treated her. He saw a lot

of blood in the room where she was and thought blood was tracked throughout the house,

although he did not recall seeing footprints in the blood. He did not recall blood on the walls

or door knobs.

The jury was informed of the parties’ stipulations:

That Edna Story suffered serious bodily injury that included a closed fracture

of the nasal bones, multiple open wounds to her body including but not limited

to an open wound to [her] wrist and an open wound to her knee. And that

these injuries substantially impaired the use of one or more of her bodily

members, organs or functions and also caused extreme physical pain. Number

two, that Cecil Story suffered serious bodily injury that included a non-

displaced fracture line in the anterior, medial and lateral walls of both

maxillary sinuses, a focal depression in the left lateral orbital floor with

suspicion of a fracture and multiple contusions and lacerations that resulted in

the loss of consciousness, extreme physical pain and substantially impaired the

use of one or more of his bodily members, organs or functions.

Rutherford County Sheriff’s Deputy Matthew Moseley testified that he responded to

the victims’ home on December 27, 2009. He said that the victims were already in an

ambulance when he arrived and that he was instructed to follow the ambulance and obtain

their statements. He said that they were interviewed separately, that he had their statements

typed, and that he had the victims sign the statements. He identified and read Mr. Story’s

statement, which stated:

When I got to the door I thought it was maybe the girl over next door

and I opened the door. And when I did he clobbered me I guess. The next

thing I knew I was back in the floor away from the door and blood was all over

the place. He had tried to tie me up or was tying me up so I must have passed

out for a few seconds anyway. They went through the house and tore the

house all to pieces. They were looking for money, but I told them there wasn’t

any money.

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Deputy Moseley identified and read Ms. Story’s statement, which stated:

I was sleeping but I heard the knock at the door. And I got up to go

answer it. But when I got up to where I was going to answer it, my husband

came up and I let him answer it. When he did there was two men he said at the

door. Next thing I know one of them jumped him and put him on the floor.

And then the other jumped me and put me on the floor. We weren’t allowed

to look up at all and if you did try to look up you were going to get hit or hurt.

So we did what they said. He got beat up worse than I did. Anyway, I actually

didn’t get to see anything.

On cross-examination, Deputy Moseley testified that neither victim said anything

about recognizing the perpetrators’ voices. On redirect examination, he said he asked them

if they recognized any voices. He said they could not identify anyone by sight.

Eagleville Church of Christ Minister Jim Lawyer testified that the victims and the

Defendant were members of his congregation. He said the Defendant began attending at the

invitation of another member, Michael Loyd, Jr. He identified a church directory that

contained photographs of the victims, the Defendant and his family, and Mr. Loyd and his

former wife.

Rev. Lawyer testified that after the Defendant began attending church, he learned

from the Defendant and Mr. Story that the Defendant began doing farm work for Mr. Story.

He described the Defendant’s family as being in “pretty dire straits” financially. He bought

diapers and baby formula and gave them money for gas and utilities.

Harry Barnes testified that the victims were his aunt and uncle. His grandmother left

a farm to her daughters, who were his mother and Ms. Story. He said that his mother and

Ms. Story divided the farm and that the Storys built a house on half. He said that after his

mother died, he kept forty-nine to seventy-five cattle on the farm and worked with Mr. Story

to care for them. He said that he went to the farm two to five days a week and that he saw

the Storys when he was there.

Mr. Barnes testified that Mr. Story introduced him to the Defendant at the farm. He

stated that they took twelve cattle to the stockyard on December 9 or 10 and December 17,

2009, and that they received $5000 to $6000 for them. He said that on December 17, the

Defendant had car trouble and had two males with him to help load cattle with Mr. Barnes

and Mr. Story. Mr. Barnes said he had never seen the two males before December 17.

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Mr. Barnes testified that he saw Mr. Story give the Defendant a $100 bill at least once

and that he thought the payment was excessive for working from 9:00 or 9:30 a.m. until 2:00

or 3:00 p.m. He said he spoke with Mr. and Ms. Story about it because it occurred often. He

said Mr. Story stated that he gave the Defendant money for rent at least three times and for

car repairs. Mr. Barnes agreed Mr. Story was talkative and said he talked about money in

front of people he should not. He said Mr. Story was vulnerable to telemarketing and mail

sweepstakes scams. He said the Defendant was present when he and Mr. Story discussed the

proceeds of the stockyard sales. He said he told Mr. Story numerous times not to talk about

money to strangers. He identified a map depicting the farm.

On cross-examination, Mr. Barnes agreed that the Defendant came to the Storys’ farm

“almost too much” looking for money and work. He said Mr. Story was eighty-seven years

old. He did not remember the names of the men who were with the Defendant on December

17, 2009. He said one of the males was around fourteen or fifteen years old and wore a red

shirt, which he said scared the cattle. He said Mr. Story asked the person to remove the shirt.

He said the other male was around the Defendant’s age.

Mr. Barnes agreed that payments from the stockyard were made by check, not cash.

He agreed that given Mr. Story’s financial assistance to the Defendant, it would not make

sense for the Defendant to be involved in the crime.

On redirect examination, Mr. Barnes agreed that it might be worth “killing the golden

goose” for $100,000 or a violin worth several thousand dollars and if two other people would

do the “dirty work” while the person stole the property. He said Mr. Story received a “fair

amount of money” in the two weeks before the crime. He thought two of the cattle sold were

his and the others were Mr. Story’s. He did not know if Mr. Story cashed the stockyard

checks. He said Mr. Story always had cash and preferred cash transactions.

On recross-examination, Mr. Barnes testified that to his knowledge, there was never

$100,000 cash in the Storys’ house. He said the Storys were “very poor generally speaking.”

He said that they lived on the farm all their lives, that Mr. Story never made much money,

that Ms. Story retired from AT&T and received “a little” retirement and Social Security

benefits. He thought Mr. Story received spousal benefits from Social Security. He said Mr.

Story talked about a violin and a guitar, but he did not know if they were taken in the crime.

On further redirect examination, he said Mr. Story told him the violin was valuable. He said

Mr. Story kept the violin in a case.

John Story, the victims’ son, testified that his mother was ninety-three years old and

that his father was eighty-seven when the crime occurred. He said that at the time of the

crime, his mother’s weight in pounds was in the upper eighties and that she was frail.

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Mr. Story testified that he met the Defendant once at the farm when the Defendant

was helping his father work. He said his father was talkative and talked about money to

people. He did not know if his father talked to the Defendant about money. He said his

father’s memory was not good but was “okay” considering his age.

Mr. Story testified that after a police officer came to his house, he went to the hospital

to see his parents. He said his mother’s wrists were bandaged. He did not recall if her face

was bandaged or injured. He said his father was in “pretty bad shape” with his mouth or lip

“totally red.”

Mr. Story testified that after the crime, he and several other people, including Rev.

Lawyer, cleaned the victims’ house. He said a large pool of blood was on the floor.

Referring to a diagram, he described the house and the location of the blood. He said papers

that had been in a hutch covered the floor. He said the contents of dresser drawers in his

father’s bedroom had been dumped on the floor. He said that his father had a couple of

violins but did not know if they were valuable, that his father had a valuable guitar, and that

his father had a shotgun. He said his mother’s bedroom did not seem to have been disturbed.

He said he later learned his parents kept cash in his mother’s bedroom. He was unable to

find the cash in his mother’s room the first time he searched but found it the second time.

Mr. Story testified that he and Mr. Barnes discussed Mr. Barnes’s concerns about the

Defendant’s frequent appearances at the Storys’ farm. He did not recall if he discussed Mr.

Barnes’s concerns with his father. He said the cash he found in the closet totaled $6200.

On cross-examination, Mr. Story testified that he was aware of the Defendant’s

contact with his father but was unsure how much contact the Defendant had with his mother.

He said his mother mentioned “they” ate a meal with them once, although Mr. Story never

saw the Defendant in the house. He said his father told him the guitar was worth about

$70,000. He agreed his father talked a lot about the value of things. He said that although

it was possible his father talked about the guitar’s value around the Defendant, he was not

present for any such conversation. He was unaware of his parents having any dealings with

Mr. Garza and Mr. Pittard.

Mr. Story testified that the police officers told him they had taken as evidence the

cover to a security box. He had no knowledge of any damage or tampering to the box. He

was not aware of any facts to suggest Mr. Garza or Mr. Pittard knew the security code for the

gate. He said Mr. Barnes, Mike Frozier, and he knew the code. He said that his parents were

“very competent” mentally given their ages and that his mother had some vision problems.

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Mr. Story testified that he talked to his parents at the hospital. He said they were in

separate rooms. He said his mother appeared to be in pain and scared. He stated that she

said two men broke into the house, beat them, and tied them up.

On redirect examination, Mr. Story testified that he talked to his mother around 2:00

a.m. after the police talked to her. He agreed she talked to several people before him. He

did not know if she told him what she saw when she said two men beat them. He agreed that

in his mother’s 1:00 a.m. statement, she did not say that she saw two men but stated that her

husband said there were two men. He identified a photograph exhibit depicting the front

panel of the security box. He did not think it was damaged when it was returned. He did not

know if it had been “messed with” by anyone who came to rob his parents.

Eighty-seven-year-old Cecil Story testified that his wife, Edna Story, died after

December 2009. He said that in December 2009, Ms. Story had lost a significant amount of

weight, that she weighed about seventy pounds, and that a diagnosis had not been

determined. He said he raised cattle on a 103-acre farm. He said he had about fifty-five head

of cattle, nine donkeys, a dog, a cat, and a guinea. He said he had two dogs in 2009. He said

that one of the dogs was large and could not hear and that the other was a small dog that

barked when people came to the farm.

Mr. Story testified that he met the Defendant at church. He said he gave the

Defendant $40 the first time he met him because the Defendant said he was “broke.” He said

the Defendant came to work daily at his farm, although he did not ask the Defendant to come

daily. He said he usually found work for the Defendant, who was a good worker. He

thought he paid the Defendant in cash and said he had paid the Defendant as much as $100

several times. He did not remember if he paid the Defendant’s bills. When asked if he was

aware the Defendant had financial difficulties, he said the Defendant could not find a job.

He said he ate lunch with the Defendant but did not remember the circumstances. He said

he probably bought the Defendant’s lunch. He recalled an occasion when the Defendant, the

Defendant’s wife, and the Defendant’s son came to his house for lunch.

Mr. Story testified that he would not recognize the Defendant in the courtroom and

did not know whether he saw the Defendant in court. He said he and Harry Barnes, his

nephew, were involved in a cattle venture. He said the Defendant had been inside his house

a few times. He did not recall if the cattle venture was discussed when the Defendant was

inside his house. He said his violin was “very” valuable and had belonged to his father. He

said his guitar was worth $70,000 to $75,000. He said that he read in a paper that the

Defendant brought a nephew to the Storys’ house and that the nephew played the guitar and

“loved it.” He did not remember if he talked to the Defendant about the guitar’s value. He

said he owned a shotgun that was valuable because it had been owned by a deceased country

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music star. He did not recall if he told the Defendant about the shotgun. He remembered

buying beer for people who worked for him and said he would have shared it with the

Defendant. He said he tried to give the Defendant money for gas every time the Defendant

came to the farm. He said he kept $100 to $115 in his wallet. He said he usually paid the

Defendant in cash.

Mr. Story testified that when he went to bed on December 27, 2009, the violin was on

the dresser in his room, not on the bed as depicted in a photograph exhibit. Referring to

photographs, he said the room was a “mess” and was not that way when he went to bed.

Photographs depicted two violins, two bows, and a shotgun. He said that Ms. Story went to

bed around 7:00 p.m., that he went to bed around 9:30 p.m., and that he was asleep until he

heard a knock at the door. He opened the door because he thought a neighbor was there. He

said Ms. Story reached the door before he did. He said he opened the door and saw two

“boys” in “[g]ood looking” matching “school coats.” He said he turned on two lights as he

opened the door, but one light had been broken. He said that when he opened the door, he

“got clobbered” and was knocked about ten feet. He said his lip was “[c]ut . . . in two.” He

did not remember if anyone said anything about his cattle being loose. He said that his lip

had not healed and that he had been told it might never heal. He said it hurt to bite. He

thought he might have been hit with a piece of 1/2" pipe. He thought he was unconscious

at least three times and said he was hit two or three times. He said there could have been a

third person he did not see. He said he told the people where to find the money and his

wallet. He said that Ms. Story’s head and hair were covered in blood, that he thought she had

been hit, and that he did not see anyone hit her. He said he did not see the people leave or

know if they left together. He said that when he regained consciousness, he was tied up and

that he did not remember being tied up. He said Ms. Story had thin skin, which was torn

because she struggled against the rope used to bind her. He identified photographs depicting

their injuries.

Mr. Story testified that he did not know how long it took to free themselves. He said

Ms. Story called the police. He did not remember giving a statement to the police at the

hospital. He did not think he would recognize the voices of the people who came into his

home. He identified a photograph exhibit depicting the control panel for his gate with the

cover on the ground. He said the cover was secured by a nail and did not think the cover had

been on the ground on the afternoon of December 27, 2009. He said the control panel

worked after December 27 and did not know if the people who came into his home removed

the cover.

Mr. Story testified that his hearing was better on December 27, 2009, than it was at

the trial. He said that his dogs did not bark on December 27, that they barked at strangers,

and that he opened the door because the dogs did not bark. He said the Defendant came to

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his farm looking for work so frequently that it was “aggravating” because he had other things

to do. He said the Defendant never came to his farm looking for work after December 27.

On cross-examination, Mr. Story testified that although he had a limited amount of

work and money to spend, he sometimes needed the Defendant’s help. He agreed that in

September, he searched for the Defendant’s home because he needed the Defendant’s help

to bale hay. He thought he and the Defendant had a good relationship. He was unaware of

any disagreements between them. He did not recall giving the Defendant the code to open

the gate but said he would have had to in order for the Defendant to get through the gate. He

thought that after December 27, 2009, the people who installed the gate had to work on the

control panel.

Mr. Story testified that the Defendant’s fourteen-year-old nephew helped “catch the

cows” on one occasion. He did not remember the Defendant’s nephew being inside his

house and playing the guitar. He recalled discussing the guitar when the Defendant’s nephew

was at the farm.

Mr. Story testified that he did not remember if he saw two men on the porch on

December 27, 2009. He then said, though, that a small “Mexican boy or whatever he was”

sat on the porch. He said the other man stood with the door in his hand. He said the

Defendant was not one of the men. He did not recall Mr. Pittard but said it was possible he

helped with the cattle on December 17. He did not think anything other than his wallet was

taken on December 27. When asked if a third person could have been present, he said,

“Somebody had taken care of the dogs. I don’t know how they didn’t bark.” He said that

he did not have jewelry and that his wife did not wear a lot of jewelry. He said they had lock

boxes to keep valuables but did not think they were disturbed during the robbery.

On redirect examination, Mr. Story testified that he did not know how the front of the

control panel came off. He agreed he would have preferred to control when the Defendant

came to work. He said that he had never seen the people on the porch before December 17

but that they would not have known how to get to the door if the Defendant had not shown

them. He said he was an Air Force veteran of World War II and the Korean War and agreed

the rope he saw on December 27 was white cotton rope. When shown a photograph, he said

it could have been yellow nylon.

Rutherford County Sheriff’s Detective Randy Groce testified that on December 28,

2009, he and Detective Kohler went to the Defendant’s address. He said they were looking

for a parking place when they saw two men in a white Ford truck pull out of the driveway.

He said they followed the truck to a convenience store and obtained the license plate number.

He thought that the truck was registered to Mr. Pittard.

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On cross-examination, Detective Groce testified that the passenger went into the store

and that the men did not appear to be fighting. He said they followed the truck back to the

Defendant’s house, which he said was about one-quarter of a mile from the store.

Rutherford County Sheriff’s Sergeant Chris Owens testified that he and Detective

Steve Brown searched for a white F-150 Ford truck owned by Billy Pittard, which they

located at a business on Pennington, impounded, and searched. He identified a photograph

of the truck. On cross-examination, he said they searched for the truck at a Spring Street

address before locating it at the Pennington address. He said they were asked to locate

Charlie Pittard. He said that to his knowledge, Billy Pittard was Charlie Pittard’s father and

was the registered owner of the truck. He said Charlie Pittard was at the Spring Street

residence when they went there.

Rutherford County Sheriff’s Detective Steve Brown testified that he helped locate the

white Ford truck. He said they received the owner’s consent to search it, which they did at

a sheriff’s facility after the truck was towed. He said that after they found the truck, they

located Charlie Pittard at a home on Spring Street and interviewed him. He said he collected

Mr. Pittard’s clothing and a pair of boots. He said other clothing items were recovered from

the Spring Street home. On cross-examination, he said the clothing he recovered was Mr.

Pittard’s, not the Defendant’s.

Rutherford County Clerk’s Legislative Secretary and Deputy Clerk Rick Spence

testified that as he stepped toward the doorway of his workplace on December 28, 2009, he

saw an insurance card. He said he placed the card in the lost and found drawer. He said that

around 8:00 a.m., he heard Mr. Story’s name in connection with a newspaper article about

the crime and realized the insurance card was Mr. Story’s. He said the police were notified.

On cross-examination, he said his office was two blocks from Spring Street.

Rutherford County Sherrif’s Detective Bryant Gregory testified that he assisted in the

investigation. He said he went to the Rutherford County Clerk’s office and obtained Mr.

Story’s insurance card. He searched the area where the card was found and found several

other items with Mr. Story’s name. He said the Defendant’s name was written on the back

of Mr. Story’s agricultural exemption card. He identified a voter registration card, a dentist’s

card with information about “Cecil’s” appointment, and a medical appointment card with

information about Mr. Story’s appointment. Using a diagram, he identified the locations

where the items were found.

Detective Gregory testified that on December 28, 2009, he interviewed the Defendant

and Corey Foster. He said that on a later date, he interviewed Charlie Pittard and Ashton

Garza. He said Mr. Pittard’s hands and feet were examined and photographed, and he

-12-

identified photographs of Mr. Pittard’s hands and the sole of Mr. Pittard’s shoe. Regarding

photographs of Mr. Garza’s hand, he identified a scratch on Mr. Garza’s pinky knuckle. He

identified a photograph of Mr. Garza’s shoes.

On cross-examination, Detective Gregory acknowledged that he did not find any

physical evidence to connect the Defendant with the crime. He agreed that Mr. Pittard’s

mother lived on Spring Street near where a wallet was found and that Mr. Pittard was

arrested at his mother’s house. He said the Defendant lived about a mile away from where

Mr. Story’s items were found.

Detective Gregory testified that cell phone records for the Defendant, Mr. Garza, and

Mr. Pittard were subpoenaed. He acknowledged the State did not have evidence to show the

Defendant’s cell phone’s movement in relation to the victims’ farm. He said that based upon

his experience, this information was not available unless a call was placed. He said that he

had seen the records that were received in response to the subpoena, that others had reviewed

them, but that he could not interpret the information about the Defendant’s cell phone in

relation to towers.

Detective Gregory testified that no photographs were taken of the Defendant’s hands

and feet. He said that when they first contacted the Defendant, the Defendant stated that he

knew they were coming and that they would not find anything. He said some socks were

found in Mr. Pittard’s truck.

On redirect examination, Detective Gregory agreed that he might be confused about

the socks and that they may have been gloves. He identified the Defendant’s affidavit of

indigency showing that counsel was appointed within the six-month period that the cell

phone records were available and could have been obtained. He agreed that the defense had

been provided with discovery documents that included all the information in the State’s

possession. He said the Defendant mentioned yellow rope, which was a fact that had not

been released to the media or general public. He agreed that yellow rope was used to tie the

Storys and that the rope had their blood on it.

On recross-examination, Detective Gregory testified that he disputed that a person

could be tracked from the person’s cell phone’s location if a call was not placed or received.

On further redirect examination, he agreed that federal agents could track a cell phone’s

location at the present moment but that cell phone companies did not have the historical

information of a cell phone’s location.

On questioning by the trial court, Detective Gregory testified that Mr. Story’s items

were found in bushes and on the sidewalk. He said no wallet was found. He said the yellow

-13-

rope was mentioned in the interview on the evening of December 28, 2009. He said the

Defendant was the first person outside law enforcement to mention yellow rope. On further

cross-examination, he agreed yellow rope was one of the reasons law enforcement thought

the Defendant was involved.

Rutherford County Sheriff’s Lieutenant James Philip Martin testified that he

responded to the scene after the victims were gone. He said two detectives let him through

a gate but did not recall how they opened it. He identified a diagram and photographs of the

scene. He said he photographed the scene and collected evidence. He identified an

extension cord and a telephone cord that were disconnected and a telephone that had been

removed from a wall. He said that drawers were pulled out and that items were in disarray

on the floor. He did not see blood on a telephone or in the victims’ bedrooms. Referring to

a photograph, he identified yellow nylon rope with a red stain and a blood-soaked shirt. He

was told that Mr. Story had worn the shirt. He identified a photograph depicting blood

spatter on a movable cabinet. He said he did not find blood spatter in the kitchen or on the

entry door. He said some blood may have been on a table. He said that he took precautions

to avoid stepping in the blood, that he checked his shoes when he finished processing the

scene, and that no blood was on his shoes. He identified photographs of footprints in the

blood.

Lieutenant Martin testified that a light in the carport had been broken. He identified

photographs of a bloody footprint on concrete and a deck outside the house. He identified

the rope, shirt, telephones, light bulb sensor, and broken light bulb collected at the scene. He

identified a photograph of a package of muffins found outside the house. He said the

telephones and the muffin package were submitted for fingerprint analysis because they were

the items that were more likely to contain fingerprint evidence. He agreed that no bloody

fingerprints were found.

Lieutenant Martin testified that he examined a Ford F-150 truck. He identified

photographs of the truck. He said a shop cloth, shoes, a sock, and gloves were in the

floorboard. He said a wallet was recovered from the truck’s tool box. Disposable gloves

were in the driver’s door. He said that mail in the truck was addressed to Susan Pittard and

that the truck was registered to Billy Pittard at the same address. He said black gloves were

recovered between the driver’s seat and console.

Lieutenant Martin testified that Mr. Garza’s blue Chevrolet Cavalier was impounded

and processed. He identified photographs of the car’s contents, which included clothing,

shoes, a wallet with Mr. Garza’s identification, and papers. He said a pair of jeans from the

trunk contained a reddish brown substance. He identified items of clothing and footwear

relative to Mr. Pittard and the Defendant and oral swabs from the victims that he submitted

-14-

for testing. He identified blood standards collected from Mr. Pittard, Mr. Garza, and the

Defendant. He identified Mr. Pittard’s, Mr. Garza’s, and the Defendant’s cell phones. He

said that the gate’s control panel cover was processed for fingerprints but that none were

found. He stated that the cover was found on the ground but that the wires and the box did

not appear to be damaged.

On cross-examination, Lieutenant Martin did not recall any forensic evidence

implicating the Defendant. He said the drive from the Sheriff’s Department to the victims’

house would take about thirty minutes. He agreed that the victims’ house appeared as if

someone was looking for something or wanted to disable the telephones. He said a large

quantity of dried blood was on the tile by the kitchen table.

On questioning by the trial court, Lieutenant Martin testified that he was 6'2" and

could walk underneath the pitched roof of the victims’ carport. He said the roof partially

blocked the view from the door. He did not know which telephone Ms. Story used to call 9-

1-1. He said he arrived at the victims’ house around 10:00 or 11:00 on the night of the

crimes. He did not recall any lights other than the broken one in the carport and said the

house was surrounded by trees.

Tennessee Bureau of Investigation (TBI) Forensic Scientist Miranda Gaddes, an

expert in trace analysis, testified that she compared photographs of bloody footprints with

shoes collected from the Defendant, Mr. Pittard, and the Cavalier. She said that seven shoe

impressions were consistent with one of the shoes from the Cavalier but that due to the lack

of individual characteristics, a more conclusive comparison was not possible. She said one

of the impressions could have been made with the other shoe from the Cavalier. She said Mr.

Pittard’s boots and shoes and the Defendant’s shoes could not be matched to any of the

impressions.

The parties stipulated that if TBI Forensic Scientist Jennifer Spivey, an expert in

fingerprint examination and comparison, were called as a witness, she would testify to facts

in her report, which stated that no identifiable latent fingerprints were found on the

telephones and the muffin box from the scene. Her report was received as an exhibit.

TBI Agent Michael Turbeville, an expert in serology and DNA analysis, testified that

blood with Mr. Story’s DNA profile was on the shoes and jeans from the Chevrolet Cavalier.

He said Mr. Garza’s DNA was on the pocket of the jeans. A yellow rope contained the

victims’ DNA profiles. He analyzed three disposable gloves, and none contained DNA

profiles of the victims, the Defendant, Mr. Pittard, or Mr. Garza. One of the gloves

contained the DNA of an unknown male, and one contained the DNA of the same unknown

male and an unknown female. His report was received as an exhibit.

-15-

On cross-examination, Agent Turbeville testified that a presumptive test did not show

blood on the Defendant’s cell phone. He said the Defendant’s DNA was not found on the

gloves from the Ford truck. He agreed that the victims’ DNA was not found on any evidence

collected from the Defendant and that the Defendant’s DNA was not on other evidence

examined.

Rutherford County Sheriff’s Department Systems and Training Coordinator David

Hutsell testified that he was the records custodian as part of his job duties. He said that

according to the sheriff’s records, the Defendant and William Eisenmann were jail inmates

and shared a cell from March 26 through 29, 2010.

William Eisenmann testified that he and the Defendant were inmates in the Rutherford

County Jail. He said he was incarcerated for driving under the influence and acknowledged

that he had been in jail before and after his incarceration in the medical pod with the

Defendant. He said he was in the medical pod due to emotional stress from his brother’s

illness, which proved fatal. He admitted having three convictions for passing worthless

checks and one conviction for theft. He said that one of the first things the Defendant said

to him after they were placed in the cell together was, “Robbery is just robbery, isn’t it?” He

said that over the course of a couple of days, the Defendant explained his robbery in detail.

Mr. Eisenmann said he had been in jail for about 100 days and did not have access to a

television or newspapers.

Mr. Eisenmann testified that the Defendant said he was responsible for the “Eagleville

robberies” but that Mr. Eisenmann did not know what he meant. He said he concluded that

the Defendant “was highly intelligent in robbing” because the Defendant explained how he

had committed the crimes and made sure no possibility existed of his being apprehended.

He stated:

[H]e told one individual that he had gotten that he was going to threaten them

with a knife if they didn’t participate and help. And then the other one he

threatened with a shotgun. And he said he had took somebody’s life in another

state and that he’d do the same thing with that individual if he didn’t cooperate

or help. This is just to say that if they were apprehended that they’d have

different stories. They wouldn’t be able to put the same story together. And

this is just what he said. He drugged his woman. Used his woman as an alibi.

Left after she was passed out and came back. If they had any kind of lie

detector test, where was he, I was home the whole time. . . . That he had met

these individuals at church. And as church people do they looked out and tried

to help him. Bought him some tools. Put him to work. And then he went

ahead at [sic] sold the tools. And then later on came back. I mean he was

-16-

fixing up their house, working for the guy. He was getting paid money. And

from my understanding from what he said is that while he was there he was

being able to see what they had inside the house and whether or not what he

wanted to do anything more. By meaning, you know, rob them. Take their

stuff. And that’s exactly what they did. And they went and borrowed the

guy’s truck. The daddy’s truck from my understanding. . . . Went to the

house. Got the older man to the door. Convinced him that his cows were out

in the road or whatever. And then they went ahead and they took over the

house from there. And subdued him. Subdued the wife. And got whatever

they got out of the house.

Mr. Eisenmann testified that he was in a cell with the Defendant for about four days

after the Defendant told him about the robbery. He said that when he saw the Defendant a

couple of weeks later, the Defendant told him the female victim died. He said that the

Defendant was happy because “[i]t made his case stronger” and that the Defendant wished

the male victim would die, too. He said that he decided to come forward because of the

Defendant’s happiness about Ms. Story’s death and that on the day he was released, he told

his attorney to contact the district attorney. He said that he requested that his probation in

four different counties be consolidated in order for him to report to one probation officer but

that his request had not been granted.

On cross-examination, Mr. Eisenmann testified that when he told his attorney to

contact the district attorney, a plea agreement had already been reached for him to be released

on time served. He denied that he was offered reduced jail time in exchange for his

cooperation. He said he did not read other inmates’ newspapers when he was in jail. He said

the Defendant did not specify who knocked on the Storys’ door or “took the first hit.” He

said the Defendant stated that three people were present. When asked about prior testimony

in which he stated that the Defendant said the Defendant knocked on the victims’ door, he

said, “That is not what I said.” He said the requirements for two of his probation sentences

had been combined. He denied that he offered to testify against another inmate with whom

he had contact. He denied that the other inmate admitted to him that he killed his wife or told

him any facts about her death.

On redirect examination, Mr. Eisenmann testified that he did not know with which

district attorney his attorney discussed his plea agreement or violation of probation. He said

he did not receive a “deal” for his testimony. He agreed he did not have a felony conviction.

Referring to his prior testimony, he agreed he had said the Defendant and two men went to

the victims’ door, that one of them knocked, and that Mr. Story came to the door. He said

the Defendant did not tell him who knocked. He said the Defendant claimed to have “put

together” the plan to rob the victims.

-17-

Michael Loyd testified that he knew the Defendant because the Defendant’s wife and

Mr. Loyd’s former wife worked together. He said he met the Defendant after the Defendant

was paroled from Pennsylvania. He said that he had attended Eagleville Church of Christ

all his life and that the Defendant attended for a time with him. He said the Defendant was

baptized. He said that he had known the victims all his life and that his grandfather and Mr.

Story had been friends.

Mr. Loyd testified that on December 27, 2009, he was at the Defendant’s house

playing poker until about 7:00 or 8:00 p.m. He said the Defendant, “Reggie,” and Charlie

Pittard were at the Defendant’s house when he was there. He went to his sister’s house and

went home between 11:00 p.m. and midnight. He said that when he was home, he received

a text message from the Defendant asking for a cigarette but that he did not respond. He said

that he learned about the crimes on the evening of December 28 and that he called the

Defendant, who sounded “genuinely concerned.” He said that he told the Defendant “that

it was f----- up what happened to those people” and that the Defendant responded, “I haven’t

done nothing. You can take pictures of my hands.” He thought this was strange and said he

was not trying to accuse the Defendant.

Mr. Loyd testified that he and the Defendant corresponded by mail when the

Defendant was in jail. He said that the Defendant made a statement of interest to the district

attorney in one of the letters but that he had been unable to find the letter. He said things

were moved at his house when he and his wife separated and when his house was

burglarized. He said his girlfriend read the letter. He said that before he received the letter,

he had written to the Defendant and asked why the crimes happened to the victims, who were

good people, and stated that he would have given the Defendant money. He said the

Defendant responded in reference to the night of the crimes, “[Y]ou know I would never hurt

those people. I didn’t do this. . . . I went out there to steal copper and a generator, but I come

[sic] home and I did not hurt those people.”

On cross-examination, Mr. Loyd testified that he received about six letters from the

Defendant. He said the letter about the night of the crimes was the only one that he had not

provided to the district attorney. He agreed the police investigated after the burglary at his

house and said he did not know if they took the letter.

Mr. Loyd testified that he knew Mr. Pittard through the Defendant, that they were not

friends, and that he had been around him a couple of times. He said he met Mr. Garza once,

through the Defendant.

Leah Guill, Mr. Loyd’s fiancee, testified that she had met the Defendant’s wife once

but did not know the Defendant. She said that after she began living with Mr. Loyd, she

-18-

became aware he received letters from the Defendant. She said that at first, Mr. Loyd did not

write to the Defendant. She said the first letter she read stated that the Defendant went to the

Storys’ farm to steal copper and a generator but that he would not hurt them and “didn’t do

that” to them.

On cross-examination, Ms. Guill testified that she read the Defendant’s other letters.

She said that the Defendant said he went to the farm to steal copper and a generator and that

she thought he meant on the night of the crimes. She said that she did not know what

happened to the letter, that they had moved twice, that they had a baby, and that their house

was burglarized. She thought two letters were missing. She said the police photographed

damage at her home but did not collect evidence.

James Pittard1 testified that he had been in jail since his arrest for the present case.

He said that on December 27, 2009, he lived with his father, Billy Pittard. He said he had

“[e]xtremely bad” asthma that required a nebulizer and inhalers. He said that his financial

condition was poor in December 2009 and that he had not worked for almost a year.

Mr. Pittard testified that he was at the Defendant’s house in the late afternoon or early

evening on December 27, 2009. He said that he had known the Defendant for about one and

one-half months, that he had met Mr. Garza a few times, and that the Defendant and Mr.

Garza were closer than he and the Defendant were. He stated that a person named Mike,

who he thought was Mr. Loyd, “Pat,” and “Reggie” were there playing poker and that

Courtney Damon was there. He did not know Reggie’s last name. He did not recall when

the poker game ended but said he remained at the house with the Defendant, Ms. Damon, and

their son after the others left.

Mr. Pittard testified that the Defendant’s financial condition was poor. He said the

Defendant made statements about going to Woodbury to get some four-wheelers and dirt

bikes. He said the Defendant winked at him, which meant the Defendant wanted to steal

them. He said he treated the Defendant’s statement as a joke because the Defendant had not

previously said anything of this nature.

Mr. Pittard testified that he and the Defendant left the Defendant’s house in his

father’s F-150 truck around 8:30 or 9:00 p.m. to go to Walmart. He said Ms. Damon asked

if he would buy groceries for the child. He said that as he looked for a parking space at

Walmart, the Defendant asked if he wanted to go with him to steal money and a valuable

1

The witness identified himself as James Pittard. Other witnesses referred to Charlie Pittard and

Charles Pittard, James Charlie Pittard, and James Charles Pittard. The indictment lists James C. Pittard as

a codefendant. It appears that all refer to the same person.

-19-

guitar. He said the Defendant stated the owners were on vacation. He did not know the

Defendant was talking about the Storys and did not know where they lived. He said he

agreed. He said that the Defendant called Mr. Garza and that they went to get Mr. Garza.

He said that the Defendant and Mr. Garza talked outside the car, that he could not hear the

conversation, and that Mr. Garza and the Defendant got into the truck, which he drove. He

said the Defendant gave him directions to the Storys’ house, which they reached around 9:30

p.m.

Mr. Pittard testified that he parked the truck and that he and Mr. Garza put their socks

on their hands at the Defendant’s instruction. He was unsure if the Defendant knew there

were gloves in the truck. He thought the Defendant wore gloves. He said they jumped over

a fence and did not disturb a metal box. He said he had an asthma attack as they jumped over

the fence and panicked. He said that as they walked to the house, he did not know if anyone

had a rope. He said that he heard barking dogs and that the Defendant said the dogs would

not bite.

Mr. Pittard testified that when they reached the house, Mr. Garza went up the steps

while he and the Defendant stood below them. He said Mr. Garza knocked on the door and

told Mr. Story that his cattle were on the road. He said that Mr. Garza hit Mr. Story and that

the Defendant pushed him up the steps. He said that Mr. Story was on the ground when he

entered, that Mr. Garza was putting Ms. Story on the ground, and that he held down Mr.

Story. He said the Defendant entered the room, threw the rope, and told him and Mr. Garza

to tie up the victims. He thought the rope had been in his father’s truck. He said Mr. Garza

tied up the victims. He said that the Defendant went to another room and that he did not see

him again inside the house. He stated that they were in the house a few minutes, that he was

scared, and that his chest was tight. He said he ran outside because he was scared. He said

he heard yelling and “[s]truggles” as he left. He said he planned to leave with or without the

Defendant and Mr. Garza, but he kept having to stop to catch his breath because of his

asthma. He said that they ran up behind him, that the Defendant tried to pull him, that they

ran ahead of him, and that the Defendant got into the driver’s seat of the truck. He stated that

he was in the front passenger seat and that he did not see any property that might have been

taken from the Storys’ home.

Mr. Pittard testified that he told the Defendant he thought he should go to the hospital

due to his asthma. He said the Defendant told him “no” and seemed unconcerned. He said

the Defendant stated that he had to get home first. He said the Defendant got out of the truck

at the Defendant’s house and that he and Mr. Garza went to Mr. Pittard’s aunt’s house for

him to use his nebulizer. He said his sister saw blood on his pants and asked what it was, but

he told her “not to ask what she didn’t want to know.” He said he took Mr. Garza home and

changed clothes. He said that he saw Mr. Garza throw out something when they were near

-20-

his aunt’s house on Spring Street, that he asked what it was, and that Mr. Garza said it was

his socks. He said that after he dropped off Mr. Garza, he returned to his aunt’s house, where

he spent the night. He said his clothes were washed before they were given to the police.

He said he felt bad about what happened to the victims. He said he had not been offered

anything for his testimony. He agreed that although he did not assault anyone, tie up anyone,

or take any property, he was guilty of the offenses.

Mr. Pittard testified that the Defendant was in charge on the night of December 27,

2009. He said he and Mr. Garza did what the Defendant said. He said he voiced second

thoughts to the Defendant after they left Walmart. He said the Defendant asked him if he

would I rather get his throat cut or have the Defendant “go after” his wife and son. He said

he saw the Defendant the next day around 10:00 a.m. when he went to pick up his inhalers

and nebulizer at the Defendant’s house. He said that at Ms. Damon’s request, he went to a

market to buy groceries for the Defendant and Ms. Damon’s child.

Mr. Pittard testified that when they were at the victims’ farm, the Defendant stated

that he knew the code to open the gate but told them to jump the fence. He said that when

he realized people were in the house, he did not think he could back out. He said he was

afraid for his wife and son.

On cross-examination, Mr. Pittard testified that he had financial difficulties at the time

and agreed he told a deputy at the jail that he committed the crimes for the money. He agreed

he sometimes stayed overnight at the Defendant’s house. He said that he and his wife lived

with his father but that they were having marital difficulties and that she often stayed with

her mother. He agreed that he knew Cory Foster and that Mr. Foster had worked for the

Storys. He said he did not drive away when the Defendant was out of the truck talking to Mr.

Garza at Mr. Garza’s house because he was thinking about what might happen to his family

later. He did not see the Defendant with a knife or a gun that night. He denied taking the

Defendant to the Storys’ farm several times after the Defendant’s car was repossessed. He

denied cutting trees for the Storys.

Mr. Pittard testified that from Mr. Story’s point of view at the door, he would have

seen only Mr. Garza. He agreed there was a lot of blood on the floor when he held down Mr.

Story as Mr. Garza tied up Ms. Story. He agreed he kneeled in the blood with his right knee

but did not think he stood in the blood. He agreed he asked his mother to wash his clothes

later that night. He said his mother was unaware of the circumstances. He said he told his

mother he helped someone and got blood on him. He agreed that he helped move the

Defendant and Ms. Damon’s household belongings about a week before the crimes and the

Defendant saw the rope Mr. Pittard’s father kept in the truck. He did not recall helping the

Defendant make a rope swing a few days before the crimes. He did not recall any

-21-

conversation about going to the victims’ farm to steal a generator. He stated that he did not

see the rope as they were walking down the victims’ long driveway and that he first saw it

when the Defendant threw it at him and Mr. Garza. He said the Defendant ran through the

kitchen while telling Mr. Garza and him to tie up the victims. He said that Ms. Story was

conscious, that Mr. Story was conscious but lay still on the floor, and that both would have

been able to hear their voices. He said he and Mr. Garza wore hoodies and thought the

Defendant wore a toboggan but said the Defendant’s face was not covered. He said nothing

was put over the victims’ faces. He said the victims could not move their heads because they

told them not to move.

Mr. Pittard agreed that he and Mr. Garza were confined to the same Rutherford

County Jail pod for a few minutes but said he did not know Mr. Garza was there until after

Mr. Garza moved. He said they were in the same pod in the Cannon County Jail for about

six days. He agreed he and the Defendant were together for four or five hours on December

28, 2009. He agreed that although he had not received special treatment for his testimony,

he “prayed” the district attorney would take it into account in disposing of his charges.

Mr. Pittard testified that he and Mr. Eisenmann were in a Rutherford County booking

cell together on the day a previous trial began. He said that Mr. Eisenmann asked him about

his case but that he told him he did not want to discuss it. He agreed, though, that they

discussed a “little bit about it.” He said Mr. Eisenmann was in the Cannon County Jail but

in a different pod. He agreed that he and Mr. Foster were friends and that Mr. Foster knew

where the victims lived. He said that despite his financial condition, he was not worried

about getting money from the victims once the Defendant threatened his family and that he

participated because of the threat.

On redirect examination, Mr. Pittard testified that he was in the pod with Mr. Garza

within the first week he was in jail. He thought he gave his statement on December 30, 2009.

He was unsure if the rope came from the truck but thought it did. He said the Defendant’s

only statement in the victims’ house was, “Tie them up.” He said they kept the victims’ faces

down. On recross-examination, he agreed it would not have taken long for the Defendant

to grab the guitar and follow him when he ran from the house. On questioning by the trial

court, Mr. Pittard said it was dark when they were at the victims’ house.

Rutherford County Sheriff’s Detective Gregory Tillman was recalled by the State and

testified that he and Detective Kohler interviewed the Defendant on December 29, 2009. He

said the Defendant was advised of and waived his Miranda rights. An edited version of the

video statement was played for the jury in two segments. In the first segment, the Defendant

said he was not present for the crimes but knew “everything.” He offered to wear a recording

device in order to obtain incriminating evidence from the people involved. He offered to let

-22-

a detective go with him. He said he would not flee if he were released and insisted the

detectives guarantee he could go home to his family that night. He declined to give any

information about the crimes.

Eventually, when the Defendant was asked for specific information, he said the

victims were tied with a yellow rope. He said that he was at home on the night of the crimes

and that he played poker with Mr. Loyd and Reggie Haynes. When asked why everything

on December 28, 2009, and earlier was deleted from his cell phone, he said he “always”

deleted calls due to the volume and his wife’s suspicions he was unfaithful to her. He agreed

Mr. Story had been good to him and said he felt bad the crimes happened to Mr. Story. He

continued to deny he was at the victims’ house on the night of the crimes and said he had

never touched the victims. Detective Tillman testified that he knew little about the case

when he agreed to assist Detective Kohler with the interview and that he was surprised when

the Defendant mentioned the yellow rope.

In the second segment of the video recording, the Defendant stated that he “knew

everything” about the drug dealers on his street. He said that when Mr. Loyd told him about

what happened to the victims, Mr. Loyd said the police would probably want to talk to the

Defendant. He said he knew “the whole f------ story” about the crimes. He said that

although he felt bad for Mr. Story, he was concerned for his family. He continued to insist

he would not reveal any information unless he was released and said that the police would

not solve the crimes without his help. He said the person who committed the crimes was too

“good” to be caught otherwise. He said rope was left at the scene. He said that he knew Mr.

Story did not have money in his house but that Mr. Story had a $250,000 or $275,000 guitar

and a fiddle. He said that every time Mr. Story paid him, he gave him a few dollars and

wrote him a check. He said Mr. Story never had much cash. He restated his “offer” that he

be released in exchange for getting an incriminating statement from the perpetrator of the

crimes. He said he would not say anything unless he received a guarantee he could go home.

He said he could get the perpetrator’s clothes. He said that he did not hurt or tie up the

victims and that he was not present. He said that if he were asked names, he would not

identify the people responsible. He said Mr. Loyd told him the victims were tied up and

beaten.

On cross-examination, Detective Tillman agreed that to his knowledge, the Defendant

was not allowed to wear a recording device to try to get incriminating statements from the

people involved in the crime. He interpreted the Defendant’s statements to indicate that the

Defendant thought he was in the situation because of his friends.

-23-

On redirect examination, Detective Tillman testified that he did not allow the

Defendant to wear a recording device because he thought the Defendant’s offer was to avoid

the interview. He thought the Defendant was a flight risk and a danger to society.

Rutherford County Sheriff’s Detective Steve Kohler testified that he was the lead

investigator in the case and was called to the victims’ house on December 27, 2009. He said

that Detective Mayercik was present and that the victims were no longer there. He said they

collected and documented evidence. After being at the home for three to four hours, he went

to a local hospital to see the victims but learned they had gone to Vanderbilt Hospital because

Mr. Story required further treatment. He arrived at Vanderbilt Hospital around 4:30 a.m. He

said that Mr. Story appeared to have been “severely beaten” and that he decided he should

speak with Mr. Story later about the details of the crimes.

Detective Kohler testified that around 8:00 a.m. on December 28, 2009, he went to

Eagleville Church of Christ and spoke with Rev. Lawyer about what had happened. He said

Rev. Lawyer provided him with a church directory, showed him a photograph of the

Defendant and the Defendant’s family, and talked with him about the Defendant.

Detective Kohler testified that he returned to the victims’ home to look for any

evidence the police might have missed. He said Mr. Barnes, John Story, and Rev. Lawyer

were cleaning the house. He said that after he left the house, he asked another officer to

research the Defendant’s identifying information. He and Detective Randy Groce went to

the Defendant’s address about 3:00 p.m. He said they saw a Ford truck arrive and a person

who resembled the Defendant get into the truck. He said they followed the truck to a store

and saw the Defendant go inside to make a purchase. He said he obtained the license plate

information, which showed the truck was registered to Billy C. Pittard, Charles Pittard’s

father. He agreed this was the first information connecting Charles Pittard to the crimes. He

did not think there had been any newspaper accounts of Billy Pittard’s name or his ownership

of the truck that was used in the crimes. He did not think the information had been made

public.

Detective Kohler testified that on December 29, 2009, at 9:30 a.m., he was notified

that a person in the clerk’s office had found some of Mr. Story’s belongings. He said the

Defendant’s name was written on the back of one of the items. He agreed the items were

found “fairly reasonably close” to Mr. Pittard’s aunt’s house on Spring Street.

Detective Kohler testified that he and other detectives searched the Defendant’s house

after receiving his consent. He said that the Defendant stated that they could search all day

long but that they would not find anything in his house because he was smarter than that. He

said the Defendant stated that if he committed a crime of this nature, he would have disposed

-24-

of the evidence. He said they inspected the clothes the Defendant wore and the clothes in the

house for possible blood stains but did not collect any evidence. Regarding the Defendant’s

interview, he agreed he was involved in a discussion about the Defendant’s being allowed

to leave and wear a “wire” and said they decided not to allow it. He said the information

about a yellow rope was a “very closely guarded secret” when the Defendant mentioned it.

He agreed the Defendant told the authorities he could get the people involved and their

clothes from the crimes. He considered it evidence that no blood was on the violin and the

guitar and said he would expect to find blood on them if a person participated in subduing

and restraining the victims and touched the violin and the guitar. He considered it evidence

that no blood was in the ransacked rooms. He agreed no physical evidence connected Mr.

Pittard to the crimes.

Detective Kohler testified that the Defendant’s cell phone records showed that his cell

phone was not used between 9:17 p.m. and 10:12 p.m. on December 27, 2009. He said the

Defendant made a call to #777 at 10:12 p.m. He did not know the meaning but said it was

a code. He said he was unable to determine a person’s location using cell phone records if

the person was not using his cell phone. He said cell phone records showed calls between

the Defendant and Mr. Garza throughout the day. He said that a call was placed between the

Defendant and Mr. Garza at 10:33 p.m., that calls were placed between the Defendant and

Mr. Pittard at 9:17 p.m. and 10:32 p.m., and that he thought calls were placed between Mr.

Pittard and Mr. Garza.

Regarding his own Verizon cell phone, Detective Kohler testified that he pushed 7 to

erase a voice mail message and play the next message. He said #777 could indicate a person

erasing messages, but he did not know if all cell phones operated the same way.

Detective Kohler testified that he met Mr. Eisenmann through an assistant district

attorney general when Mr. Eisenmann was in jail a couple of months after the crimes. He

said that on a previous date when Mr. Eisenmann was being released from jail, Mr.

Eisenmann contacted the assistant district attorney general and said he had information of

interest and provided his contact information. He said Mr. Eisenmann contacted the assistant

district attorney general later and talked to him. He said that Mr. Eisenmann later came back

to jail as an inmate and that at that point, Detective Gregory, the assistant district attorney

general, and he talked to Mr. Eisenmann about information related to the crimes. He stated

that they also talked to him again in preparation for an April 2011 proceeding and that Mr.

Eisenmann provided consistent information. He said Mr. Eisenmann told them prior to the

April 2011 proceeding that he had never met Mr. Pittard. He said Mr. Eisenmann’s previous

statements were consistent with his trial testimony. He said no information was released to

the public or the media about the Defendant’s selling some tools. Regarding Mr. Pittard’s

testimony about meeting Mr. Eisenmann in a booking cell, he said inmates were held there

-25-

before being brought to the judicial building where the court was located. He said that he

was involved in several interviews of Mr. Pittard before his testimony in April 2011 and that

Mr. Pittard had not added anything to his testimony at the present trial from anything he

previously told Detective Kohler.

On cross-examination, Detective Kohler testified that although he received

information about the location of the cell phone towers used for Defendant’s calls, he did not

have the subpoenaed documents with him. He estimated it would take fifteen minutes on a

Sunday night to travel from the victims’ farm to Murfreesboro. He did not think it was

unusual for a person to call others to establish an alibi or to ensure no one was going to talk

about the incident. He learned that Cory Foster had worked at the Storys’ farm but said Mr.

Foster was never a suspect. He agreed Mr. Foster had property from the Storys’ farm in his

possession but said they could not verify it was stolen. He agreed the Defendant was arrested

about one and one-half days after the crimes but did not know if this explained why the

Defendant never returned to the Storys’ farm to work.

Detective Kohler testified that although he did not see Mr. Pittard on December 28,

2009, when he followed the white truck in which the Defendant was the passenger, he

learned through the investigation that Mr. Pittard had been the driver. He said that within the

past few weeks, he searched for a fire box or jewelry buried in the Storys’ barn but did not

find anything.

On redirect examination, Detective Kohler testified that he did not know of any calls

to Mr. Pittard and Mr. Garza on the night of December 27, 2009, other than from the

Defendant. He agreed that the 9-1-1 call was received at 10:13 p.m. and that the Defendant’s

cell phone was active at 10:12, 10:32, and 10:33 p.m. He said the calls “pinged,” or

operated, through a cell tower “a few miles” from the Defendant’s address. He said that

when he was at the Storys’ farm on the day after the crimes, he did not see the Defendant and

that the Defendant never explained his absence. On questioning by the trial court, he said

the Defendant’s call to Mr. Pittard at 10:32 p.m. lasted five seconds.

The thirty-eight-year-old Defendant testified that he was separated from his wife,

Courtney Damon, and that they had a four-year-old son. He said he had been incarcerated

for most of his life and had not been employed other than in minimum-wage odd jobs. He

had never been diagnosed with an intellectual disability. He said that he had been

incarcerated for fighting and stealing and that he stole when he was desperate for money.

He said he also had a conviction for possession of marijuana “with the intent . . . to grow it”

and “fleeing from the police.” He said he tried to fake a urine test at his parole hearing

because he had used drugs. He said he was “very high” when he gave his video statement

to the detectives.

-26-

The Defendant testified that he had associated with Mr. Pittard, Mr. Garza, and Mr.

Foster but that he thought at the time they were his friends. He said that he met Mr. Foster

after the Defendant was paroled, that Mr. Foster sold marijuana, and that they smoked

marijuana together. He said he later met Mr. Pittard and allowed Mr. Pittard to stay at his

house because Mr. Pittard had marital difficulties and had no place to live. He stated that he

bought marijuana, Xanax, and narcotics from Mr. Garza but that they were not close friends.

He said Mr. Garza was not allowed at his house because Ms. Damon did not like him. He

admitted he sometimes used money that people gave him for drugs rather than food for his

child. He said that although he had stolen, he had never done anything like beat up an elderly

couple. He said he did not have anything to do with the crimes. He agreed he talked

extensively to Mr. Pittard but not Mr. Garza about his work for and association with the

victims. He said Mr. Pittard helped herd the Storys’ cattle in December 2009. He said he

did not “put Pittard up” to robbing the victims and did not know that Mr. Pittard and Mr.

Garza were going to rob the victims. He said that when he talked to them by cell phone that

night, he did not know what they had just done. He said he suspected by early morning on

December 28 that Mr. Pittard had been involved but not Mr. Garza.

The Defendant testified that he had last been to the victims’ house two or three days

before Christmas and had dinner with them. He said he met Mr. Story when he began going

to church. He said Mr. Story gave him $40 because he was going to work for Mr. Story the

next day. He said that Mr. Story asked him to return and that he kept going because he

needed the money. He said that if the crimes had not occurred, he would still be working for

the Storys. He said no tension ever existed between him and the victims. He said that Mr.

Story paid him $100 a day but that he did twelve hours’ work. He said that the victims were

“great” to him and that he had no reason to commit the crimes. He said he was at the farm

almost daily and was unaware he annoyed them. He said his family had dinner with the

victims three times and went to the farm other times. He said his son called Mr. Story

“Papa.”

The Defendant testified that Mr. Story liked to talk about his nice possessions. He

said that the guitar did not look valuable but that Mr. Story told him it was worth $70,000 to

$75,000. He acknowledged he knew the code to the gate. He said he had enough common

sense to cover his face if he were to rob someone. He said that if he were going to commit

a robbery, he would rob a liquor store or a gas station, not someone who knew him. He had

never seen a generator at the Storys’ farm. He said that he put copper from the farm in the

trunk of Mr. Foster’s car, that Mr. Foster’s father was in the HVAC business, that Mr. Foster

said he could get rid of it, and that he should not have done it. He denied taking gas from the

farm and said Mr. Story gave him gas if he needed it.

-27-

The Defendant testified that he never wrote letters to Mr. Loyd saying anything other

than he was not guilty. Explaining his letters, the Defendant said that Mr. Loyd had tried to

help him turn his life around, that he felt like he had let down Mr. Loyd, and that he wanted

Mr. Loyd to pray for him because he was in jail away from his family. He acknowledged he

talked to Mr. Eisenmann while they were in a jail cell together. He said he never talked

about the crimes because he was innocent.

The Defendant testified that he knew about yellow rope in Mr. Pittard’s father’s truck

from having helped his sister-in-law, Michelle Cole, move two weeks before the crimes and

from building a swing for his son two or three days before Christmas. He said he used a tool

from the truck and asked Mr. Pittard if he could use the rope for the swing.

The Defendant testified that Mr. Pittard was at his house on December 26, 2009, and

spent the night. He said that on December 27, 2009, he played with his son and watched

television with his wife and son. He stated that he had no contact with Mr. Garza on

December 26 but that on December 27, he talked by telephone to Mr. Garza about bringing

him pills or a “blunt.” He said he played poker with Mr. Loyd, “Pat,” and “Reggie.” He said

that after Mr. Loyd, Pat, and Reggie left, he asked Mr. Pittard to take him to Walmart, where

he bought Christmas gifts. He stated that Mr. Pittard took him home, that he watched

television with his wife and son, and that he did not leave the house or his wife’s presence

again. He said Mr. Pittard drove Mr. Pittard’s father’s truck that night. He said that Mr.

Pittard left his house around 8:30 or 9:00 p.m. and that he had no concerns about where Mr.

Pittard was going. He said he talked to Mr. Pittard and Mr. Garza by telephone. He stated

that he awoke about 1:30 or 2:00 a.m., that his wife was awake because their son had wet the

bed, and that he went to the doorway to smoke. He saw Mr. Pittard pull up between 1:30 and

2:15 a.m. He said he was with his wife and son all night. He was unsure if his wife was

awake when Mr. Pittard arrived.

The Defendant testified he had a Cricket cell phone on December 27, 2009. He said

he did not loan his cell phone to anyone that night. He said the call he made at 10:33 p.m.

was to get drugs and denied he became aware of any crimes against the victims as a result

of the call.

The Defendant testified that Mr. Pittard was nervous when he returned. He said that

although Mr. Pittard always wore black boots, he was wearing tennis shoes. He said that he

asked where Mr. Pittard’s boots were and that Mr. Pittard told him not to ask what he did not

want to know. He said Mr. Pittard stated, “I f----- up.” He said Mr. Pittard did not mention

the victims. He stated that he questioned Mr. Pittard about his statement and his boots and

that Mr. Pittard said he had done something “serious.” He said Mr. Pittard stated that he

-28-

made an error by leaving something behind but did not explain what happened. He said he

eventually went back to bed with his wife and son.

The Defendant testified that he learned about the crimes when Mr. Loyd called him

around 8:00 a.m. on December 28, 2009. He said he was getting ready to go to a parole

hearing. He acknowledged that he had drugs in his system and that he planned to use a

Visine bottle with his son’s urine for the drug test at the parole hearing. He said Mr. Loyd

told him that the victims had been bound and beaten, that there was a lot of blood, and that

the people who committed the crimes would be apprehended. He said he “put two and two

together” and suspected but did not confront Mr. Pittard. He said he was more concerned

about his parole hearing.

The Defendant testified that in the days after December 27, 2009, Mr. Pittard did not

seem afraid of him. He said, though, that the only contact they had was on December 28,

when Mr. Pittard gave him a ride to a store and “hung out and watched TV” at his house. He

said he did not question Mr. Pittard about the “Story incident” because he did not want to

know. He said he had been in trouble most of his life and did not want to be involved. He

thought Mr. Pittard left on the morning of December 28 to take Mr. Pittard’s father to work.

He said Mr. Pittard did not have a car but was permitted to use Mr. Pittard’s father’s truck

if Mr. Pittard transported his father to and from work.

The Defendant testified that Mr. Foster called the police to identify Mr. Pittard, Mr.

Garza, and the Defendant as the perpetrators. He said Mr. Foster wanted a reward. He said

he met Mr. Foster through Mr. Pittard.

The Defendant testified that after he was caught with the Visine bottle of his son’s

urine, he was questioned by Detectives Kohler and Gregory as shown on the video recording

previously played for the jury. He acknowledged his use of profanity in the interview was

“obnoxious” but said he was truthful with the detectives. He agreed that if he had been

involved in the crimes, he would have been concerned about offering to wear a recording

device, knowing what Mr. Garza and Mr. Pittard might say could incriminate him. He said,

though, he had no hesitation about offering to wear a recording device.

The Defendant testified that he had stolen “hundreds” of times. He said he would

never beat up an elderly couple who had treated him as the Storys did. He said his only

violent crime involved a fight with a man. He said he would not steal from people he knew.

He stated that working for the Storys was his only source of income and that he would have

been at their house the day after the crimes if he had not been “locked up.” He said that he

should have told the detectives the truth and that he wanted a guarantee he could go home

to his family.

-29-

The Defendant testified that Mr. Garza thought he was better than others because his

family was in law enforcement. He said that if he had been involved, he would not have

gone to his parole hearing. He denied that he drugged his wife to keep her from knowing his

whereabouts on the night of December 27, 2009. When asked why Mr. Foster was never a

suspect in the crimes, he thought it was because Mr. Foster identified him. He said Mr.

Foster stated he had not received a reward. He said that he needed money on the date of the

crimes but that he had a little money. He said he would probably still work for Mr. Story if

the crimes had not happened. He agreed he had opportunities to steal from the victims when

he was in their home. He could not think of any motive to be involved in the crimes with Mr.

Pittard and Mr. Garza.

On cross-examination, the Defendant testified that he took copper from the Storys.

He agreed he was “pretty good” at stealing because he had only been caught a few times. He

said he was unable to visit the victims as soon as he heard about the crimes because he did

not have a car. He stated that he and Mr. Loyd were going to go to Vanderbilt Hospital after

Mr. Loyd finished work but that he was unable to go due to his parole hearing. He later

acknowledged that he was mistaken about the date of the parole hearing and that he did not

visit them on Monday before his parole hearing on Tuesday. He said he could not have

obtained a ride to visit the victims from the person who took him to the parole hearing. He

said Mr. Loyd decided not to visit the victims after work on Monday.

The Defendant testified that he moved to LaVergne, Tennessee, in 2005 or 2006. He

moved to Murfreesboro in May 2009 when he was paroled from Pennsylvania and lived in

two apartments at the same address in Murfreesboro. He said he met Mr. Story within two

weeks of moving to Murfreesboro. He said that he was “clean” when he was released from

prison but that he began smoking marijuana with Mr. Loyd within two weeks of his release.

He stated that he had never tried to falsify a drug test before he was caught and that Mr.

Foster instructed him how to do it. He said that after the drug test, Detective Kohler took

him home and wanted to search his house for drugs. He said he admitted marijuana and drug

paraphernalia were at his house. He said he gave the marijuana to Detective Kohler, but he

also said Detective Kohler found marijuana under a candle. He said Rev. Lawyer identified

him as a suspect to Detective Kohler. He said Rev. Lawyer, not Mr. Loyd, introduced him

to Mr. Story.

The Defendant testified that he bought marijuana and pills from Mr. Foster. He said

that he spent around $10 per week for marijuana and that Mr. Foster provided free marijuana

for them to smoke together. He said he started using pills about two months after his parole.

He said that he spent $4 per pill and that he bought one at a time. He said his wife did not

have a prescription for Xanax. He said she had a prescription for pain medication that she

obtained through TennCare. He estimated he spent $10 to $20 per week for drugs.

-30-

The Defendant testified that when hay season began in September 2009, he was not

using drugs daily because he was trying to stay clean while on parole. He did not know how

much he spent per week for drugs in September. He said he made $500 per week in

September. He said that before September, his wife paid their $425 or $450 monthly rent and

their other bills from her unemployment benefits. He stated that when they moved to a larger

apartment, the rent increased to $600 but that they paid $450 because he performed

maintenance work for the landlord. He said Rev. Lawyer gave him about six tools to start

a handyman service. He said Rev. Lawyer never asked him to work on his house. He said

he used the tools at the victims’ farm but did not know what happened to them after he was

jailed. He did not remember if he discussed the tools with Mr. Eisenmann.

The Defendant testified that he met Mr. Pittard through Mr. Foster around June 2009

and that Mr. Pittard began staying at his house in October or November. He said that he did

not have a car and that his wife’s car was repossessed when she could not pay the $75 per

week payment. He said that he had probation fines and fees from Pennsylvania and that the

utility bill was about $100 per month. He said he did not make $2000 per month working

for Mr. Story. He stated that on some days, Mr. Story paid him $8 or $10 and that on other

days, Mr. Story paid him $100. He said Mr. Story may have paid him $500 per week on two

occasions. He said he was sometimes paid by check rather than cash. He said he received

checks twice, “most of the time,” and “a couple of times.” He said that he did not know Mr.

Story to carry cash and that Mr. Story paid for everything with checks.

The Defendant testified that he met Mr. Garza through Mr. Foster in June or July and

began buying drugs from Mr. Garza. He said he bought pills for $4 from Mr. Garza once or

twice a week. He thought he bought 0.25 ounce of marijuana from Mr. Garza for $25. He

said his wife did not like Mr. Garza because he was arrogant.

The Defendant acknowledged calling Mr. Pittard around 10:30 p.m. on December 27,

2009. He disagreed he testified on direct examination that the call was about drugs and said

he did not remember why he called Mr. Pittard. He said he called Mr. Garza looking for

drugs that night. He thought he sent a text message to Mr. Loyd asking for a cigarette, not

drugs, because he was out. He said Mr. Loyd did not bring him a cigarette. When asked how

he had a cigarette to smoke when he awoke around 2:30 a.m., he said he walked to a store

two blocks away to buy them. He said he was mistaken when he testified that he was with

his wife all night and did not leave the house. He denied he went somewhere else. He said

he did not think he went to Reggie Haynes’s house but then said he might have gone.

The Defendant testified that although he did not know how much money he had on

December 27, 2009, it was less than $100. He agreed he had rent due at the first of the

-31-

month and said that although he had a probation meeting on December 29, he had already

paid his fees.

The Defendant testified that the poker game took place around 6:00 to 8:00 p.m. on

December 27, 2009. He said everyone except his wife, son, and Mr. Pittard left by 8:30 p.m.

He said that he lost $5 in the game and that Reggie won the game. He thought Reggie came

back to his house that evening but did not know when. When asked about his lack of

memory, he said he knew he was not at the Storys’ house. He agreed he smoked marijuana

that night.

Regarding the trip to Walmart, the Defendant testified that he was buying a Christmas

gift on December 27, 2009, because the recipient was out of town and the gift would be less

expensive after Christmas. He did not recall if Mr. Pittard went inside Walmart and said he

was inside for twenty to thirty minutes. He said the defense tried unsuccessfully to obtain

video recordings from Walmart.

The Defendant testified that he went to bed before his wife and son on December 27,

2009, and did not know the time. He said he watched a DVD in his bedroom. He said he

had gone to buy the cigarettes before he went to his bedroom. He said that before he went

into the bedroom, he had been outside talking to Mr. Loyd. He said that their doors were

near each other and that they both smoked outside. He said that when he was outside talking

to Mr. Loyd, he still had cigarettes.

The Defendant testified that after Mr. Pittard said he “f----- up,” the Defendant was

not worried about Mr. Pittard staying at his house because the Defendant was not involved

in anything Mr. Pittard did. He said that when Mr. Pittard said he left something behind, Mr.

Pittard meant the rope. He thought Mr. Pittard had already been to see his mother and had

his clothes washed before Mr. Pittard came to his house.

The Defendant testified that when Mr. Loyd called him on December 28, 2009, Mr.

Loyd stated that something happened to the Storys and that Mr. Loyd would come to tell him

about it during his break. He said he did not learn the details until Mr. Loyd came to see him

around 9:00 a.m. He said Mr. Loyd told him that someone broke into the victims’ house and

that they had been bound and beaten. He did not think Mr. Loyd said they were robbed. He

said Mr. Pittard was not at his house when Mr. Loyd told him about the victims. He did not

know how long it took Mr. Pittard to take Mr. Pittard’s father to work because Mr. Pittard

had only had his father’s truck for about a week. He said he could have seen the yellow rope

two weeks earlier, though, because Mr. Pittard sometimes used the truck before that. He said

he did not ask if Mr. Pittard was involved in the incident with the victims because he would

have been in trouble as a parolee if he did not report it. Regarding Mr. Pittard’s taking him

-32-

to the store on December 28, 2009, he said that he did not recall what he bought but that it

was not food for his son because his wife received food stamps. He said Mr. Pittard did not

stay overnight on December 28.

The Defendant testified that Dustin Andrews took him to his parole hearing. He said

that he smoked marijuana before meeting with his parole officer and that he had taken pills,

although not that day. He thought he smoked marijuana with Mr. Andrews that morning.

He said that when he went into the bathroom for the drug test, the Visine bottle made a noise,

and he admitted after being asked that he had it. He was told his parole would be violated

but not that he would go to jail. He said Detectives Kohler and Gregory arrived and wanted

to search his house. He said that because he was on parole, he was required to cooperate

with them. He said he did not know about the marijuana under a candle and agreed it was

some he forgot to smoke. He said he gave them a “pot pipe” from a cupboard. He said that

although he was handcuffed and placed in the back of a police car when he was taken to his

house, he was not told he was under arrest. He said he was taken from his house to the police

station in handcuffs. He said Detective Kohler said he would be charged with possession of

marijuana and drug paraphernalia. He said that he was not read his rights until he was taken

to the police station and questioned and that he was not read his rights before his recorded

statement. When asked why he offered to wear a recording device, he said he knew he was

not going home.

The Defendant testified that he thought but did not know if Mr. Garza was involved

in the crimes with Mr. Pittard because they spent a lot of time together. He told the police

he could get the suspects’ clothing because he thought he could. He said he assumed but did

not know that a yellow rope was used in the crimes. He acknowledged he lied to the police

about the rope but said he was not going to lie to avoid detection. He said that he faced being

returned to Pennsylvania to serve fifteen months. He agreed that businesses had security

cameras and said he was unaware of the victims’ house having a security camera. He

acknowledged knowing there was a signal at the victims’ house when the gate opened.

The Defendant admitted his prior convictions for burglary, forgery, cultivating

marijuana, five counts of grand larceny, and fleeing from the police. He said that if he had

planned to flee after the crimes, he would not have gone to his parole hearing.

The Defendant testified that he would not be surprised if his wife said he did not wake

when their child wet the bed. He agreed his wife and he were both involved with other

people now, and when asked if he expected her to provide an alibi for him, he said he did not

expect her to do anything for him. He said he did not communicate with his wife, although

he admitted she brought their son to visit him in jail. He said that he met his wife in prison

-33-

and that she was a correctional officer. He said she quit her job because of their relationship

but denied she was fired.

The Defendant testified that Mr. Foster did not lie about the Defendant’s asking him

about burglarizing the victims’ house. He said that at the time, he was going to burglarize

their house because the victims were not home. He said he cared about the victims but

needed the money. He said he knew their schedule for being away from home.

The Defendant testified that Mr. Barnes was mistaken about Mr. Story never paying

the Defendant with a check. He acknowledged that he might have shown Mr. Loyd his hands

when Mr. Loyd asked if the Defendant had anything to do with the crimes. He said that if

he had beaten the victims, he would have marks on his hands. He said Mr. Loyd lied about

the Defendant’s writing an inculpatory letter. He said he had “no clue” why Mr. Loyd would

say this.

When shown a Miranda rights form, the Defendant acknowledged his signature. He

said he was still under the influence of drugs when he gave the videotaped statement,

although the form showed the time as 7:05 p.m. and he had used drugs before 9:00 or 10:00

a.m. He acknowledged a Notice of Alibi filed by the defense and agreed that his wife was

listed as an alibi witness. He acknowledged that the form also stated that he was at Walmart

around 8:30 and 10:30 p.m. and that it stated, “The defendant may call James Pittard to

establish the defense of alibi if it is later found that the offense occurred at the same time that

he was at Wal-Mart.” He agreed that the offense did not occur while he was at Walmart

because Mr. Pittard was with him.

On redirect examination, the Defendant testified that the store where he bought

cigarettes on December 27, 2009, was about two blocks from his home. He said that on an

occasion when he and Mr. Foster rode to the victims’ farm, they smoked a marijuana “blunt”

and discussed burglarizing the victims’ home. He said that it was not a serious conversation

and that they were “peacocking.” He said he had no advance knowledge of a plan to

burglarize the victims’ home. He said marijuana made a user “real mellow” and want to “sit

around and talk or eat.”

On questioning by the trial court, the Defendant testified that on the day of the

recorded interview, he had taken Xanax. He said he received specific information about the

crimes on the morning of December 28, 2009, from Mr. Loyd but not Mr. Pittard. He said

Mr. Loyd told him the victims were bound, beaten, and robbed. When asked why he sent a

text message to Mr. Loyd requesting cigarettes at midnight if he had been to the store before

going to bed at 10:00 p.m., he said he thought he went to the store after receiving no response

-34-

to the text message. He stated that he paid cash for the t-shirt he bought as a Christmas gift

at Walmart and that the recipient provided the item to the police.

Courtney Damon, the Defendant’s wife, testified that she and the Defendant were

separated and divorcing. She said she had been admitted to the hospital the previous day due

to anxiety attacks, which had exacerbated her Stage 3 liver disease and caused her to vomit

blood. She said that she was given Ativan, that its effects had worn off, and that she was

released from the hospital at 7:30 a.m. She said she and the Defendant had a four-year-old

son.

Ms. Damon testified that she, the Defendant, their son, and Mr. Pittard had lived in

a triplex. She said they were friends and spent time with their neighbors. She said Mr.

Pittard was at their house at least five days a week, although he did not have belongings

there. She said Mr. Pittard’s wife and son visited.

Ms. Damon testified that on December 27, 2009, people came to the house around

5:00. She said the Defendant, their son, Mr. Pittard, Mr. Loyd, and “Reggie” were there.

She said Mr. Foster, who lived across the street, may have been there. She said everyone left

around 6:00 or 6:30 p.m. She recalled that Reggie left to get lottery tickets and did not

return. She said Mr. Foster did not return. She said that later that evening, the Defendant

went to Walmart to get a birthday gift for her friend, Starla. She said that Mr. Pittard went

with the Defendant to Walmart, that they left around 8:00, and that they returned around 8:30

p.m. She recalled that one of her favorite television shows was starting as the Defendant

returned without Mr. Pittard. She said the television show began at 8:30. She said the

Defendant told her to send a text message to Mr. Loyd and tell him they had the gift. She

said that “we” sent Mr. Loyd a text message and that Mr. Loyd responded that he was in bed

and would get it the next day.

Ms. Damon testified that they “sat around” with their son until about 11:00 p.m., when

they went into their bedroom. She said that although their son had his own room, he slept

in their bed. She stated that the Defendant went to sleep, that she began watching a movie

in bed, and that their son was awake. She said she fell asleep during the movie but awoke

around 2:30 a.m. because her son had wet the bed. She said she looked at the clock on the

microwave. She said she took the child into the bathroom and tried to wake the Defendant.

She said she told the Defendant to remove the sheets, but he would not get up. She went to

her son’s bedroom and slept there. She said that as she went to her son’s room around 2:25

to 3:00 a.m., she saw Mr. Pittard asleep on the couch. She was certain that after the

Defendant returned from Walmart and until she got up when their son wet the bed, the

Defendant did not leave the house. She said it was not possible that he left without her

having known it because their son was “attached to him at the hip” and the apartment was

-35-

small. She said that on December 27, 2009, she took Wellbutrin, Lortab, and Clonopin,

which were prescribed for her.

Ms. Damon testified that she awoke around 8:30 a.m. on December 28, 2009. She

said that the Defendant was still asleep and that Mr. Pittard was gone. She said she woke the

Defendant when breakfast was ready. Mr. Loyd called and said that something bad had

happened, that he needed to talk to the Defendant, and that he could not talk about it on the

telephone. She said Mr. Loyd came to their house on his lunch break and told them what had

happened to the victims, which was when she first learned of it.

Ms. Damon testified that she took her son to visit the Defendant in jail. She said the

child cried for his father. She said she and the Defendant tried not to talk in front of the child

because he “picked up” on things. She said that she was testifying because she was

subpoenaed to testify and because she was sure the Defendant did not leave home on the

night of December 27, 2009. She acknowledged a 2011 theft conviction, which she said

involved her stealing food and hygiene products from Walmart when the Defendant was in

jail. She said she had a 2005 theft charge in Vermont.

Ms. Damon testified that she and the Defendant shared a cell phone. She said she had

the phone on the night of December 27, 2009 and recalled that she called Mr. Pittard to speak

with the Defendant while they were gone to Walmart.

On cross-examination, Ms. Damon testified that she met the Defendant when he was

incarcerated in Kentucky. She said that she had been a sergeant at the facility and that she

voluntarily resigned because she fell in love with the Defendant. She said they lived in

Vermont, then moved to Antioch, Tennessee. She said they had also lived in La Vergne

before moving to Murfreesboro. She agreed the Defendant went to Pennsylvania at some

point to serve a sentence following a parole violation. She said that from 2005 until she was

laid off in 2009, she worked full-time as a training manager and administrative assistant at

Simplicity Gourmet in La Vergne. She said that after she was laid off, she received

unemployment benefits and food stamps. She said the Defendant worked odd jobs, including

drywall construction and work for the victims. She did not remember how long the

Defendant worked for the victims but said he worked for them in the summer baling hay.

She said she and their son sometimes went to the victims’ farm. She did not recall if the

Defendant worked for the victims through December 2009.

Ms. Damon testified that she was unaware of Mr. Foster’s ever bringing marijuana

to her house. She said that if he did, it was used outside and that she did not see it. She

stated that she never saw the Defendant and Mr. Foster smoke marijuana together and that

the Defendant did not tell her he smoked marijuana with Mr. Foster. When asked if the

-36-

Defendant had ever brought marijuana into their house, she responded that the marijuana

found by the detectives had been brought there by Mr. Pittard. She said she had seen the

Defendant smoke marijuana.

Regarding a prior written statement, Ms. Damon testified that although she had said

Reggie left around 10:00 p.m. on December 27, 2009, she had mistakenly referred to when

Reggie left on December 26. She said she talked to the police a second time and corrected

the error. She said she had given the Defendant a gift card to buy the gift at Walmart. She

said the gift was for Mr. Loyd’s child, who was in Alabama at the time. She said they waited

to buy the gift because she had not had the money earlier. She was certain the Defendant did

not leave their bed on December 27, 2009. She acknowledged he could have “flipped the

mattress” while she was in the bathroom but maintained she was sure he did not leave the

house. She was unaware of the Defendant’s talking to Mr. Pittard that night after they went

to bed.

Ms. Damon testified that Mr. Pittard always wore a black and white bandanna, black

boots, jeans, a black studded belt, and a black hoodie but did not recall what he wore when

she saw him on the couch that night. She said she never saw him after December 27, 2009.

She did not know if Mr. Pittard came to her house to take the Defendant to the store on

December 28. When asked if she took Xanax, she said she did not have a prescription for

it. Regarding prior testimony that she had taken Xanax since she was sixteen, she said it was

“almost the same thing” as Clonopin. Regarding prior testimony that the Defendant returned

from Walmart around 9:25 or 9:30 p.m., she said she was unsure whether it was around 8:30

or 9:30. She said she did not remember the time from two years ago when her television

show began.

Ms. Damon testified that the Defendant and Mr. Story drank beer together three or

four times. She said that her son went to the Storys’ farm about two times and that she went

about five times. She said she had taken dinner to the Storys but did not eat with them

because Ms. Story was always too sick. She said her son called older people he liked “Papa.”

She denied saying that she was “so out of it because of pills or drugs” on December 27, 2009,

that she did not know whether the Defendant left the house. She denied telling Detective

Kohler that she was unsure if the Defendant was home all night on December 27. She

acknowledged having two driver’s licenses, each bearing a different last name. One listed

her as Courtney Damon, and the other listed her as Courtney Sandlin. She said Sandlin was

her former husband’s name.

On redirect examination, Ms. Damon testified that she was positive the Defendant

never left home on the night of the crimes. On recross-examination, she said she was equally

sure Mr. Pittard did not come into the house with the Defendant when the Defendant returned

-37-

from Walmart. On questioning by the trial court, she said the wet bed sheets were not

changed until December 28, 2009. She said she did not hear Mr. Pittard enter the home on

the night of the crimes. She said that the Defendant smoked, that she thought Mr. Pittard

smoked, and that she was sure there were cigarettes at the house on December 27.

On rebuttal proof, Michael Loyd testified that he played poker at the Defendant’s

house on December 27, 2009, and that he left between 7:00 and 8:00 p.m. He said he went

to bed between 11:30 p.m. and midnight and was not in bed at 8:30 p.m. He said he received

a text message asking for a cigarette between 11:00 and midnight from the Defendant’s cell

phone. He assumed the message was from the Defendant because Ms. Damon did not

smoke. He did not recall receiving a text message asking him to come get his stepson’s

Christmas gift that night. He said he received the gift on Monday, which he thought was

December 29.

On cross-examination, Mr. Loyd testified that he was sure the time he received the

message was not between 10:00 and 11:00 p.m. He said he received the gift for his stepson

on December 29. He did not know if it was Monday or Tuesday but was sure of the date.

He acknowledged supplying the Defendant with marijuana and smoking it with him.

On redirect examination, Mr. Loyd testified that the Defendant and Ms. Damon came

to his house with the gift after 5:00 p.m. He said that if the Defendant was arrested on

December 29, 2009, the date could have been December 28.

On recross-examination, Mr. Loyd testified that he and the Defendant did not discuss

going to Vanderbilt Hospital to see Mr. Story. He said he received the gift the day before the

Defendant was arrested. On further redirect examination, he said he told the Defendant by

telephone that the victims’ house was burglarized and that the victims were beaten and

robbed. He said that he went to the Defendant’s house later that day and that he did not tell

the Defendant more details other than the incident would be on the news. He said he

suspected the Defendant and asked him why the incident happened to the victims. He said

the Defendant had boasted about “hitting people so hard that it hurt them pretty bad and

things of that nature.” On further recross-examination, he said he suspected Mr. Foster was

involved. When asked if he suspected Mr. Pittard, he said he suspected anyone who

associated with the Defendant. He said he did not suspect Mr. Garza, whom he only met

once. On questioning by the trial court, he said he did not tell the Defendant that the victims

were bound, only that they were beaten and robbed.

Starla Loyd testified that her divorce from Mr. Loyd was not final. She said she met

the Defendant and Ms. Damon because she and Ms. Damon had worked together. She said

the Defendant and his family attended church with them. She said she knew the victims as

-38-

church members but did not know them personally. Mr. Loyd told her the Defendant worked

for Mr. Story, and she knew of the Defendant’s coming home from working on the farm.

She said the Defendant was mad because Mr. Story paid the Defendant’s utility bill but did

not pay the Defendant for working the next day. She said the Defendant talked about “lots

of old stuff” and a medicine cabinet with pill bottles at the Story house. She said she was in

Alabama when the crimes occurred and returned home a couple of days later. She did not

recall if she saw the Defendant on the day she returned but said she saw him after she came

home. She said her son received a gift from the Defendant and Ms. Damon when they

returned but did not recall if both the Defendant and Ms. Damon were present when he

received it. She said Ms. Damon told her the gift, a shirt with an FM radio attached, came

from Walmart. She said Ms. Damon told her the shirt had been stolen. She said Ms. Damon

did not tell her that it was purchased with a gift card.

Ms. Loyd testified that she and Ms. Damon had discussed the night of the crimes “a

little bit.” She said Ms. Damon told her that she “kind of remembered” the Defendant going

to the store but did not remember when he returned. She said Ms. Damon was sick and took

a lot of medication. She said Ms. Damon stated that she “was in and out of it.” She was

aware of Ms. Damon’s “covering for” the Defendant based upon stories they told her. She

said that the Defendant took her rent money, that Ms. Damon initially told her the Defendant

did not do it, and that Ms. Damon told her later “woman to woman” that the Defendant had

done it but that she could not say anything because it would cause a fight.

On cross-examination, Ms. Loyd testified that the Defendant took her rent money

before the crimes occurred. She said she did not tell Mr. Loyd about the stolen money to

prevent a fight between the Defendant and Ms. Damon and did not know if Mr. Loyd ever

learned of it. She acknowledged using marijuana with Mr. Loyd and the Defendant. On

redirect examination, she said that two weeks before the trial, she gave the shirt with the FM

radio to Detectives Kohler and Gregory. She identified a photograph of the shirt. On further

redirect examination, she said Ms. Damon had seen people use marijuana in the Damons’

house. On recross-examination, she did not recall Ms. Damon’s seeing marijuana use in

front of a child.

Detective Steve Kohler testified that he received a shirt from Ms. Loyd a few weeks

before the trial. He said he asked Ms. Loyd about the shirt because of Ms. Damon’s previous

testimony that the Defendant and Mr. Pittard went to Walmart to buy a gift for Ms. Loyd’s

son.

Reginald Haynes testified that he had been the Defendant’s neighbor and that he

played poker at the Defendant’s house once. He did not recall when he left and said that the

Defendant, Ms. Damon, the Damons’ son, Mr. Loyd, and two other people were there when

-39-

he left. He said he went home. He said that he won the game “[p]laying with chips” and that

he did not buy a “Lotto” ticket that night. He said that after he went home, he did not leave

again that night. He said the Defendant came to his house between 10:00 and 11:00 p.m. and

asked if he knew where the Defendant could get marijuana. He asked the Defendant where

Ms. Damon was, and the Defendant said she was at home. He said the Defendant stated that

Ms. Damon was “PMSing,” that he “had to shut her up,” and that he gave her some of her

medication. He said his house was “not even a good half a block away” from the

Defendant’s house. He did not know where the Defendant had been before the Defendant

came to his house.

On cross-examination, Mr. Haynes testified that he knew the time the Defendant came

to his house because he followed a nightly routine. He said that if someone knocked on his

door at 10:00 p.m., something was wrong. He said it was closer to 11:00 than 10:00 p.m.

when the Defendant came to his house. When asked if the Defendant seemed disheveled or

was sweating or if he had an unusual demeanor, he said the Defendant seemed the same as

he had earlier. He said the Defendant was alone. He did not know if the Defendant walked

or was dropped off. On questioning by the trial court, he said the Defendant told him the day

after the crimes that the incident had been on the news and that the victims were the people

for whom he worked.

Ashley Persad, Ms. Damon’s sister, testified that Ms. Damon told her that on the night

of the crimes, Ms. Damon was “knocked out” from her medication. She said Ms. Damon

stated that the Defendant was being accused of involvement and that he had been at home

when Ms. Damon went to sleep and woke. She said Ms. Damon did not specify the period

of time she slept. On cross-examination, she said that Ms. Damon did not go to bed at the

same time nightly and that Ms. Damon did not state the time she had gone to bed on the night

of the crimes. She said Ms. Damon did not say when the Defendant went to bed or express

concerns that the Defendant left home. She said no discussion occurred about the Damons’

son wetting the bed.

Judy Taylor testified that James Charles Pittard was her nephew. She said that she

knew generally when the crimes occurred but that she did not know the exact date. She said

that about 10:00 p.m. that night, she saw Mr. Pittard sitting in a kitchen chair in her house.

She said he wore jeans, boots, and a jacket. She said he came in and said he needed to use

his nebulizer, which was in her living room. She said that after he used the nebulizer, he said

he had to take someone named Garcia or Garza home. She said she saw Mr. Pittard later that

night sleeping on her living room couch. She said he slept on her couch two or three nights

per week. She said he was still asleep at 10:00 the next morning. She said he was still

wearing jeans.

-40-

On cross-examination, Ms. Taylor testified that she was certain the events she

described were on the night of the crimes. She recalled that she, her sister, and her niece

were doing laundry when Mr. Pittard arrived the first time. She said her sister washed Mr.

Pittard’s clothes, which she did not think was unusual. She did not see Mr. Pittard change

into a pair of tennis shoes. On redirect examination, she said that on one or two other

occasions, Mr. Pittard took home a person named Garcia or Garza. She said detectives came

to her house to speak to Mr. Pittard and thought it was two days after the crimes occurred.

She said that Mr. Pittard stayed overnight at her house on the night of the crimes and the next

night and that the detectives came the next day. On questioning by the trial court, she said

she had not spoken with Mr. Pittard about the crimes, did not hear him say anything to his

mother or his sister that night, did not know what time he left or returned the next day, and

did not know if he took his father to work the next day. On redirect examination, she said

Mr. Pittard drove his father’s truck. She did not know if Mr. Pittard drove his father to work

daily. On recross-examination, she was unsure but did not think Mr. Pittard’s father had

other transportation.

Dana Pittard, Mr. Pittard’s sister, testified that she lived with Ms. Taylor, who was her

aunt, and her mother. She said Mr. Pittard stayed at Ms. Taylor’s house about every other

night and slept on the couch. She recalled an evening when Mr. Pittard called and asked her

mother to set up his nebulizer. She said he arrived, used it, and left. She said he was there

fifteen to twenty minutes. She said he was in a white F-150 truck and did not know if anyone

was with him. She noticed blood on his pants and asked about it. She said he told her,

“[T]he less you know the better off you’ll be.” She said he stated that he was going to return

the truck. She said that he returned but that she was in bed. She said she left the next

morning without going into the living room. She said she woke during the night and heard

Mr. Pittard using his nebulizer but did not know the time. She said she went to sleep about

10:00 that night.

On cross-examination, Ms. Pittard testified that she did not know how Mr. Pittard

returned after dropping off the truck. She said her father picked her up for work at 6:30 the

next morning. She did not know of Mr. Loyd or Mr. Foster owning a white F-150 truck. On

redirect examination, she acknowledged that her father did not live far from her aunt.

The jury found the Defendant guilty of two counts of especially aggravated

kidnapping, aggravated robbery, aggravated burglary with the underlying felony as robbery,

and conspiracy to commit aggravated burglary with the underlying felony for aggravated

burglary as robbery. This appeal followed.

-41-

I & II

The Defendant contends that the evidence is insufficient to support his convictions.

In a related issue, he contends that the trial court erred in denying his motion for a judgment

of acquittal or a new trial because the evidence was insufficient to support the convictions.

The State responds that the proof established the elements of the offenses and the

Defendant’s identity as a perpetrator and that the court did not err in denying the motion for

a judgment of acquittal or a new trial. We agree with the State.

The Defendant asserts, in part, that the trial court was required to weigh,

independently of the jury, the evidence and grant a new trial if it disagreed with the jury

about the weight of the evidence. See Tenn. R. Crim. P. 33(d). We note that this court does

not have the authority to act as “thirteenth juror” pursuant to Rule 33(d). See, e.g., State v.

Biggs, 218 S.W.3d 643, 654 (Tenn. Crim. App. 2006). The Defendant does not contend that

the trial court failed to exercise its Rule 33(d) duty, only that the court made the wrong

decision. Review of the trial court’s decision as thirteenth juror is beyond the scope of this

court’s review.

On appellate review of a denial of a motion for a judgment of acquittal, we apply the

same standard as a question of the sufficiency of the evidence. See, e.g., State v. Brewer, 945

S.W.2d 803, 805 n.2 (Tenn. Crim. App. 1997). O u r s t a n d ar d o f r e v i e w w h e n t h e

sufficiency of the evidence is questioned on appeal 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). We do not reweigh the evidence but presume that the trier of fact has

resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence

in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness credibility are

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “‘A crime may

be established by direct evidence, circumstantial evidence, or a combination of the two.’”

State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State v. Hall, 976 S.W.2d 121,

140 (Tenn. 1998)).

A. Especially Aggravated Kidnapping

The Defendant was convicted of two counts of especially aggravated kidnapping, one

for each victim. In pertinent part, “Especially aggravated kidnapping is false imprisonment,

as defined in § 39-13-302 . . . [w]here the victim suffers serious bodily injury.” T.C.A. § 39-

13-305(a)(4) (2010). “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. § 39-13-32 (2010).

-42-

In the light most favorable to the State, the evidence shows that at the Defendant’s

direction, Mr. Pittard and Mr. Garza accompanied the Defendant to the victims’ farm to

burglarize the house. When they encountered the victims inside, Mr. Pittard and Mr. Garza

tied the victims on the Defendant’s instructions using rope the Defendant provided, leaving

the victims helpless to escape or call the authorities while the Defendant searched their house

for valuables. The parties stipulated that the victims suffered serious bodily injury. The

Defendant and his accomplices left the elderly, injured victims bound when they left the

house.

Mr. Pittard identified the Defendant as a participant in the crimes. His testimony was

corroborated by Mr. Eisenmann’s testimony about his conversations with the Defendant at

the jail about the crimes and about the Defendant’s statement that he was glad Ms. Story died

because it helped his criminal case. Mr. Loyd and Ms. Guill testified about the letter in

which the Defendant admitted he went to the victims’ farm to steal copper and a generator,

which Mr. Loyd understood to be on the night of the crimes, although he said the

Defendant’s letter stated that the Defendant went home and did not harm the victims. Mr.

Foster testified about the Defendant’s attempt to get him to burglarize the victims’ home and

the Defendant’s saying it would be a “good score.” The Defendant mentioned yellow rope

to the detectives, a fact that had not been released publicly. Although the Defendant offered

an explanation of his knowledge of yellow rope in Mr. Pittard’s truck, the jury was free to

accept or reject the credibility of his testimony.

Regarding the Defendant’s alibi, the Defendant’s and his wife’s testimony, if credited,

would establish that the Defendant was at home at least part of the night of the crimes, but

the evaluation and weighing of this testimony was in the jury’s province. The Defendant

initially testified that he did not leave the house after he returned from Walmart, but he later

admitted that he walked to a store to buy cigarettes. Mr. Haynes testified that the Defendant

came to his house that evening looking for marijuana. Mr. Haynes said the Defendant stated

that Ms. Damon was “PMSing” and that the Defendant “had to shut her up” by giving her

medication. Mr. Eisenmann testified that the Defendant claimed to have drugged his wife

on the night of the crimes. Ms. Persad testified that Ms. Damon told her that she was

“knocked out” from her medication. Ms. Damon testified that she went to sleep before the

Defendant. Mr. Pittard testified that the Defendant committed the offenses with him. The

jury was entitled to disregard the Defendant’s claim of an alibi.

We have not overlooked the Defendant’s argument that his previous trial ended with

a hung jury. The result of prior proceedings, though, has no bearing on the evidence that was

before the jury in the present proceeding and the jury’s weighing of that evidence. We also

have not overlooked the Defendant’s argument that it is illogical to conclude that he

committed the crimes because the victims were his only source of income. The jury, though,

-43-

concluded from the evidence that despite the victims’ providing his only income, the

Defendant committed the crimes. We conclude that the proof of especially aggravated

kidnapping of the victims is sufficient to support the convictions.

B. Aggravated Robbery

Relevant to the appeal, “Aggravated robbery is robbery as defined in § 39-13-401 .

. . [w]here the victim suffers serious bodily injury.” Id. § 39-13-402(a)(2) (2010). “Robbery

is the intentional or knowing theft of property from the person of another by violence or

putting the person in fear.” Id. § 39-13-401(a) (2010). In the light most favorable to the

State, the record reflects that the victims were assaulted, that Mr. Story told the intruders

where to find his wallet and money, and that they took the wallet. Items from Mr. Story’s

wallet were later found scattered near the county clerk’s office. As we addressed in our

analysis of the proof of the especially aggravated kidnapping convictions, the State

sufficiently proved the Defendant’s identity as a participant in the crimes. The evidence is

sufficient to support the aggravated robbery conviction.

C. Aggravated Burglary

“Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 39-

14-402.” Id. § 39-14-403 (2010). As relevant here, “A person commits burglary who,

without the effective consent of the property owner . . . [e]nters a building and commits or

attempts to commit a felony, theft, or assault[.]” Id. § 39-14-402(a)(3) (2010). The jury

found that the felony accompanying the burglary was robbery.

In the light most favorable to the State, the evidence shows that the Defendant and his

companions forced their way into the victims’ house by assaulting Mr. Story at the door and

restraining the victims. As we have stated, the evidence is sufficient to show that the

Defendant committed the felony of aggravated robbery in the victims’ house. We conclude,

as well, that the evidence is sufficient to support the aggravated burglary conviction.

D. Conspiracy to Commit Aggravated Burglary

A conspiracy exists when two or more people, “each having the culpable mental state

required for the offense that is the object of the conspiracy, and each acting for the purpose

of promoting or facilitating commission of an offense, agree that one (1) or more of them

will engage in conduct that constitutes the offense.” Id. § 39-12-103(a) (2010). In the light

most favorable to the State, the evidence shows that the Defendant asked Mr. Pittard to go

to a house to steal money and a guitar when the owners were gone. Mr. Pittard drove them

to get Mr. Garza, with whom the Defendant spoke before Mr. Garza got into the truck. The

-44-

three men went to the victims’ farm and committed the crimes. Although Mr. Pittard

testified that he participated because the Defendant threatened his family, the jury was free

to accept or reject the credibility of this testimony. The evidence is sufficient to show that

the Defendant agreed with Mr. Pittard and Mr. Garza to burglarize the victims’ house in

order to commit a robbery.

The evidence is sufficient to support the convictions. The trial court did not err in

denying the motion for a judgment of acquittal and the motion for a new trial. The

Defendant is not entitled to relief on this basis.

III

The Defendant contends that the trial court erred in allowing an eight-day break in the

trial between the proof and the closing arguments. The State contends that the issue is

waived because the Defendant failed to cite any authorities or provide references to the

record. We conclude that the Defendant waived the issue by failing to object at the trial.

The record reflects that the Defendant’s trial began on Tuesday, September 13, 2011.

On the second day of the trial, the judge advised the parties that if the trial was not finished

by Friday, it would be continued until the following Friday, when the judge would be back

from an out-of-state conference at which he was scheduled to speak. He urged the attorneys

to finish the trial by Friday, if possible. The proof concluded on Friday, September 16. The

judge advised the jury that due to his prior obligation and to an attorney with a sick family

member, they would need to return on Tuesday, September 27, for the remaining jury

instructions, closing arguments, and deliberations.

The record does not reflect that the defense objected during the trial, although the

issue was raised in the motion for a new trial. Relief is not required if the party seeking it

“failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of the error.” T.R.A.P. 36(a). Our consideration of the issue is waived.

IV

The Defendant contends that the trial court erred in excluding the testimony of a 9-1-1

operator, Tracey Hackney, who spoke with Ms. Story. He argues that Ms. Story’s statement

to Ms. Hackney about how many intruders had been in her house was admissible as an

excited utterance. The State contends that the trial court did not abuse its discretion in

excluding Ms. Hackney’s testimony about Ms. Story’s statement, which Ms. Hackney did not

remember. We conclude that the Defendant is not entitled to relief.

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During Ms. Hackney’s cross-examination, defense counsel asked her what she wrote

on the complaint card she created for the call regarding the number of intruders. The State

objected. Previously, the complaint card had been received for identification, but it was

never made an exhibit by either party. In a jury-out hearing, Ms. Hackney testified that Ms.

Story sounded “very upset,” “shaky,” “elderly,” and “pitiful.” She said she did not remember

what Ms. Story said about the number of intruders, although she had written on the complaint

card that there were two. She said she may have written it because Ms. Story may have said

there were two people or may have said she heard two voices. The trial court ruled that

although the defense established that Ms. Story was upset as would be required for admission

of an excited utterance, the witness could not testify about what Ms. Story said because:

The problem I’ve got here is [Ms. Hackney] cannot specifically remember

what was said to her. And so basically what you’re asking me to do is you’re

asking me to let in as an excited utterance her perception of what was said to

her. Now, if she would have said what I think you tried to get her to say, is

that there were two men that just walked in here and tied us up and beat us up,

then I would let that in. But right now she says I don’t remember what I said.

I normally would say that.

The Defendant argues that 9-1-1 calls and their contents are admissible under the

excited utterance exception to the hearsay rule. “‘Hearsay’ is a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Tenn. R. Evid. 801(c). Hearsay is not admissible unless

admission is authorized by the evidence rules or by other controlling provisions of law. Id.

at 802. One exception to the hearsay rule is for an excited utterance, “[a] statement relating

to a startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition.” Id. at 803(2).

Although 9-1-1 recordings are often admitted as excited utterances, there is no blanket

rule of admissibility. See, e.g., State v. Martha Ann Freeman, No. M2006-02572-CCA-R3-

CD, slip op. at 19-21 (Tenn. Crim. App. Mar. 28, 2008) (concluding that the trial court did

not abuse its discretion in excluding a 9-1-1 recording because the proponent did not

establish that it was admissible as an excited utterance), perm. app. denied (Tenn. Oct. 27,

2008). We note, though, the Defendant did not seek to have a 9-1-1 recording played for the

jury.

The trial court correctly found that Ms. Story’s statement to Ms. Hackney was an

excited utterance. Because Ms. Hackney could not testify from her own memory about Ms.

Story’s statement, however, her recording information on the complaint card was hearsay and

must likewise qualify under a hearsay exception in order to have been admissible. The

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Defendant argues generally that the evidence should have been admitted under the excited

utterance exception and has not addressed a separate hearsay exception covering Ms.

Hackney’s documentation on the complaint card of the information provided by Ms. Story.

We note, though, that the Defendant argued at the trial that the evidence was

admissible as a record of regularly conducted activity. See Tenn. R. Evid. 803(6). The rule

provides:

Records of Regularly Conducted Activity. A memorandum, report, record,

or data compilation, in any form, of acts, events, conditions, opinions, or

diagnoses made at or near the time by or from information transmitted by a

person with knowledge and a business duty to record or transmit if kept in the

course of a regularly conducted business activity and if it was the regular

practice of that business activity to make the memorandum, report, record or

data compilation, all as shown by the testimony of the custodian or other

qualified witness or by certification that complies with Rule 902(11) or a

statute permitting certification, unless the source of information or the method

or circumstances of preparation indicate lack of trustworthiness. The term

“business” as used in this paragraph includes business, institution, profession,

occupation, and calling of every kind, whether or not conducted for profit.

Tenn. R. Evid. 803(6).

In the jury-out hearing, the Defendant elicited testimony to show that Ms. Hackney

had knowledge and a business duty to document information about 9-1-1 calls on complaint

cards. As we have noted, the trial court expressed concerns about the trustworthiness of the

information. When defense counsel specifically raised the records of regularly conducted

activity exception, the trial court questioned the witness, “Ma’am, do you remember her

telling you that there were two males in the house?” Ms. Hackney responded, “Not without

me asking that question. Not without me asking her what happened.” The court then asked,

“But do you remember in your discussions with [Ms. Story] when she called you upset, hurt,

bleeding, did she say to you there were two – or something like that, there were two men in

the house or I heard two voices or what did she say to you[?]” The witness responded that

she did not remember exactly what Ms. Story said. The court stated without further

elaboration that it disagreed with the defense that the evidence was admissible.

The complaint card was received for identification, and it stated in pertinent part:

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HOME INVASION, BEEN OVER 15 MINS, COMPL 93 YOA HUSBAND

CECIL 86 YOA, BOTH WERE SEVERELY ASSAULTED AND HAD

BEEN TIED UP

2 MALES, UNK DESC OR IF WERE IN A VEH, DID NOT SEE ANY

WEAPONS, UNK AT THIS TIME IF OR WHAT MAY HAVE BEEN

TAKEN

In her statement to the police, Ms. Story said that Mr. Story told her there were two men at

the door, not that she personally observed the men. We note that in an offer of proof related

to the admissibility of Ms. Story’s statements to John Story, he testified that she told him two

men broke into the house and beat up Cecil Story and her. He said he did not know whether

the information she conveyed to him and the police was based upon her personal knowledge

or her recounting Mr. Story’s observations.

We conclude that the trial court erred in excluding the evidence. Although Ms.

Hackney could not testify of an independent recollection about her conversation with Ms.

Story and did not recall the basis for Ms. Story’s statement about the number of intruders,

Ms. Story was present during the violent home invasion and had the opportunity to observe

the intruders. There is no indication the method or circumstances of the preparation of the

complaint card were unreliable. The weight to be given the evidence based upon other proof

about Ms. Story’s basis of knowledge of the number of intruders was a matter for the jury

to resolve.

We note that the defense did not ask, nor did the court consider, whether the contents

of the complaint card were admissible under the hearsay exceptions for public records or past

recollection recorded. See Tenn. R. Evid. 803(5) (recorded recollection), 803(8) (public

records). In any event, despite the trial court’s exclusion of the evidence, other evidence of

Ms. Story’s statements to the police and John Story about the number of intruders was

admitted. In the police statement, she said Mr. Story told her there were two men at the door.

John Story testified that his mother told him that two men broke into the house, beat Cecil

Story and her, and tied them up. We note, as well, that Cecil Story testified that he saw two

men at the door. We conclude that the trial court’s failure to admit the 9-1-1 call log was

harmless error.

We also note that the Defendant argues that the trial court erred in excluding this

evidence in his first trial. As we will discuss in section X, matters that occurred in other

proceedings are not relevant in the present appeal and will not be considered. The Defendant

is not entitled to relief.

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V

The Defendant contends that the trial court erred in admitting testimony from Michael

Loyd and Leah Guill about an incriminating letter written by the Defendant. He contends

that the letter’s absence was “highly suspect” and that the testimony about it was unfairly

prejudicial. The State contends that the trial court did not abuse its discretion in allowing the

testimony.

Mr. Loyd testified that the Defendant wrote him several letters. He wrote to the

Defendant asking why the crimes happened to the victims, who were good people, and

stating he would have given the Defendant money. He later received a letter from the

Defendant, which stated, “[Y]ou know I would never hurt those people. I didn’t do this. .

. . I went out there to steal copper and a generator, but I come [sic] home and I did not hurt

those people.” Ms. Guill testified that she read a letter from the Defendant to Mr. Loyd in

which the Defendant stated that he went to the Storys’ farm to steal copper and a generator

but that he would not hurt them and “didn’t do that” to them. Mr. Loyd and Ms. Guill, who

lived together, testified that the letter was lost.

Tennessee Rule of Evidence 1004(1) provides that if an original writing is lost or

destroyed other than in bad faith, other evidence of it is admissible. T ennessee R u le o f

Evidence 403 provides 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[.]” Tenn. R. Evid. 403. Prejudicial evidence is not excluded as a matter

of law. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000) (citing State v. Gentry, 881

S.W.2d 1, 6 (Tenn. Crim. App. 1993)). The term “undue prejudice” has been defined as

“‘[a]n undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.’” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting

Fed. R. Evid. 403, advisory comm’n notes).

The Defendant’s inculpatory statements in the letter were relevant to address the

Defendant’s going to the victims’ house to commit thefts on the night of the crimes and his

denial of any involvement in harming the victims. Regarding the fact that the letter was lost,

Mr. Loyd testified about his efforts to locate it. He and Ms. Guill testified about moving

since Mr. Loyd received the letter and a burglary at their house. Evidence of the letter’s

contents was admissible under Rule 1004(1), provided it was not unfairly prejudicial.

The Defendant argues that the evidence was unfairly prejudicial because the letter

itself was never produced. This fact was before the jury and was available for its

consideration in assessing the credibility of the witnesses and determining the proper weight

to be given to the evidence. Although the testimony about the Defendant’s admissions in

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the lost letter were prejudicial in the sense that they provided evidence against the Defendant,

we do not view the testimony as unfairly prejudicial.

We have considered the Defendant’s argument that the existence of unfair prejudice

is “extremely compelling” because the State did not call Mr. Loyd or Ms. Guill to testify at

this first trial. He has cited no authority for the proposition that a witness’s testimony at a

retrial is unfairly prejudicial under Rule 403 because the witness did not testify in an earlier

proceeding. We do not view the State’s decision not to call Mr. Loyd and Ms. Guill at the

first trial as having any bearing on its ability to call them as witnesses at the second trial. We

conclude that the trial court did not err in admitting the testimony about the Defendant’s

letter and that the Defendant is not entitled to relief on this basis.

VI

The Defendant contends that the trial court erred in admitting evidence of the

Defendant’s previous thefts of copper and gasoline from the victims’ farm and his previous

discussion of burglarizing the victims’ home and stealing cash and property. He argues that

the evidence was not probative and was unfairly prejudicial. The State contends that the trial

court did not abuse its discretion in admitting the evidence, which was probative of the

Defendant’s motive and intent. We conclude that the evidence of the previous thefts and the

prior discussions of a burglary and theft were properly admitted.

Tennessee Rule of Evidence 404 prohibits evidence of other crimes, wrongs, or acts

offered to show a character trait in order to prove that a defendant acted in conformity with

that character trait. Tenn. R. Evid. 404(b). However, evidence of other crimes, wrongs, or

acts may be admissible for other purposes, such as establishing identity, motive, common

scheme or plan, intent, or absence of mistake. Id.; State v. McCary, 119 S.W.3d 226, 243

(Tenn. Crim. App. 2003). The rule lists four requirements that must be satisfied before a

court determines admissibility:

(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 a character trait and must upon request state on the record the

material issues, 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

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

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4). We review a trial court’s ruling on evidentiary matters under

Rule 404(b) using an abuse of discretion standard, provided the trial court has substantially

complied with the procedural prerequisites of the rule. State v. DuBose, 953 S.W.2d 649,

652 (Tenn. 1997).

The record reflects that the trial court held a hearing on the admissibility of the

evidence. Mr. Foster testified consistently with his trial testimony regarding the Defendant’s

prior thefts of gasoline and copper from the victims’ farm and the Defendant’s mentioning

breaking into the victims’ house and taking cash and a guitar. The court found that the

evidence was probative and material of the Defendant’s motive and intent to commit the

crimes, that there was clear and convincing proof of the prior acts, and that their probative

value outweighed the danger of unfair prejudice.

The State argues that in conjunction with Mr. Foster’s testimony about the

Defendant’s financial concerns, the evidence shows that the Defendant sought to solve his

problems by stealing from the Storys, who were helping him. The State notes that the trial

court gave a limiting instruction to limit the jury’s consideration of the evidence of the

Defendant’s prior bad acts to the questions of the Defendant’s motive and intent to commit

the crimes.

The Defendant’s prior discussion of burglarizing the victims’ house and stealing

property and his prior thefts of copper and gasoline from the victims’ farm were probative

of the Defendant’s intent to burglarize the victims’ house and steal from them. The evidence

showed that the Defendant had ongoing financial problems and that he stole from the victims

to obtain money. The Defendant argues that the State provided insufficient proof that the

previous acts occurred. The trial court found otherwise, and the evidence does not

preponderate against the court’s factual finding.

The Defendant argues that the prior thefts were propensity evidence. Although the

danger existed that the evidence of prior thefts would be used to show the Defendant

committed theft, the probative value outweighed the danger of unfair prejudice because the

evidence, taken with the proof of the prior burglary conversation and the Defendant’s

financial problems, show his motive and intent to burglarize the victim’s home and steal from

them.

Regarding the prior conversation about burglary, the Defendant claims the evidence

was unfairly prejudicial because Mr. Foster was unsure whether the Defendant was joking

-51-

or serious. Mr. Foster’s perception of the Defendant’s intent is a matter concerning the

weight to be afforded the evidence, not its admissibility. The jury heard Mr. Foster’s

testimony that he was unsure of the Defendant’s intent and was entrusted with the decision

of the weight to be given to the evidence in light of all of the proof. The evidence was not

unfairly prejudicial, and the trial court did not err in admitting it. The Defendant is not

entitled to relief on this basis.

VII

The Defendant contends that the trial court erred in allowing the State to play portions

of a video recording of the Defendant’s pretrial statement. He argues that it was unfairly

prejudicial because he was uncooperative, used profanity, and had visible tattoos. The State

contends that the court acted within its discretion in admitting the recording. We agree with

the State.

We address, first, the Defendant’s argument that “the entire interview, including the

portions played for the jury,” caused undue prejudice. The Defendant has not explained how

the entire interview was unfairly prejudicial, despite the jury’s having only viewed portions

of it. Our analysis extends to the portions of the interview that were evidence viewed by the

jury.

We conclude from our review of the recording that the Defendant’s reaction when

questioned about the crimes was probative evidence. We also conclude that his lack of

cooperation, cursing, and tattoos did not create the danger of unfair prejudice. In the

interview, the Defendant expressed both his desire to cooperate with the police to apprehend

the people responsible for the crimes and his desire not to cooperate unless he was released.

As he notes, he cursed several times. He has not identified the tattoos of concern. Detective

Tillman referred to the Defendant’s having a neck tattoo when he identified him in the

courtroom. In the interview, the Defendant wore a long-sleeved shirt and jeans, and no

tattoos were apparent in the recording. We conclude that the trial court did not abuse its

discretion. The Defendant is not entitled to relief on this basis.

VIII

The Defendant contends that the trial court erred in allowing William Eisenmann to

testify without being subject to cross-examination about the truthfulness or falsity of his prior

testimony in another matter. The State contends that the Defendant waived appellate

consideration of the issue by failing to provide an adequate record for review. We conclude

that the Defendant has waived any complaint about the trial court’s decision not to allow him

to play a recording relevant to the issue by failing to include the recording in the record and

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that he is not entitled to relief on his claim the trial court erred in ruling that he could not

cross-examine Mr. Eisenmann about his prior testimony in an unrelated proceeding.

The Defendant contends that he should have been permitted to cross-examine Mr.

Eisenmann about his prior lying under oath in a driving under the influence (DUI)

proceeding. He states that he sought to play a recorded news report about Mr. Eisenmann’s

having told a judge relative to the DUI arrest that his dog, not he, had driven. He claims he

played the recording as an offer of proof, although the record does not reflect that the

recording was offered in the present proceeding. Although this court granted the

Defendant’s motion to supplement the record with the record of the first trial, the recording

is not in the supplemental record that was filed by the trial court clerk. We note that this

court’s order provided, in part:

This [supplemental] record shall consist of the relevant pleadings, exhibits and

transcripts from the first trial conducted in this case which are not already

included in the current record on appeal. The Appellant does not specify in his

current motion which items he wishes to be included in this supplemental

record so he shall be responsible for designating those items for the benefit of

the clerk of the trial court. The Appellant shall be responsible for ensuring that

this supplemental record includes the requested items and is filed within the

time allowed.

The supplemental record contains the transcript of the first trial, but it does not contain any

exhibits. The list of exhibits in the transcript of the first trial identifies all of the exhibits as

photographs. To the extent that the Defendant’s appellate complaint concerns the trial

court’s decision not to allow him to play the recording, our consideration of the issue is

waived because he failed to include the recording in the appellate record. See T.R.A.P.

36(a).

In the present proceeding, though, Mr. Eisenmann was questioned in a jury-out

hearing and testified that when he pleaded guilty in the DUI case, he told the judge, “I said

I was told that I said that my dog was driving the car.” He explained that the officer who

took him to jail told him that he had said the dog drove. He distinguished that he did not tell

the judge that the dog drove.

A transcript of his testimony in a jury-out hearing at the first trial was received as an

offer of proof. In it, Mr. Eisenmann testified consistently with his testimony at the jury-out

hearing at the second trial regarding his statement to the judge in the DUI case. The trial

court found that a reasonable factual basis existed to conclude that the conduct occurred but

that the conduct did not have probative value.

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Tennessee Rules of Evidence 401, 402, and 403 provide:

Rule 401. Definition of “relevant evidence”.-“Relevant evidence” means

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.

Rule 402. Relevant evidence generally admissible; irrelevant evidence

inadmissible.-All relevant evidence is admissible except as provided by the

Constitution of the United States, the Constitution of Tennessee, these rules,

or other rules or laws of general application in the courts of Tennessee.

Evidence which is not relevant is not admissible.

Rule 403. Exclusion of relevant evidence on grounds of prejudice,

confusion, or waste of time.-Although 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.

We conclude that the trial court did not abuse its discretion in determining that the

evidence did not have probative value. See Tenn. R. Evid. 401. The defense sought to

impeach Mr. Eisenmann’s credibility by asking him if he previously lied under oath by

stating that his dog drove a car. He denied that he said it and explained that he said

something else. Even if the evidence had some relevance, any relevance would be

substantially outweighed by the danger of confusing the issues. See Tenn. R. Evid. 403. The

Defendant is not entitled to relief on this basis.

IX

The Defendant contends that the trial court abused its discretion by allowing Rev.

Lawyer to testify about the Defendant’s financial problems. He argues that Rev. Lawyer

lacked personal knowledge and that the testimony was irrelevant, prejudicial, and lacked

probative value. The State contends that the Defendant has waived the issue by failing to cite

authority to support his claim. As the State notes, the Defendant failed to cite any authority

to support his claim that the trial court abused its discretion in admitting the evidence.

Appellate consideration of the issue is waived. T.R.A.P. 27(a)(7); Tenn. Ct. Crim. App. R.

10(b).

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X

The Defendant contends that the trial court erroneously admitted evidence in the

Defendant’s first trial that resulted in a hung jury but would have resulted in an acquittal if

the evidence had not been admitted. The State contends that the Defendant has waived the

issue by failing to ci

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