State of Tennessee v. Mario D. Taylor

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 29, 2014

STATE OF TENNESSEE v. MARIO D. TAYLOR

Appeal from the Criminal Court for Sumner County

No. 2011CR45 Dee David Gay, Judge

No. M2013-02667-CCA-R3-CD - Filed March 31, 2015

Appellant, Mario D. Taylor, was convicted of aggravated burglary, aggravated robbery,

employing a firearm during the commission of a dangerous felony, and three counts of

aggravated assault. The trial court sentenced him to an effective sentence of twelve years.

On appeal, appellant argues that: (1) there was insufficient evidence to support his

convictions; (2) his conviction for employing a firearm during the commission of a

dangerous felony violates his double jeopardy rights; (3) the trial court erred by refusing to

allow a lay witness to testify regarding appellant’s mental and physical health; and (4) the

trial court erred by refusing to allow appellant to introduce the entirety of his videotaped

interrogation. Following our review of the parties’ briefs, the record, and the applicable law,

we affirm the judgments of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS,

J., joined. R OBERT H. M ONTGOMERY , J R., J., filed a separate concurring and dissenting

opinion.

Jeremy W. Parham, Manchester, Tennessee, for the appellant, Mario D. Taylor.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Lawrence Ray Whitley, District Attorney General; and Tara Wyllie, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This case concerns a home invasion during which the perpetrators wore bandanas

covering their faces and demanded money and guns from a family while one of the

perpetrators pointed a gun at the family members. One of the perpetrators took the mother’s

purse from the home. Appellant was indicted for and convicted of aggravated burglary,

aggravated robbery, employing a firearm during the commission of a dangerous felony, and

three counts of aggravated assault. Appellant’s trial began on April 17, 2012.

I. Facts from Trial

Cathy1 testified that on October 17, 2010, she was living in her Sumner County home

with her husband; her older daughter Ashley, age 26; her son Zachary, age 15; and her

younger daughter Caitlyn, age 13. All five members of the family were at home on October

17. Cathy explained that they returned to their home after a Sunday night church service at

approximately 7:30 or 7:35 p.m. and had been home for twenty to twenty-five minutes when

she heard a knock at the door. At the time, she and her children were downstairs, her older

daughter was in the bathroom, and her husband was upstairs. Her son went to the door,

asked who was outside, and opened the door. Two men came inside the house wearing

bandanas, one orange and one red; “stocking caps”; and gloves saying, “‘Everybody on the

floor. Everybody get on the floor.’” One of the men, who was wearing black, rectangular-

framed glasses and a red bandana, pushed her son, and her son responded, “‘Man, what you

want? What you want?’” The men then came toward Cathy, and the man wearing the red

bandana and glasses put a gun to the back of her son’s head. She instructed her children to

“‘[j]ust do what he says.’” The men ordered everyone to lie on the floor and keep their eyes

on the floor. Cathy heard a lot of noise as the men moved about her home. She also heard

someone ask where the family’s guns were located and if anyone else was in the house.

When her younger daughter made noise, one of the men said, “‘Oh shut up. I ain’t going to

shoot you.’” Cathy explained that shortly thereafter it suddenly became quiet. She heard a

sound as someone came down the stairs. Her son said, “‘They’re gone.’” They got up from

the floor, closed the door, and called the police. Cathy stated that the entire incident lasted

approximately ten to fifteen minutes. Cathy later found that the only thing missing from her

home was her purse. Cathy was shown a picture from which she identified her purse, wallet,

and other items that had been inside her purse when it was taken from her home. Cathy also

identified a pair of glasses that looked the same as the glasses worn by the perpetrator who

held a gun to her son’s head.

During cross-examination, Cathy stated that she saw one of the perpetrators with a

gun in his hand and that the second perpetrator “had something similar in his hand.”

However, she conceded that the second individual never pointed a gun at any of the members

1

It is the policy of this court to protect the identity of minors. Therefore, we will refer to any

individuals who were minors at trial or during the commission of the offenses by their first names. We will

also refer to the adult victims in this case by their first names in order to protect the identity of the victims

who were minors. In doing so, we mean no disrespect.

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of her family. Cathy also conceded that her written statement to law enforcement did not

contain an assertion that the second perpetrator had a weapon. Cathy agreed that she had

never identified appellant in a line-up and explained that the perpetrators had their faces

covered while in her home. Cathy agreed that no one was physically injured during the

incident. Cathy testified that after the incident, she saw at least eight text messages from

Kelsey, a teenage girl who lived across the street, saying, “‘[Zachary], are you home?’” She

said that the messages all arrived shortly before and during the incident. Cathy explained that

it was normal for her son to receive those types of text messages.

Caitlyn, Cathy’s younger daughter, testified next that when she heard the knock at the

door, her brother went to the door and asked, “‘Who is it?’” She heard a murmur, and her

brother again asked, “‘Who?’” Caitlyn heard the person outside the door respond, “‘Jrock.

Open the door.’” After her brother opened the door, one of the perpetrators pointed a gun

at her brother and ordered everyone to lie on the floor. However, Caitlyn remained standing.

Caitlyn testified that the perpetrators began asking, “‘Where’s the .357?’” and, “‘Where’s the

money?’” One of the men asked Caitlyn who was upstairs, and she responded, “‘Nobody.’”

The two men went upstairs but then turned around and exited the home. Caitlyn recalled that

one of the men was wearing an orange bandana, but she could not “really place” the other

perpetrator. She believed that the perpetrator wearing the orange bandana pointed the gun

at her brother, but she could not see either man’s face. Caitlyn asserted that both men had

weapons but that neither ever pointed a gun at her. Caitlyn explained that she was “really

scared” during the incident because she did not want anyone to harm her family and that she

was so afraid that she had to sleep with her sister the night of the incident. During cross-

examination, Caitlyn explained that the two men sounded like they were teenagers. Caitlyn

conceded that she only actually saw one gun during the incident.

Zachary, Cathy’s son, testified that on the night in question, he opened the door to his

home after a person knocking on the door identified himself as “‘Jrock.’” Zachary stated that

there were two men standing outside and that the man standing closest to the door put a gun

to Zachary’s neck. The man told Zachary “‘[t]o get back and get on the ground.’” Zachary

saw the other perpetrator point a gun at his sister. When the men asked for guns and money,

Zachary responded that they did not own “‘that kind of stuff.’” One of the men replied,

“‘Yeah you do. Where is the .357 and the nine,’” to which Zachary responded that he did

not “‘know anything about that stuff.’” The men went upstairs but suddenly ran back down

the stairs and out of the house. Zachary then saw his father walking down the stairs carrying

his pistol. Zachary stated that the men were wearing bandanas, dark clothes, and gloves and

that the man who pointed a gun at him was wearing glasses. Zachary could not remember

what color bandana the man wearing the glasses wore but stated that the other man wore an

orange bandana. Zachary stated that Kelsey was a girl who lived across the street. He

explained that at the time, he had known Kelsey for about a month and that it was not

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uncommon for her to text him. Zachary stated that immediately after the incident in question,

he realized that he had received numerous text messages from Kelsey asking if he was at

home. Zachary explained that he could not identify the two perpetrators because they kept

their faces covered while in his home.

During cross-examination, Zachary explained that he opened the door because he

assumed that “Jrock” was a friend whose name started with “J” and that the friend was using

a nickname. Zachary conceded that he did not tell law enforcement officers that both men

had weapons when he gave a statement after the incident. Zachary explained that prior to

this incident he had been “talking” to Kelsey as a prelude to dating but that they “fell at odds”

when she began “talking to” one of his friends. Zachary stated that it was unusual for Kelsey

to text him repeatedly to inquire as to his whereabouts. Zachary recalled telling detectives

that the man who pointed a gun at him wore a red bandana.

Ashley, Cathy’s older daughter, testified next that on the evening of October 17, 2010,

she was walking into the bathroom when she heard a knock at the door. While she was in

the bathroom, she heard her brother and mother have a conversation about who was at the

door. She then heard the door open and heard a man’s voice. She heard someone say, “‘Shut

up.’” She heard her sister scream and heard a man’s voice say, “‘Get on the ground.’” She

heard some “shuffling around,” and someone said, “‘Where’s the guns?’” Her brother

responded that they did not own any weapons, to which a man responded, “‘Yeah, you do.

Where’s the .357 and the nine?’” Ashley heard her sister scream and heard a man say, “‘Shut

the F up. We’re not going to shoot you.’” Ashley heard a lot of “shuffling around” and

heard the men ask, “‘Who else is here?’” before the perpetrators left the house. Ashley stated

that while she was in the bathroom, she had a cellular telephone that all the members of her

family used. She said that she received three or four text messages from Kelsey to Zachary

asking if Zachary was at home. During cross-examination, Ashley agreed that she was inside

the bathroom for the duration of this incident and did not see any of the individuals who

came into her home.

Kelsey, the teenage female who lived across the street from the home in question,

testified next that prior to October 17, 2010, she had known Zachary for one to two months

and that they had mutual friends. Kelsey stated that Jeremy Martin was an ex-boyfriend and

that Mr. Martin was at her house on October 17. Mr. Martin came to Kelsey’s home with

Lavontray Woodley and a male and female whom Kelsey did not know. Mr. Martin was

wearing black jogging pants and a black shirt. Mr. Woodley was wearing a black shirt and

shorts and a hat. Kelsey stated that Mr. Martin retrieved a letterman jacket he had left at her

home and asked for a bandana. Kelsey explained that she gave Mr. Martin red and orange

bandanas. Kelsey said that Mr. Martin’s nickname was “Jrock.” Kelsey asserted that she did

not talk to Mr. Martin about Zachary that night but that she and Mr. Martin had spoken about

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Zachary in the past. Kelsey testified that she sent Zachary text messages that night because

she and Zachary had “exchanged words” a couple of days prior, and she wanted to talk to

him about it. Kelsey stated that she only learned of the incident at Zachary’s home when

Zachary called her after it occurred. Mr. Martin also later told her that he had gone in the

home and had taken a purse.

Chareece, Mr. Woodley’s girlfriend, testified that on October 17, 2010, she went with

Mr. Martin, Mr. Woodley, and “Money” (appellant) to retrieve a jacket from Mr. Martin’s

girlfriend, Kelsey. Chareece explained that she and Mr. Woodley waited in the car while Mr.

Martin went inside Kelsey’s house and that appellant stood outside the vehicle. Kelsey came

outside and spoke to Mr. Woodley. During this conversation Mr. Martin and appellant

walked away, but Chareece did not know where they went. Chareece described appellant as

a tall, African American male and stated that he was wearing “all black” “shades” on the

night in question. Chareece explained that the two men were gone approximately fifteen to

twenty minutes and that when they returned, appellant was carrying a bag. It was not until

all four individuals left Kelsey’s home and were driving on the interstate that appellant stated

that there was “‘nothing in the bag.’” Someone, Chareece could not remember who, threw

the bag out of the car window. During cross-examination, Chareece stated that she never

saw any weapons on October 17.

Lavontray Woodley testified that on October 17, 2010, he, Chareece, Mr. Martin,

a.k.a. “Jrock,” and appellant, a.k.a. “Money,” went to Kelsey’s apartment to retrieve Mr.

Martin’s jacket. Mr. Woodley stated that after Mr. Martin and appellant went inside Kelsey’s

apartment, Kelsey came outside to the car to speak with him. Mr. Martin and appellant then

walked away, and Mr. Woodley thought that Kelsey went with them. They had been gone

for approximately thirty to forty minutes when Mr. Martin came jogging back to the car, and

appellant was running behind Mr. Martin trying to catch up. Mr. Woodley did not notice

either man carrying anything. However, Mr. Woodley later saw appellant going through a

purse and talking about how he “didn’t have nothing.” Mr. Woodley then saw appellant

throw the purse out of the car window.

During cross-examination, Mr. Woodley stated that he and Chareece sat in the car

talking while Mr. Martin and appellant were gone. Mr. Woodley confirmed that both Mr.

Martin and appellant went inside Kelsey’s apartment. Mr. Woodley explained that appellant

threw the purse out of the car window near downtown Nashville and that he never saw

anyone in the possession of or wearing a bandana that evening.

Jeremy Martin testified next that as of October 17, 2010, he had known appellant for

one to two months. Mr. Martin explained that he, appellant, Mr. Woodley, and Chareece

went to Kelsey’s house to pick up a jacket he had left there. He stated that after he had

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retrieved his jacket, he, appellant, and Kelsey were standing outside, and appellant stated that

he wanted to commit a robbery. Kelsey gave them a red bandana with “little teddy bears”

on it and an “orangish, pink-looking” bandana with flowers on it. Mr. Martin, appellant, and

Kelsey left Mr. Woodley and Chareece sitting in the car, and the three walked around the

apartment complex. During the walk, Kelsey pointed to a house and told the two men that

there were guns and money inside. Mr. Martin asserted that Kelsey was aware that they were

planning to rob someone. Mr. Martin and appellant proceeded to cross the street to rob the

house, leaving Kelsey at her apartment complex.

Mr. Martin explained that appellant knocked on the victims’ door and that when asked

who was outside, appellant responded “‘J[r]ock.’” Mr. Martin did not know why appellant

used Mr. Martin’s nickname. Mr. Martin had a rock in his hand but did not have a gun, and

Mr. Martin did not know that appellant had a weapon until someone opened the door and

appellant drew the gun. Appellant then pointed the gun at one of the victims. Mr. Martin

remembered that there was a mother and two children, a male and female, inside the house.

Once inside the house, appellant demanded that everyone get on the floor. Appellant also

told the female child that no one was going to shoot her. Mr. Martin explained that appellant

told him to go upstairs but that he fled the home when he heard someone else moving about

upstairs. Mr. Martin asserted that appellant took the purse from the house. When appellant

looked inside the purse while they were driving down the road, he told Mr. Martin that he

had “hit a dry lick,” meaning that he did not get anything of value. Mr. Martin explained that

appellant threw the purse and all of its contents out of the car window. Mr. Martin admitted

that he had already pleaded guilty to robbery and that part of his plea agreement was that he

testify truthfully at appellant’s trial. Mr. Martin testified that he is 5'6" or 5'7" and that

appellant is four to five inches taller than he. He also stated that on the night of the robbery,

appellant was wearing square glasses with gold trim.

During cross-examination, Mr. Martin explained that a week or two prior to the

incident, he and Kelsey had ended their three-year relationship and that they were “just

conversating” after the breakup. Mr. Martin stated that he was the only person to go inside

Kelsey’s apartment that night. He testified that he wore the red bandana. Mr. Martin stated

that the lenses in appellant’s glasses were clear and that neither he nor appellant were

wearing gloves during the robbery. Mr. Martin also agreed that he and appellant had an

altercation when they first met.

Steve Malach, a detective with the Hendersonville Police Department, testified that

he accompanied another detective to serve an arrest warrant on appellant on November 2,

2010. He explained that appellant was arrested, read his Miranda rights, and placed in the

police car. The two detectives spoke to appellant on the thirty- to forty-five-minute drive

back to the police department. During the drive, appellant confessed to entering and robbing

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the home with Jeremy Martin while wearing a bandana over his face. He admitted having

a gun during the incident but asserted that it was not loaded. He explained that the gun was

missing the magazine that held the bullets and that he had to hold the gun in a specific way

to keep the victims from seeing that the magazine was missing. Appellant asserted that he

never intended to use the gun and that he was only there to perpetrate a robbery. Appellant

explained that he and Mr. Martin ran out of the house when they saw that one of the adults

in the home had a gun. After appellant confessed, the detectives took him to the police

department so that he could provide a written statement. However, appellant was unable to

do so at the second interview because appellant fell to the floor and “started to have what

appeared to look like a seizure or some kind of medical incident.” The detectives called an

ambulance. Detective Malach explained that he went to the hospital a short time later and

that appellant exhibited “no signs of being sick or ill.” Appellant informed the detectives that

he was not going to cooperate further without a lawyer.

During cross-examination, Detective Malach stated that appellant’s interview in the

car was not recorded because the police car was not equipped to make such recordings.

Detective Malach agreed that he had no reason to believe that appellant faked having a

seizure.

Mark Sloan, a lieutenant with the LaVergne Police Department who was responsible

for the Crime Suppression Unit, testified that he discovered a large, dark-colored purse lying

on the front steps of the substation where his office was located. He stated that the substation

was locked and was not accessible to the public, so he assumed that a private citizen had

found the purse and left it there for law enforcement to find. Lieutenant Sloan explained that

he turned the purse into the police station and that the purse was eventually given to the

Hendersonville Police Department.

Neal Harris, a detective with the Hendersonville Police Department, testified that he

responded to the scene of a home invasion where two black males had entered the home, held

the family at gunpoint, and stolen a purse. Detective Harris explained that Mr. Martin

became a suspect after text messages to Zachary led him to Kelsey. Through Kelsey,

Detective Harris identified Mr. Martin. Kelsey placed a recorded call to Mr. Martin.

Detective Harris arrested Mr. Martin the morning after the incident. On the drive back to the

police station, Mr. Martin admitted participating in the home invasion and showed the

officers which house belonged to appellant, whom he referred to as “Money.” Ten days later

Mr. Martin and Mr. Woodley identified appellant from a driver’s license photograph.

Detective Harris arrested appellant on November 2. Appellant’s mother provided the

arresting officers with appellant’s medications. The officers then drove to the Lavergne

Police Department to retrieve the victim’s purse that had been found and let appellant use the

restroom before driving back to Hendersonville. The officers read appellant his Miranda

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rights when they got back inside the car because appellant was inquiring about his charges.

Detective Harris stated that appellant initially denied participating in the home invasion.

However, after being confronted with Mr. Martin’s claims, appellant admitted perpetrating

the robbery with a gun, but he asserted that the gun did not have a magazine in it. Appellant

told Detective Martin that he had put a gun to Zachary’s head after Zachary answered the

door and that Mr. Martin had gone upstairs while he remained at the base of the stairs.

Appellant also admitted grabbing a purse before he ran out of the house after Mr. Martin had

fled.

After appellant had provided this statement, the officers took appellant to the police

department so that appellant could write down his statement. However, after appellant was

placed in the interview room, appellant told Detective Harris that he did not feel well, and

the officers called an ambulance. Detective Harris and Detective Malach went to the hospital

afterward, and appellant appeared “fine.” Appellant told Detective Harris that his mother

had asked him not to cooperate with law enforcement without a lawyer. Detective Harris

opined that he “never had any doubts as to who was responsible.” He stated that when he

initially responded to the scene, everyone knew that there had been an orange and a red

bandana but that he received inconsistent statements as to who was actually wearing which

bandana. However, Detective Harris stated that “it was consistent throughout that the first

person through the door, the one that had the gun, the one that held the family on the floor

with the gun, was the taller one and was the one with the black[,] square[-]framed glasses .

. . .”

During cross-examination, Detective Harris agreed that he did not find either the purse

or a gun in appellant’s possession when appellant was arrested. Detective Harris also

conceded that there were no fingerprints, footprints, or DNA linking appellant to the home

invasion. Detective Harris agreed that he never attempted to search either Mr. Martin’s or

Mr. Woodley’s car or home to determine if they had any glasses. The State then rested its

case-in-chief.

Appellant presented two witnesses. Pamela Taylor, appellant’s mother, testified that

appellant had graduated from high school and that while in school, appellant had taken

resource classes in math, English, and reading. Ms. Taylor explained that appellant had a

history of seizures and that he had been prescribed medication for his seizures. Ms. Taylor

testified that on October 17, 2010, appellant was at or within sight of her home for the entire

day. She stated that appellant ate dinner at her home that night and then went upstairs with

his fiancée after the meal. Ms. Taylor asserted that appellant could not have left her home

after the meal without her knowledge because the security alarm was engaged and only she

and her husband knew the code to turn off the alarm. The alarm was not activated that night.

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Sierra Turner, appellant’s fiancée, testified that on October 17, 2010, appellant was

at or within sight of their home for the entire day. She explained that appellant ate dinner

with their family and then she and appellant cleaned the dishes afterward. Ms. Turner stated

that after dinner she and appellant went upstairs to get ready for bed and that she and

appellant slept in the same bedroom that night. Ms. Turner asserted that appellant never left

the house after dinner nor anytime during the night. When Ms. Turner awoke the next

morning, appellant was present. Ms. Turner also stated that she never heard the house alarm

sound that night.

After hearing the testimony presented and reviewing the evidence, the jury convicted

appellant of aggravated burglary, aggravated robbery, employing a firearm during the

commission of a dangerous felony, and three counts of aggravated assault. The trial court

sentenced appellant to incarceration for three years for the aggravated burglary conviction,

twelve years for the aggravated robbery conviction, six years for the firearm conviction, and

three years for each count of aggravated assault. The trial court aligned all sentences

concurrently except the three-year aggravated burglary conviction and the six-year employing

a firearm during the commission of a dangerous felony conviction, which were aligned

consecutively, for a total effective sentence of twelve years.

II. Analysis

Appellant now argues that: (1) there was insufficient evidence to support his

convictions; (2) his conviction for employing a firearm during the commission of a

dangerous felony violates his double jeopardy rights; (3) the trial court erred by refusing to

allow a lay witness to testify regarding appellant’s mental and physical health; and (4) the

trial court erred by refusing to allow appellant to introduce the entirety of his videotaped

interrogation. The State responds that there was sufficient evidence to support appellant’s

convictions; that appellant’s double jeopardy rights were not violated; and that the trial court

properly excluded testimony regarding appellant’s mental and physical health and the video

showing appellant’s seizure. We agree with the State.

A. Sufficiency of the Evidence

Specifically, appellant argues that the evidence at trial was insufficient to prove that

he was one of the perpetrators involved in the home invasion due to the inconsistent

testimony of the witnesses, lack of physical evidence tying appellant to the scene of the

crime, and his two alibi witnesses.

The standard for appellate review of a claim challenging the sufficiency of the State’s

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

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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) (citing Johnson

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

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

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

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

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

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

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

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

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

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.

2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and

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

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

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

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

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

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

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

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

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

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

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

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

To sustain a conviction for aggravated burglary, the State must prove beyond a

reasonable doubt that appellant entered a habitation without the effective consent of the

property owner “with intent to commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-

402(a)(1), -403(a). Aggravated burglary can be proven through direct or circumstantial

evidence. See State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). Aggravated

burglary is a Class C felony. Tenn. Code Ann. § 39-14-403(b).

To support a conviction for aggravated robbery, the State must prove beyond a

reasonable doubt that appellant committed robbery “[a]ccomplished with a deadly weapon

or by display of any article used or fashioned to lead the victim to reasonably believe it to be

a deadly weapon.” Id. § 39-13-402(a)(1). “Robbery is the intentional or knowing theft of

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property from the person of another by violence or putting the person in fear.” Id. § 39-13-

401(a). Aggravated robbery is a Class B felony. Id. § 39-13-402(b).

To sustain a conviction for employing a firearm during the commission of a dangerous

felony, the State must prove beyond a reasonable doubt that appellant employed a firearm

during the commission of a dangerous felony. Id. § 39-17-1324(b)(1). Aggravated burglary

is included in the crimes identified as dangerous felonies. Id. § 39-17-1324(i)(1)(H).

Employing a firearm during the commission of a dangerous felony is a Class C felony.2 Id.

§ 39-17-1324(h).

To support a conviction for aggravated assault, the State must prove beyond a

reasonable doubt that appellant intentionally or knowingly committed an assault that

“involved the use or display of a deadly weapon.” Id. § 39-13-102(a)(1)(A)(iii). “A person

commits assault who . . . [i]ntentionally or knowingly causes another to reasonably fear

imminent bodily injury.” Id. § 39-13-101(a)(2). Aggravated assault is a Class C felony. Id.

§ 39-13-102(e)(1)(A)(ii).

The jury convicted appellant of aggravated burglary, aggravated robbery, employing

a firearm during the commission of a dangerous felony, and three counts of aggravated

assault. Viewed in the light most favorable to the State, the evidence supports these

convictions. The evidence at trial showed that on October 17, 2010, appellant and Mr.

Martin knocked on the door of a home, and after the family opened the door, appellant

entered the home wearing a bandana covering his face and holding a gun. Appellant pointed

the gun at Zachary as he entered the home. The men ordered the three family members in

sight to lie on the ground and demanded to know where the family stored their money and

weapons. However, when the men heard movement upstairs, appellant grabbed Cathy’s

purse, and both men ran out of the home.

Contrary to appellant’s arguments that there was insufficient evidence to prove that

he was one of the perpetrators, Mr. Martin, Mr. Woodley, Chareece, and Kelsey all testified

that appellant was with them on the night of the home invasion and that appellant left

Kelsey’s apartment complex with Mr. Martin for a period of time that coincided with the

home invasion. Kelsey testified that she gave Mr. Martin red and orange bandanas.

Appellant also told Mr. Martin that he wanted to commit a robbery. Furthermore, Mr. Martin

testified that appellant went with him to the home and that appellant wielded a gun during

2

Tennessee Code Annotated section 39-14-1324(h)(1) states that a defendant who does not have a

prior felony conviction at the time of the offense must be sentenced to a mandatory, minimum six-year

sentence. Appellant had no prior felony convictions at the time of the offense, so the trial court properly

sentenced appellant to six years for his firearm conviction.

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the incident. The victims also testified that the perpetrator holding the gun wore glasses

similar to appellant’s glasses. Mr. Martin, Mr. Woodley, and Chareece all testified that

appellant had a bag/purse that he threw out of the car window after the incident. In addition,

Detective Harris testified that after appellant’s arrest, appellant admitted to the commission

of the offenses and that appellant provided specific details about the offense. Although there

were inconsistencies in the testimony regarding the type of glasses worn by appellant on the

night of the crime, appellant’s exact height, and whether appellant wore an orange or red

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

well as all factual disputes raised by the evidence, are resolved by the jury as trier of fact.

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561

(Tenn. 1990). We will not reevaluate the jury’s determinations in that regard. The evidence

here was sufficient to support appellant’s convictions, and appellant is without relief as to

this issue.

B. Double Jeopardy

Appellant argues that his conviction for employing a firearm during the commission

of a dangerous felony violates his double jeopardy rights because both this conviction and

his aggravated robbery conviction arose from the same act or transaction and because all of

the elements of this conviction are included within the elements of aggravated robbery. The

State concedes that appellant’s convictions for aggravated robbery and employing a firearm

during the commission of a dangerous felony all arose from the same criminal episode.

However, the State argues that the elements of each crime are different; therefore, appellant’s

double jeopardy rights were not violated.

The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, made applicable to the states through the Fourteenth Amendment, provides that

“[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. Courts have interpreted the Double Jeopardy Clause as

providing three distinct protections: “(1) protection against a second prosecution for the same

offense after acquittal; (2) protection against a second prosecution for the same offense after

conviction; and (3) protection against multiple punishments for the same offense.” State v.

Watkins, 362 S.W.3d 530, 541 (Tenn. 2012) (citations omitted). “The United States Supreme

Court has declared that ‘[w]ith respect to cumulative sentences imposed in a single trial, the

Double Jeopardy Clause does no more than prevent the sentencing court from prescribing

greater punishment than the legislature intended.’” Id. at 542 (quoting Missouri v. Hunter,

459 U.S. 359, 366 (1983)). In such cases, also known as “single prosecution cases,” the

Double Jeopardy Clause functions to prevent trial courts from fixing punishments in excess

of that which was authorized by the legislature. Watkins, 362 S.W.3d at 542. “Single

prosecution cases” lend themselves to claims of multiple punishment in two distinct ways,

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“unit-of-prosecution” and “multiple description” claims. Id. at 543. “Unit-of-prosecution

claims arise when defendants who have been convicted of multiple violations of the same

statute assert that the multiple convictions are for the ‘same offense.’” Id. Our appellant at

bar was convicted of violating two different statutes, requiring this court to employ an

analysis of a “multiple description claim” on direct appeal. See id. “Multiple description

claims arise in cases in which defendants who have been convicted of multiple criminal

offenses under different statutes allege that the convictions violate double jeopardy because

the statutes punish the ‘same offense.’” Id. at 544.

In State v. Watkins our supreme court held:

In multiple description cases, when determining whether two statutes define

the same offense, the United States Supreme Court long ago declared that

“where the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which

the other does not.”

Id. (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). An analysis of

Blockburger examines “the statutory elements in the abstract, without regard to the proof

offered at trial in support of the offenses.” Watkins, 362 S.W.3d at 544. Under Blockburger,

“[i]f each offense includes an element that the other offense does not, ‘the Blockburger test

is satisfied, notwithstanding a substantial overlap in the proof offered to establish the

crimes.’” Id. (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)); see also

Illinois v. Vitale, 447 U.S. 410, 416 (1980) (noting that Blockburger “focuses on the proof

necessary to prove the statutory elements of each offense, rather than on the actual evidence

to be presented at trial”). Our supreme court opined:

The Blockburger test has been credited with serving at least two

purposes. First, the Blockburger test is described as remaining “loyal” to the

text of the Double Jeopardy Clause, which proscribes multiple punishment for

the “same offense” and does not proscribe multiple punishment for the “same

conduct.” Second, the Blockburger test has been characterized as preserving

the appropriate separation of powers by focusing the analysis upon legislative

intent, rather than upon a defendant’s conduct or the proof introduced at a

particular trial.

The Blockburger test also has been described as promoting “two

important practical implications.” First, because the Blockburger test evaluates

the statutory elements of the offenses without reference to the proof offered at

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trial, “a motion to dismiss one count or one indictment based on multiple

punishment grounds can be decided prior to trial by simply comparing the

statutes, and a defendant who is charged improperly will not have to undergo

the anxiety of a trial before the error is redressed.” Second, because the

Blockburger test focuses on statutory elements rather than proof, “a court can

review a multiple punishment claim without a time-consuming review of the

trial transcript.”

Watkins, 362 S.W.3d at 544-45.

Application of Blockburger involves a two-prong analysis; courts must determine the

threshold inquiry under Blockburger, which is “whether the alleged statutory violations arise

from ‘the same act or transaction.’” Id. at 545. If the answer is negative, there cannot be a

violation of double jeopardy, thus courts may end the analysis here. Id. If the answer is

affirmative, a double jeopardy violation could be present, and the court must look to the

second factor of Blockburger. Id. (emphasis added). “Where the threshold is met, meaning

the convictions arose from the same act or transaction, a court next examines the statutes to

determine whether the crimes of which the defendant was convicted constitute the same

offense.” Id. (citing Blockburger, 284 U.S. at 304). If each offense includes an element not

contained in the other offense, the statutory offenses are distinct. Id. at 545-46 (citing

Blockburger, 284 U.S. at 304). In this case, courts presume that the legislative body intended

to allow for multiple or separate punishments for the offenses. Id. at 546.

Both appellant and the State agree that the first prong of the Blockburger test has been

met, and we agree. Therefore, we will focus our analysis on the second prong of the

Blockburger test: an examination of the statutes to determine if appellant’s aggravated

robbery conviction and employing a weapon conviction constitute the same offense.

Tennessee Code Annotated section 39-13-401 states that aggravated robbery is

robbery “[a]ccomplished with a deadly weapon or by display of any article used or fashioned

to lead the victim to reasonably believe it to be a deadly weapon.” “Robbery is the

intentional or knowing theft of property from the person of another by violence or putting the

person in fear.” Tenn. Code Ann. § 39-13-401(a). The trial court properly instructed the jury

that the elements of this offense are:

(1) that the defendant knowingly obtained or exercised control over property

owned by Cathy []; and

(2) that the defendant did not have the owner’s effective consent; and

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(3) that the defendant intended to deprive the owner of the propery; and

(4) that the defendant took such property from the person of another by the use

of violence or by putting the person in fear; and

(5) that the defendant took such property intentionally or knowingly; and

(6) that the defendant accomplished this act with a deadly weapon or by

display of any article used or fashioned to lead the alleged victim to reasonably

believe it to be a deadly weapon.

In contrast, Tennessee Code Annotated section 39-17-1324(b)(1) criminalizes

employing a firearm during the commission of a dangerous felony. Included in the crimes

identified as dangerous felonies is aggravated burglary. Id. § 39-17-1324(i)(1)(H). The trial

court properly instructed the jury that the essential elements of this offense are:

(1) that the defendant employed a firearm; and

(2) that the employment was during the commission of or attempt to commit

[a]ggravated [b]urglary; and

(3) that the defendant acted either intentionally, knowingly[,] or recklessly.

The only element of these offenses that is the same is that the defendant must employ

a firearm. The other elements of employing a firearm during the commission of a dangerous

offense are different and, therefore, distinct from the elements of aggravated robbery.

Because the elements of these two crimes are different, these are two separate offenses, and

appellant is without relief as to his Double Jeopardy claim.

C. Admissibility of Evidence (Appellant’s Arguments III and IV)

Appellant also argues that the trial court erred by refusing to allow his mother to

testify regarding appellant’s mental and physical health and by refusing to allow appellant

to introduce the entirety of his videotaped interrogation. The trial court determined that both

of these offers of proof were irrelevant to the proceedings and excluded them from trial.

The determination of whether evidence is relevant and admissible at trial is a matter

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

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

S.W.2d 867, 871 (Tenn. 1996). “Relevant evidence” is “evidence having any tendency to

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make the existence of any fact that is of consequence to the determination of the action more

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

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

evidence, or rules of general application. Tenn. R. Evid. 402. One such exception is that

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

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

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403. “Unfair prejudice” is “‘[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 Tenn. R. Evid. 403, Adv. Comm.

Note).

1. Lay Witness Testimony

At trial, appellant sought to introduce testimony from appellant’s mother regarding

appellant’s mental health history, his past treatment facilities, and diagnosis. Appellant also

sought to have his mother testify regarding his placement in resource classes and his

reactions to questions and stressful situations. Although none of this testimony was placed

on the record for appellate review, appellant argues that this testimony was relevant as to his

ability to understand the officer’s questions during his interrogation in the back of the patrol

car, his ability to understand the consequences of confessing to the home invasion, and

whether appellant actually confessed in the patrol car because the confession was not

recorded.

The trial court limited Ms. Taylor’s testimony to her personal knowledge of

appellant’s level of education, his having been a resource student, and his suffering from

seizures. The trial court determined that testimony regarding appellant’s mental history and

understanding level at some other point in time was irrelevant to the proceedings and

exceeded the scope as to what appellant’s mother could testify.

To the extent that we can review whether this testimony was relevant without a proffer

of Ms. Taylor’s testimony to determine the exact testimony challenged, we conclude that the

trial court did not abuse its discretion in limiting Ms. Taylor’s testimony. There was no other

testimony or evidence that indicated that appellant did not understand Detective Harris’s

questions or answer the detective’s questions honestly. Appellant also did not file a motion

to suppress his confession on the grounds that he was coerced or was intellectually disabled.

Furthermore, appellant’s reactions to a past instance of conduct are irrelevant to show

whether appellant understood what was occurring during this particular interrogation.

Appellant’s mother was also not present during appellant’s interrogation and could not speak

to his mental state at the time. The trial court properly limited Ms. Taylor’s testimony to her

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knowledge of appellant’s level of education, appellant’s enrollment in resource classes, and

appellant’s tendency to have seizures.

However, even if a proffer of proof had revealed that this testimony was relevant to

an issue at trial, any error by the trial court would be harmless due to the overwhelming

evidence of guilt against appellant. Finally, to the extent that appellant also argues that the

trial court erred by failing to allow Sierra Turner to similarly testify, appellant has waived

this argument by failing to address her testimony in the body of his brief. See Tenn. Ct.

Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to authorities,

or appropriate references to the record will be treated as waived in this court.”).

2. Videotaped Confession

At trial, appellant also sought to play the entirety of his videotaped interrogation at the

Hendersonville Police Department, which showed appellant having a seizure. Appellant

argues that the video was relevant because it details the conversations between the officers

and appellant and it elucidates appellant’s mental health and state of mind immediately after

his confession in the patrol car and prior to his having a seizure. Appellant also argues that

the video shows appellant having an actual seizure, which would have rebutted Detective

Malach’s implication that appellant faked having a seizure because appellant exhibited no

signs of illness later at the hospital.

After viewing the video, the trial court described the contents of the video as follows:

It looks like [appellant] comes in the room. . . . [The officers] tell him

he’s going to jail. They give him a Coke. Then they leave the room. He takes

off his glasses, and the [d]etective returns. And he talks about seizures and

getting dizzy[,] and for about 7 minutes and 40 seconds to 17 minutes[,] he’s

on the floor appearing to have a seizure. There are sounds coming from

[appellant]. Talking sounds. He throws up on the floor. Gives all the

appearance of a seizure.

After hearing the arguments of appellant and the State, the trial court stated:

I find that there is no relevance whatsoever in the fact of watching him

having a seizure. Anything that the defense wants to accomplish can [be]

accomplish[ed] through thorough and detailed cross-examination about any of

the things that been testified to. There’s been no denial that a seizure

occurred; otherwise we could do it, but I see no relevance. I think it probably

confuses issues.

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We determine that the trial court did not abuse its discretion in this regard. The video

does not show any substantive or substantial conversation between appellant and the

detectives in which appellant’s state of mind would be revealed. In addition, although

appellant argues that showing appellant’s actual seizure would counteract any implication

that appellant faked his seizure, there is no such implication in the record. Detective Malach

testified that appellant “fell on the floor and started to have what appeared to look like a

seizure or some kind of medical incident. So we called the ambulance.” Detective Malach

also stated, “They took him to the hospital, and a short period of time later we went back to

the hospital, and he was there. He had no signs of being sick or ill.” However, Detective

Malach did not testify that he believed appellant’s seizure was not genuine. To the contrary,

on cross-examination, Detective Malach agreed that he had no reason to believe that

appellant faked having a seizure. The trial court did not abuse its discretion determining that

the video had no relevance to a material issue and in refusing to allow the recording to be

played for the jury. Appellant is without relief as to this issue.

D. Merger

We note that a colleague has filed a separate opinion in which he concludes that the

conviction for aggravated robbery and the conviction for one of the aggravated assault counts

should be merged. However, this issue was not raised by the parties, so our review is limited

to matters of plain error. After our review of State v. Watkins, 362 S.W.3d 530 (Tenn. 2012),

and the subsequent cases concerning this issue, we have concluded that the trial court’s

failure to merge the convictions and correct the judgments does not amount to a breach of

a clear and unequivocal rule of law. See State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn.

Crim. App. 1994).

CONCLUSION

Based on the parties’ briefs, the record, and the applicable law, we affirm the

judgments of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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