State of Tennessee v. Jerry Dixon

12/15/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 13, 2017 Session

STATE OF TENNESSEE v. JERRY DIXON

Appeal from the Criminal Court for Sumner County

No. 584-2012 Louis W. Oliver III, Judge

No. M2016-01517-CCA-R3-CD

The Defendant, Jerry Dixon, was convicted by a Sumner County Criminal Court jury of

reckless endangerment, a Class A misdemeanor, for which he received a sentence of

eleven months, twenty-nine days, with sixty days to be served in jail, 180 days to be

served on house arrest, and the balance to be served on probation. See T.C.A. § 39-13-

103 (2014). On appeal, he contends that the evidence is insufficient to support his

conviction and that the trial court erred in excluding evidence of a witness’s prior

inconsistent statement. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN

EVERETT WILLIAMS and ROBERT L. HOLLOWAY, JR., JJ., joined.

Peter J. Strainse (at trial and on appeal), Nashville, Tennessee, and William L. Moore, Jr.

(at trial), Gallatin, Tennessee, for the appellant, Jerry Dixon.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;

Lawrence Ray Whitley, District Attorney General; C. Ronald Blanton, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant and the victim, Ricky Troutt, were former partners in several

business ventures. Their business dealings ended in litigation, and at the time of the

events relevant to this case, their relationship was strained to the extent that they did not

speak to each other. In early 2012, the Defendant and Eli Cornell engaged in a scheme to

play a practical joke on the victim, whereby Mr. Cornell posed as a wealthy individual

who wished to have the victim build a house for him. The Defendant’s goal was to

embarrass the victim, who was in the construction industry.

The present case relates to a physical altercation between the victim and the

Defendant that occurred at Longhorn Steakhouse on February 21, 2012, and in which the

victim received significant cuts to his face, neck, and right arm. The Defendant was

charged with attempted second degree murder and was convicted of the lesser included

offense of misdemeanor reckless endangerment.

At the trial, a 9-1-1 call was introduced through a dispatcher. In the call, a person

who identified herself as Paige Brown reported that two men were involved in a fight at

Longhorn Steakhouse. She said that both men had cuts to their face, that there was a lot

of blood, and that a man she knew as Rick Troutt had a man whose name she did not

know pinned down. She said initially that the unknown man had a knife but reported

later in the call that the restaurant’s cook had taken the knife from the unknown man.

Sumner County Sheriff’s Deputy Chris Vines, a former Gallatin Police officer,

responded to the scene. He testified that he found the Defendant lying on the restaurant’s

foyer floor with the victim kneeling next to and holding down the Defendant. Deputy

Vines said that the Defendant’s forehead was bleeding badly and that the victim’s neck

was “sheeting” or spurting blood. Deputy Vines said the Defendant was covered in

blood. Deputy Vines said blood was on the walls, windows, and glass doors of the foyer.

He said a knife was inside the restaurant near an umbrella stand. He said the Defendant’s

glasses, the victim’s glasses, and a charm from the Defendant’s necklace were on the

foyer floor. Deputy Vines was unaware of Officers Kent or Shockley having been told

by an elderly, male restaurant patron that the victim had been the aggressor.

William Elijah Cornell testified that he met the Defendant and Roger Harrison six

to eight weeks before the February 21, 2012 incident and that he had met the victim once.

Mr. Cornell said that he and the Defendant developed a friendship and that the Defendant

told Mr. Cornell about the Defendant’s disdain for the victim due to their past business

dealings. Mr. Cornell said the Defendant wanted to play a practical joke on the victim to

make the victim look foolish in front of the victim’s bankers. Mr. Cornell said the

Defendant asked Mr. Cornell to talk to the victim about having the victim build Mr.

Cornell a large home in “the Plantation.” Mr. Cornell said the plan was to raise the

victim’s hopes about building the home and then to tell the victim that Mr. Cornell was

not interested because the Defendant had said the victim was “an A-hole.” Mr. Cornell

explained that the victim would have to explain to his bankers that he did not need to

borrow money for the project. Mr. Cornell said he went along with the scheme because

he wanted the Defendant to help him finance a trucking company.

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Mr. Cornell testified that, in furtherance of the scheme, he met with the victim and

posed as a wealthy, disbarred attorney from Maine and discussed having a house built

with money he had obtained fraudulently. Mr. Cornell recorded their conversation. He

later met with the Defendant and Mr. Harrison and gave the recording to the Defendant,

who was pleased with its contents.

Mr. Cornell testified that on February 21, 2012, he had drinks with the Defendant

at Longhorn Steakhouse. Mr. Cornell said that the Defendant wanted him to call the

victim but that Mr. Cornell did not want to because he had to be up early the next day.

Mr. Cornell thought, however, that he had called the victim as he and the Defendant sat

outside in Mr. Cornell’s car. Mr. Cornell said he sensed that the victim knew he was the

subject of a joke. Mr. Cornell said that he left the premises, that he left the Defendant

there, and that he assumed the Defendant returned to the restaurant. Mr. Cornell said that

he received a call from the victim, that the victim asked his name and other questions,

and that Mr. Cornell called the Defendant and told him the victim sensed he was the

subject of a joke. Mr. Cornell said the Defendant stated, “[H]e’s right here with me.”

Mr. Cornell heard the Defendant say, “You’ve been had, buddy,” and heard the victim

say, “[N]o, you’ve been had, buddy.” Mr. Cornell tried to call the Defendant later but did

not receive an answer. Mr. Cornell said that on his way home, he saw police and

emergency vehicles at Longhorn Steakhouse but that he did not stop because he had

consumed three beers and did not want to be charged with driving under the influence.

He said that the police left a message for him during the night and that he contacted them

the next day.

Mr. Cornell did not recall telling Investigator Messler that Mr. Harrison had

instigated Mr. Cornell’s contacting the victim about building a house. Mr. Cornell said,

however, that if he had said this when he was interviewed on February 24, 2012, his

memory at the time of the interview would be more accurate than his memory at the time

of the trial. He acknowledged that a transcript of his interview reflected that Mr.

Harrison had instigated the practical joke and that Mr. Cornell had characterized the

Defendant as “standoffish.”

Retired Gallatin Police Officer Danny Deyhle identified photographs he took of

the scene, the victim, and the Defendant, and the photographs were received as exhibits.

Some of the photographs depicted a ring on the Defendant’s left hand, a sutured

laceration several inches long on the victim’s right arm, and four cuts on the side of the

victim’s face. Officer Deyhle said he collected a leather coat, a cell phone, eyeglasses,

and a pocketknife from the scene. He said that to the best of his knowledge, samples of

blood spatter he collected from the scene were not submitted to the Tennessee Bureau of

Investigation (TBI) for analysis. He said that no analysis was necessary because two

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known individuals were involved in the altercation and that analysis was used to identify

unknown individuals.

Candice Pewitt testified that she was the Longhorn Steakhouse bartender at the

time of the altercation. She knew the Defendant as a regular customer. She said that on

February 21, 2012, the Defendant and a friend of the Defendant’s arrived shortly after

4:00 p.m. She said that the Defendant’s friend drank several beers and that the Defendant

drank a double margarita, a second margarita, and part of a third. She said that a note she

wrote on the back of a receipt for the Defendant’s purchases on the date of the incident

indicated the Defendant had been at the restaurant from 4:15 to 7:45 p.m. She did not

think the Defendant was intoxicated.

Richard Miller, M.D., and expert in trauma surgery, testified that on February 21,

2012, the victim was transported by a Life Flight helicopter to Vanderbilt Medical Center

and that he operated on the victim due to a life-threatening injury. Dr. Miller said the

victim had four major slash wounds to his face, neck, and arm. Regarding a fifteen-

centimeter right-side facial cut, Dr. Miller said that in his opinion, the cut was first

inflicted near the victim’s ear and extended toward the victim’s mouth. Dr. Miller said

the victim had a smaller, two centimeter cut on the right side of the face, as well.

Regarding an eleven-centimeter cut on the right side of the victim’s neck, Dr. Miller

stated his opinion that the cut was deeper in the front than the back, indicating that the cut

began in front and traveled back. He said the victim also had a six-centimeter arm cut

and a two-centimeter facial cut.

The victim, a self-employed home builder, testified that he had known the

Defendant for about thirty years and that, at one time, they had been friends and business

partners. They began dissolving their business partnership in August 2006, and litigation

pertaining to the dissolution concluded in approximately 2008. The victim said that the

dissolution had been acrimonious and that he and the Defendant had not spoken since

August 2006.

The victim testified that he became acquainted with Eli Cornell, whom he knew as

“Will,” when Mr. Cornell called him about building a home. The victim said Mr. Cornell

claimed he was moving from “Boston or something.” The victim said that he met with

Mr. Cornell, that they looked at properties where a house might be built, and that Mr.

Cornell called him later about seeing additional properties.

Relative to the events of February 21, 2012, the victim testified that he and his

wife went to Longhorn Steakhouse around 7:00 p.m. He said that because the restaurant

was crowded, they went into the bar, where he saw the Defendant. The victim said his

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wife offered to trade seats with him in order to avoid his having to look at the Defendant

during the meal. He said that he had seen the Defendant talking to another man at the bar

and that he saw them leaving the bar and walking toward the restaurant’s door. The

victim said he recognized Mr. Cornell as the person with whom he had spoken about

building a house. The victim said that his cell phone rang a few minutes after the

Defendant and Mr. Cornell left, that his phone displayed the contact name “Will, new

house.” The victim said he returned the call and went to the restaurant’s window. He

saw the Defendant and Mr. Cornell in a car in the parking lot. The victim said Mr.

Cornell stated he wanted to schedule a meeting when Mr. Cornell would be back in town.

The victim said he saw the Defendant and Mr. Cornell laughing and talking. The victim

said he had realized that Mr. Cornell was not the person he had represented himself to be.

The victim testified that he talked with his wife for a few minutes, then went to the

restroom. He said the Defendant was at the urinal. The victim said the Defendant never

knew the victim was in the restroom. The victim said he went outside, called Mr.

Cornell, and asked Mr. Cornell his last name. The victim said Mr. Cornell identified

himself as Mr. Connall or Mr. Canal. The victim said Mr. Cornell stated that a realtor

told Mr. Cornell that the victim had an issue with a past business partner. The victim said

he stated that he found this unusual because the victim was in discussions with a family

member of the realtor about building a house. The victim said he returned to the

restaurant, where his wife tried to make notes of what she overheard the Defendant

saying. The victim heard the Defendant say, “[J]ust tell him that. He’ll believe that. Just

get him up there. You know, you can tell him that right there. Just get him up there

Thursday.” The victim said the Defendant had been drinking and was boisterous.

The victim testified that he walked to the bar, tapped the Defendant on the

shoulder, and said, “[S]cam’s up.” The victim said the Defendant stated, “[B]y God, I’ve

been scamming you,” and “[Y]ou’re not coming up on me in here.” The victim said that

the Defendant “body checked” him and that the victim said, “[N]ot in here. If you want

me to beat your a--, we’ll have to go outside.” The victim said the Defendant stood up

and followed him out of the bar. The victim said they were six to eight feet from the

hostess stand as they walked out. The victim said that as he went through the double

doors at the front of the restaurant, he felt a sting that felt like a razor cut, followed by “a

massive amount of pain.” He said he turned around and hit the Defendant above the left

eye as hard as he could with his right hand. The victim said he did not hit the Defendant

until after the Defendant cut him. The victim said that when he hit the Defendant, the

Defendant hit the floor and that the victim “jumped” on top of the Defendant and

continued hitting him. The victim said the Defendant was cutting and stabbing him with

the Defendant’s left hand. The victim saw blood shooting from his body. The victim

said that he hit the Defendant until he felt like he was going to pass out and that

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eventually, he was able to hold down the Defendant’s left hand with the victim’s right

hand. The victim was unaware of who removed the knife from the Defendant’s hand.

The victim did not recall a cook’s saying the victim was the aggressor. The victim said

that he was taken by helicopter to Vanderbilt Medical Center and that he still had scars

and numbness in his ear and on the side of his face.

The victim testified that he did not drink alcohol. He said his intent in going

outside had been to engage in a fist fight, not a knife fight. He acknowledged that he had

filed a lawsuit against the Defendant and Longhorn Steakhouse related to his injuries.

The victim said that he felt the neck cut first, that it occurred as he went through the

doors, that the cut had gone from front to back, and that it was deeper in front. He said

that the cut to his face was sustained after he was through the doors and in the foyer.

The victim testified that he had not finished eating when he became aware the

Defendant and Mr. Cornell were outside laughing, likely at his expense. He

acknowledged that he could have requested his check, asked for his food to be packaged

to go, and ignored any future calls from Mr. Cornell posing as a prospective home buyer.

The victim said that instead, he sat with his wife and continued to eat dinner.

The victim acknowledged that he had encountered the Defendant at a hospital on

February 17, 2012 without incident. The victim said that he and a companion of the

Defendant had spoken to each other in passing.

The victim denied that, during the previous litigation between himself and the

Defendant relative to their business dealings, he had told Roger Harrison that the

Defendant “had a butt whipping coming to him.” The victim agreed that signs stating

“Ricky Troutt, contractor bankrupt” appeared and disappeared from his construction sites

and that he strongly suspected the Defendant’s involvement. Relative to gossip at a truck

stop restaurant in which the Defendant had an ownership interest, the victim said he had

heard, “I was [the Defendant’s] main topic of interest.”

The victim’s wife testified that the victim had not spoken to the Defendant for

years following the dissolution of their business partnership. She said that on February

21, 2012, she and the victim had dinner at Longhorn Steakhouse. She said that when she

noticed the Defendant seated at the bar, she asked the victim to swap seats with her. She

said the victim drank tea with his meal. She said she overheard the Defendant’s

companion say, “[D]on’t get a DUI,” or something similar. She said that as the

Defendant’s companion left, the victim recognized the man as “Will,” the person who

had called about having the victim build a house for him. She said that the Defendant

left shortly after Will and that the victim went to the window and looked into the parking

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lot. She said the victim returned to the table and received a cell phone call from “Will,

new house” and did not answer. She said she urged the victim to return the call in order

to determine what was happening in light of what they had just seen at the bar. She said

the victim returned the call, went to the window, and returned to the table after the call.

She said the victim went to the restroom, returned to the table and said the Defendant had

been in the bathroom but had not seen him. She said that the victim did not know Will’s

last name and that he went outside to call Will to get the information. The victim’s wife

said the Defendant returned to the bar while the victim was outside. She overheard the

Defendant on a cell phone call with a person she assumed had been the person sitting at

the bar with the Defendant. She said the Defendant stated, “[I]f you’re caught, tell him,

‘you’ve been punked by Red.’” Other evidence showed that the Defendant’s nickname

was Red.

The victim’s wife testified that the victim returned to the table and that she showed

him the notes she made in her cell phone relative to the Defendant’s conversation. She

said the victim walked up to the Defendant, tapped the Defendant’s shoulder, and said,

“[S]cam’s up.” She said the Defendant turned, looked angry and had a red face, said,

“I’ve been scamming you,” and “body bumped” the victim. She said that the Defendant

said, “[Y]ou’re not going to walk up on me in here,” and that the victim responded,

“[W]ell, we’ll take it outside.”

The victim’s wife testified that the victim walked toward the door with the

Defendant walking quickly a couple of feet behind him. She said she paid the bill and

started to leave. She saw the victim and the Defendant going into the foyer. She said she

saw the Defendant’s “shoulders and body go up . . . into” the victim’s right side. She said

that as she reached the foyer’s glass doors, she saw the victim turn with his right arm up.

She said the victim’s face and neck were cut “wide open.” She saw the victim hit the

Defendant once, which knocked the Defendant to the ground. She said that the

Defendant had a knife in his left hand and that the victim held the Defendant’s left hand

to the ground with the victim’s right hand and the Defendant’s body with the victim’s left

forearm to prevent the Defendant from continuing to stab the victim. When asked if

anyone else was nearby, the victim’s wife said that the restaurant’s hostess was the only

other person and that the hostess was behind her at the hostess stand. The victim’s wife

said that the victim struggled to hold down the Defendant’s arm, that the victim was

becoming weak from blood loss, and that the Defendant continued to try to stab the

victim. She said a person she thought was a cook came from the back of the restaurant

and took the knife from the Defendant.

Paige Brown testified that on February 21, 2012, she was a high school senior and

that she worked at the time as a hostess at Longhorn Steakhouse. She knew the

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Defendant and the victim as restaurant customers. She said the Defendant and a male

companion sat at the bar that evening and that, due to the wait for dining room seating,

the victim sat at a high-top bar table. She said the Defendant went outside to smoke, as

was his custom when he was at the restaurant. She said the Defendant’s companion went

outside with the Defendant.

Ms. Brown testified that when she was in the dining room, she noticed the

Defendant and the victim “chatting” at the bar. She was not alarmed by their talking and

said they were not loud. She saw the victim walking out with the Defendant “a couple of

steps behind him.” She said that she could tell from their body language that they were

heated and upset and that they walked in a “fury.” She said that as the men were in the

foyer, the victim stopped, turned around, and swung at the Defendant. She said the men

started fighting, with “[n]either . . . getting any big hits in.” She said that the Defendant

ended up on the ground against the outside doors and that the victim was on top of the

Defendant punching the Defendant as hard as he could. She said that the Defendant had

a knife, that the victim held the Defendant down, and that “Seth” tried to kick the knife

from the Defendant’s hand and tried to step on the Defendant’s hand to get him to release

the knife. She said that eventually, “the knife got out of [the Defendant’s] hand and we

kicked it into the restaurant.” Ms. Brown said she first saw blood when the victim turned

to swing at the Defendant. She said she saw blood and then saw the victim swing at the

Defendant.

Ms. Brown testified that witnessing the incident had been traumatic. She said she

spoke and gave a handwritten statement to law enforcement officers that night at the

scene and gave a video recorded statement at the police department a few days later. She

acknowledged that she had been interviewed by a defense investigator and that she had

testified at a preliminary hearing. She said her trial testimony was “as clear as I can

possibly remember.”

Ms. Brown was shown a transcript of the recorded statement she gave to the police

a few days after the incident, and she acknowledged that she had said she had not seen

blood on the victim’s face when he turned around to punch the Defendant. She also

acknowledged that she had said the victim punched the Defendant once, that the

Defendant brought up his hand, and that she had not seen anything in the Defendant’s

hand. She acknowledged that she had said, “I’d say the third or fourth punch, I saw a

whole bunch of blood.” She agreed that she had not told the police investigator that she

saw blood as soon as the victim turned around and that she had said she had not seen

blood on the victim or a knife when the men went through the foyer doors. She

acknowledged that when a police investigator asked if she agreed with a statement that

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the Defendant made a furtive move toward the victim as they reached the foyer, she had

said, “I don’t think so.”

Regarding her prior statement to a defense investigator, Ms. Brown recalled

stating that when the Defendant walked past her, he had his left hand in his pants pocket

and that when the men were in the foyer, she saw the victim suddenly and without

provocation turn and punch the Defendant in the jaw with his right hand. She recalled

stating that the Defendant and the victim exchanged a few blows while the Defendant had

his left hand in his pocket, that the Defendant removed his hand after each man had

thrown about three punches, and that the men continued to fight.

Regarding her prior testimony at the preliminary hearing, Ms. Brown recalled

testifying that she saw the victim walk out with the Defendant close behind him, that the

victim paused for a second and punched the Defendant’s face with his right hand when

they reached the foyer, that she did not see the Defendant do anything to the victim

before the victim hit the Defendant, and that the Defendant had been walking with his left

hand in his pocket. She agreed that she had testified previously that the Defendant was a

regular customer and that his general practice was to walk with his left hand in his

pocket. She also agreed she had testified that after the victim punched the Defendant’s

face, the men shuffled but neither made hits that caused injuries. She acknowledged she

had testified that the Defendant’s hand was still in his pocket when the victim threw the

first punch. A transcript of her preliminary hearing testimony was received as an exhibit.

Seth Lazenby, a former Longhorn Steakhouse culinary professional,

acknowledged prior convictions for felony forgery and misdemeanor theft. He testified

that he recognized the Defendant as a regular bar customer but did not know his name.

Mr. Lazenby said that on February 21, 2012, he was working in the kitchen when a

manager ran in and said a “bad” fight was happening. He said that he and a cook went

into the front of the restaurant and saw the fight in progress but did not see the beginning

of the fight. He said that the Defendant was on the ground, that the victim was on top of

the Defendant struggling to hold the Defendant down, and that the Defendant had a knife

in one hand. Mr. Lazenby said the victim was unable to continue fighting. Mr. Lazenby

said that the Defendant’s arm that held the knife was moving and that Mr. Lazenby was

afraid of being cut. Mr. Lazenby said he bent the Defendant’s hand around an open door,

stomped on the Defendant’s hand until the Defendant released the knife, and slid the

knife out of the Defendant’s reach with Mr. Lazenby’s foot. Mr. Lazenby said the victim

was bleeding badly onto the Defendant. He agreed he told a police officer that an old

man told him he had the “wrong person” before he stepped on the Defendant’s hand. Mr.

Lazenby said the man had stood in front of the hostess stand and had held the door open

for patrons who left the restaurant.

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Gallatin Police Sergeant Christian Booth testified that he interviewed the

Defendant at the Sumner Regional Medical Center. Sergeant Booth said the Defendant

had a small laceration above the left eye, which was swollen and red. Sergeant Booth

said he confirmed with the Defendant and the nurses that the Defendant had not been

given pain medication. Sergeant Booth said the Defendant was calm, logical, and

coherent. Sergeant Booth said that he spoke with the Defendant for about an hour, that

he recorded the interview, and that the Defendant stated the following: The Defendant

arrived at Longhorn Steakhouse around 5:30 p.m. The Defendant stated, initially, that he

had been alone, but after being confronted with a witness statement that he had been with

someone, he said he had been with “Eli.” The Defendant claimed that he knew Eli from

having seen him in bars and that he did not have any contact information. The Defendant

said that, while he sat at the bar, the victim approached and stated that if the Defendant

would come outside, the victim would “whip his a--.” The Defendant stated that he

followed the victim and that they got into a fight in the foyer. The Defendant stated that

he was hit a few times, that he was knocked to the ground, and that he cut the victim.

Sergeant Booth testified that he recorded a second interview with the Defendant, which

took place after the Defendant underwent a medical scan.

The recordings of Sergeant Booth’s interviews with the Defendant were played for

the jury. In the recordings, the Defendant stated that he and the victim had been business

partners but were not on good terms because the victim had stolen money from the

Defendant. He said that February 21, 2012, was the first time they had spoken. The

Defendant stated that he had been alone but, when told by Sergeant Booth that witnesses

said another man had been with him, the Defendant said “Eli” had been there earlier but

that he did not know how to contact Eli. The Defendant said that although he had

ordered a meal at the restaurant, he did not have the opportunity to eat it. He agreed he

had consumed three to four margaritas but said that he would have been “okay to drive”

if he had eaten. He said he had not been bothering anyone. He said that before he

ordered his meal, he had drinks with and talked to Eli. The Defendant said they had

walked outside to talk about the silver market. The Defendant said that after he ordered,

the victim walked up and said he would “whip [the Defendant’s] a--,” that the Defendant

followed the victim to the foyer, and that the victim turned and started hitting the

Defendant. The Defendant said that he had “not really” expected the victim to hit him,

that he had not thought a fight would occur, and that he thought the victim “was going to

blow off a little steam.” The Defendant was unsure if he already had his hand in his

pocket and if he had his knife in his hand when the victim hit him. The Defendant

thought he had not retrieved the knife before the victim hit him but was unsure. The

Defendant said that he was left-handed and that the knife was in his left pocket. The

Defendant did not know whether he was standing or on the ground when he retrieved the

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knife. The Defendant said the victim “definitely” hit him first and repeatedly denied that

he cut the victim before the victim hit him. The Defendant said that if witnesses stated he

cut the victim first, that was untrue. The Defendant did not know why, if he and the

victim had faced each other, that the victim had a cut on the back of the neck. He said he

did not cut the back of the victim’s neck but later said he did not know where he cut the

victim. When asked if he had cut the victim’s neck and the victim had turned and hit the

Defendant, the Defendant said, “That’s definitely not correct.” The Defendant said he

just tried to get the victim off him. The Defendant did not know how many times the

victim hit him and stated he swung at the victim with a knife once or twice. The

Defendant said he did not know how many times the victim hit him before the Defendant

cut the victim, but he later said two to three times. The Defendant then said he swung the

knife the first or second time the victim hit him. The Defendant then said the victim hit

him “a time or two” or “two or three times” and knocked him against the wall, at which

point the Defendant swung the knife. The Defendant said that he was not the aggressor

and that he thought the victim was going to hurt him “bad.”

Regarding data Sergeant Booth obtained from a search warrant he executed for the

Defendant’s cell phone, Sergeant Booth testified that the Defendant had several incoming

calls to a specified telephone number on February 7, 14, 15, 17, 20, and 21, 2012. The

Defendant also had outgoing calls to this number on February 14, 15, 20, and 21. The

prosecutor did not ask Sergeant Booth if he determined the owner of the telephone

number. On cross-examination, Sergeant Booth agreed that a conversation with the

Defendant’s stepdaughter “set [him] on the path of calling Roger Harrison” and that this

had been how he determined Eli Cornell’s telephone number.

Gallatin Police Detective James Kemp testified that he spoke with the Defendant

at the hospital. Detective Kemp said that the Defendant appeared to have been “beat up,”

that the Defendant was coherent, and that the Defendant stated he “felt fine.” Detective

Kemp said the Defendant stated he had received pain medication. Detective Kemp stated

that he recorded his interview with the Defendant, which was played for the jury. In the

recording, the Defendant acknowledged he was friends with Roger Harrison. The

Defendant said he met Eli “at one of those places drinking.” The Defendant said Eli told

the Defendant that Eli had spoken with the victim about the victim’s building a house for

Eli. The Defendant did not know where the house was to be built. The Defendant did

not think he and Eli had spoken about the victim’s building a house for Eli on the night of

the incident. The Defendant stated that he and the victim had been in business together

and that he caught the victim stealing. The Defendant stated he did not pull a knife until

the victim hit him.

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John Berwin testified as a defense witness that he was at Longhorn Steakhouse on

February 21, 2012. He said he saw the victim and a woman enter the restaurant and go to

a high table. He said the victim walked around the table two to three times and appeared

“very agitated, maybe apprehensive. He was nervous.” Mr. Berwin said that after four

or five minutes, the victim walked to the Defendant, who was seated, and that Mr.

Berwin heard the men talking for about ten seconds, although he could not hear what they

said. Mr. Berwin heard someone say, “You owe me money,” but he did not know who

said it. Mr. Berwin said the victim and the Defendant talked a few more seconds. Mr.

Berwin heard one of the men say, “[L]et’s settle this outside,” and Mr. Berwin saw the

victim walk toward the door with the Defendant behind him. Mr. Berwin did not see a

push, chest bump, or any contact between the Defendant and the victim when the

Defendant stood. Mr. Berwin did not see the Defendant make an aggressive move

toward the victim as the men walked out of the bar. Mr. Berwin lost sight of the men as

the men reached the door, but he said he knew something was about to happen. Mr.

Berwin heard the wall shake violently, and he called 9-1-1. Mr. Berwin said that about

twenty seconds later, he walked to the front door. He said that he saw the Defendant on

the ground with his back to the wall, that the victim “sitting on” the Defendant, and that

“he” was covered in blood. Mr. Berwin said he stated, “[T]his guy started it,” and

pointed at the victim. Mr. Berwin said he formed this opinion based upon the victim’s

nervous demeanor when the victim entered the restaurant and the Defendant’s sitting and

eating in peace. Mr. Berwin thought the incident would not have occurred if the

Defendant had not been confronted. Mr. Berwin said he was interviewed by the police

that night.

The sixty-nine-year-old Defendant testified that, previously, he and the victim,

who was eleven or twelve years younger, had been friends and had been in business

together but that their endeavors ended in litigation and hard feelings. The Defendant

agreed that they no longer had contact by about 2006. The Defendant said he met Eli

Cornell in January 2012 when the Defendant and Roger Harrison were at Koi Grill. The

Defendant said that at some point later, he, Mr. Harrison, and Mr. Cornell discussed

playing a practical joke on the victim. The Defendant said that he had not intended for

the victim to be harmed physically and that he was ashamed of what had happened. The

Defendant agreed that Mr. Cornell began contacting the victim in early February 2012

and that the Defendant had telephone conversations with Mr. Cornell between February

14 and 21. The Defendant said that on February 21, he and Mr. Cornell met at Longhorn

Steakhouse. The Defendant said that when he arrived around 4:30 p.m., he ordered a

margarita and that after Mr. Cornell arrived, the men drank together at the bar. The

Defendant said that around 6:00 or 6:30 p.m., he and Mr. Cornell went outside in order

for Mr. Cornell to call the victim in furtherance of the practical joke. The Defendant said

that the victim did not answer but that the victim called back quickly. The Defendant

-12-

said that he and Mr. Cornell laughed and joked about the call, that the Defendant returned

to the restaurant, and that the Defendant thought Mr. Cornell returned to the restaurant

and had another beer.

The Defendant testified that he had been unaware the victim was at the restaurant

until the victim tapped him on the shoulder after about 7:00 p.m. The Defendant said he

had been talking on his cell phone to Mr. Cornell, who told the Defendant that the victim

knew about the joke, when the victim approached the Defendant. The Defendant said the

victim stated, “[S]cam’s up.” The Defendant said he asked about what the victim was

speaking. The Defendant said the victim responded, “You know what I’m talking about.

Your little jig is up.” The Defendant said he asked the victim why the victim stole

money. The Defendant said the victim did not like that people in Westmoreland knew

that the victim had stolen money. The Defendant stated that the victim said, “If you’ll

come outside, I’ll whip your ass,” and that the Defendant responded, “[O]kay, I’ll be

there.” The Defendant said the victim had not said anything about “not in here.” The

Defendant said he followed two to three steps behind the victim toward the door.

The Defendant testified that at this point, he had probably consumed three

margaritas and had ordered a fourth. He agreed he had ordered food. He said that he was

left-handed and that he had been told he had a habit of walking with his left hand in his

pocket. The Defendant said he had not thought they were going to have a fistfight

outside. The Defendant said that when they were about halfway inside the foyer, the

victim turned and hit him. The Defendant said the victim hit him a second time, while

the Defendant was still standing, and broke the Defendant’s glasses. The Defendant said

he bled before the victim. The Defendant said that he was knocked to the ground with

the second or third blow and that he took out his pocketknife about the same time and

swung at the victim’s head. The Defendant said he reached for the knife when the victim

broke his glasses. The Defendant did not know how many times the victim hit him and

said the victim continued to hit him as the Defendant swung the knife. The Defendant

identified a photograph of his injuries, which was received as an exhibit but which has

not been transmitted to this court with the appellate record. The Defendant denied that he

had made a preemptive strike by cutting the victim as they entered the foyer. The

Defendant said that although some people were able to open a pocketknife blade with one

hand, he was not.

The Defendant testified that on February 17, 2012, he and Donald Graves had

encountered the victim at a hospital in Gallatin. The Defendant said he had not spoken to

or assaulted the victim. The Defendant thought Mr. Graves and the victim had spoken.

-13-

The Defendant acknowledged that he had not been forthcoming with the police

about Mr. Cornell. He said that the police had not been forthcoming with him and that he

had not known “how they might move things around.” The Defendant said that he was

embarrassed by the practical joke, that he had not attempted to kill the victim, and that he

had acted in self-defense. The Defendant said the victim was much younger than he and

that the Defendant was out of shape. The Defendant said he had thought the victim

wanted to “blow off a little steam” in the parking lot. The Defendant regretted that he

had followed the victim toward the door.

The Defendant agreed that both he and the victim had felt they “got the short end

of the stick” in the litigation that dissolved their business partnerships. The Defendant

agreed that if the victim’s name were mentioned in the Westmoreland community, the

Defendant would not have anything nice to say. When asked if the Defendant continued

to be irritated over the years by the victim’s theft, the Defendant said, “I hadn’t forgot it,

by no means.”

The Defendant agreed that the victim had sued him and that the Defendant had

filed a counterclaim against the victim and the victim’s wife for $250,000 in damages.

After receiving the proof, the jury acquitted the Defendant of the charged offense

of attempted second degree murder and found him guilty of the lesser included offense of

misdemeanor reckless endangerment. This appeal followed.

I

Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his conviction

because the State’s proof failed to overcome the Defendant’s self-defense theory and

because the State failed to prove that anyone other than the victim was endangered by the

Defendant’s conduct. The State responds that the evidence is sufficient to support the

conviction. We agree with the State.

In determining the sufficiency of the evidence, the standard of review 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); see State v. Vasques, 221 S.W.3d 514,

521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence

and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The

appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding

-14-

“the credibility of witnesses [and] the weight and value to be given the evidence . . . are

resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State

v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same

whether the conviction is based upon direct or circumstantial evidence.’” State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,

275 (Tenn. 2009)).

As relevant to this appeal, reckless endangerment occurs when “[a] person . . .

recklessly engages in conduct that places or may place another person in imminent

danger of death or serious bodily injury.” See T.C.A. § 39-13-103(a) (Supp. 2011)

(amended 2012, 2013).

“Reckless” refers to a person who acts recklessly with respect to

circumstances surrounding the conduct or the result of the conduct when

the person is aware of but consciously disregards a substantial and

justifiable risk that the circumstances exist or the result will occur. The risk

must be of such a nature and degree that its disregard constitutes a gross

deviation from the standard of care that an ordinary person would exercise

under all the circumstances as viewed from the accused person’s

standpoint.

See id. § 39-11-302(c) (2014).

The Defendant contends, first, that the jury’s acquittal of the greater offenses of

attempted second degree murder and attempted voluntary manslaughter indicate its

acceptance of the Defendant’s self-defense theory. He argues that because the jury

credited his self-defense theory involving the authorized use of force, the evidence is,

therefore, insufficient to support the reckless endangerment conviction.

Relative to self-defense:

(b)(1) Notwithstanding § 39-17-1322 [relative to the use of a

handgun in self-defense or defense of another], a person who is not

engaged in unlawful activity and is in a place where the person has a right

to be has no duty to retreat before threatening or using force against another

-15-

person when and to the degree the person reasonably believes the force is

immediately necessary to protect against the other’s use or attempted use of

unlawful force.

(2) Notwithstanding § 39-17-1322, a person who is not engaged in

unlawful activity and is in a place where the person has a right to be has no

duty to retreat before threatening or using force intended or likely to cause

death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent

danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious

bodily injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

T.C.A. § 39-11-611(b)(1), (2)(A)-(C) (2010) (amended 2012, 2016, 2017). Once a

defendant has raised sufficient facts to support a finding he acted in defense of self, “The

state has the burden of proof to negate the defense; the burden is not upon the defendant

to prove the defense exists.” State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim. App.

1996) (citing T.C.A. § 39-11-201(a)(3)).

We disagree with the Defendant’s argument that the jury’s rejection of the greater

offenses leads to the inevitable conclusion that the State failed to rebut the self-defense

theory. The jury could have concluded that the State failed to prove the existence of one

or more of the elements of attempted second degree murder and attempted voluntary

manslaughter and, had it so concluded, would have returned not guilty verdicts on this

basis. See T.C.A. §§ 39-12-101 (2014) (criminal attempt), 39-13-210 (2014) (second

degree murder), 39-13-211 (2014 (voluntary manslaughter). For example, second degree

murder requires a knowing mens rea, and voluntary manslaughter requires an intentional

or knowing mens rea. See id. §§ 39-13-210 (a)(1), 39-13-211(a). Attempt to commit

second degree murder and attempt to commit voluntary manslaughter require the

defendant to act with the intent to produce a result, in this case the killing of the victim.

See id. § 39-12-101 (a)(2). If the jury concluded the State failed to prove the required

mental states for the greater offenses, it would have properly rendered not guilty verdicts

to the offenses. Had the jury so concluded, it would have proceeded to consider the next-

lesser offense, misdemeanor reckless endangerment. We do not view the jury’s rejection

of the greater offenses to signal, conclusively, its acceptance of the defense of self-

defense.

-16-

The Defendant’s argument attempts to deflect this court’s focus from the proper

inquiry by casting the jury’s verdicts relative to attempted second degree murder and

attempted voluntary manslaughter as being inconsistent with its verdict for reckless

endangerment. The proper inquiry, however, is whether the evidence is sufficient to

support the jury’s verdict relative to the conviction offense. Cf. State v. Wiggins, 498

S.W.2d 92, 94 (Tenn. 1973) (holding that consistency between verdicts for separate

counts of an indictment that arise from the same criminal transaction is not required and

that the proper inquiry is whether the evidence is sufficient to support the conviction

offense).

Alternatively, the jury could have concluded that the Defendant failed to use force

in accord with the parameters of the self-defense statute. Subdivision (b)(1) of the self-

defense statute provides that a person may respond to the use or threat of force “to the

degree the person reasonably believes the force [used in response] is immediately

necessary.” See T.C.A. § 39-11-611(b)(1). As the statute states, the person using force

in response to what he reasonably believes to be a threat of death or serious bodily injury

is privileged to do so “when and to the degree” he reasonably believes that the use of

force “is immediately necessary to protect against the other’s use or attempted use of

unlawful force.” See id. Thus, an essential component of a self-defense theory pursuant

to subsection (b)(1) is that the defendant must use only that degree of force which is

reasonably necessary to protect himself from the other person’s use of unlawful force.

Subdivision (b)(2) of the self-defense statute permits a person to use force likely to cause

death or serious bodily injury if certain requirements are met relative to the person’s

reasonable belief that he faces an imminent danger of death or serious bodily injury. See

id. § 39-11-611(b)(2).

Relative to the sufficiency of the evidence to support the reckless endangerment

conviction, the evidence viewed in the light most favorable to the State shows multiple

means by which the jury might arrive at a guilty verdict. The first theory is that the

Defendant was the first aggressor in the physical altercation. The evidence showed that

the Defendant bore ill will toward the victim because of past business dealings. The

Defendant was participating in an elaborate practical joke at the victim’s expense on the

night of the offense. When the victim approached the Defendant to tell the Defendant the

victim knew about the joke, the Defendant chest-bumped the victim and agreed to go

outside after the victim invited the Defendant outside in order for the victim to “kick [the

Defendant’s] a--.” As they entered the restaurant’s foyer, the Defendant took his

pocketknife from his pocket and cut the victim’s neck. The victim hit the Defendant with

the victim’s fists, and the Defendant continued thrusting the knife toward the victim, even

-17-

as the victim attempted to restrain the Defendant. The victim suffered four major slash

wounds and bled profusely. Life-saving surgery was required.

Viewed in the light most favorable to the State, the evidence also supports an

alternative conclusion that the victim was the first aggressor but that the Defendant

responded to being hit by the victim’s fist by using a knife to slash the victim’s neck.

Relative to a self-defense theory pursuant to subsection (b)(1), the evidence shows that

the Defendant exceeded the scope of his privilege to use that degree of force which was

immediately necessary to protect the Defendant from the unarmed victim’s use of

unlawful force. Thus, the State rebutted the Defendant’s claim of self-defense by

showing that the Defendant’s use of a knife to cut the unarmed victim was not a

reasonable use of force. Turning to subsection (b)(2) of the self-defense statute, the

evidence shows that the Defendant did not think a fight would occur and believed the

victim was going to “blow off steam” but that when the victim punched the Defendant on

the way outside, the Defendant responded with deadly force by slashing the victim’s

neck. A rational jury could conclude that the Defendant did not have a reasonable belief

he was in imminent danger of death or serious bodily injury, that the danger creating the

belief was not real or honestly believed to be real, and that the belief of danger was not

based upon reasonable grounds. See id. § 39-11-611(b)(2)(A)-(C).

The Defendant argues that no evidence shows his conduct met the legal definition

of the reckless mens rea required for reckless endangerment. He argues that the only

proof relative to his culpability showed that he acted intentionally in using the

pocketknife to cut the victim. It is a well-settled principle of law, however, that the

requirement of a reckless mental state for an offense is satisfied by proof of a more

culpable mental state of knowing or intentional. See, e.g., State v. Clark, 452 S.W.3d

268, 296 (Tenn. 2014).

The evidence supports a conclusion that the Defendant engaged in conduct that

was, at least, reckless and which placed the victim in imminent danger of death or serious

bodily injury. As we have stated, the jury acted within its province if it reached its

verdict by rejecting the Defendant’s testimony that he merely acted to defend himself by

reaching for and using his knife to injure the victim. Alternatively, the jury was likewise

within its province if it reached its verdict by determining that the Defendant’s use of a

knife was an unreasonable response to the use or threatened use of unlawful force by the

victim or that the Defendant’s use of deadly force was not based upon reasonable beliefs.

Upon appellate review, we may not reweigh the evidence, as questions of the credibility

of witnesses and the weight and value of the evidence are the province of the jury as the

trier of fact. See Bland, 958 S.W.2d at 659; Sheffield, 676 S.W.2d at 547.

-18-

We turn to the Defendant’s argument that no one other than the victim was

endangered by the Defendant’s use of a knife. The Defendant claims that the jury’s

acceptance of his defense of self theory relative to the greater charges of which it

acquitted him “results in the use of the knife being privileged as to [the victim].”

Thereby, he argues, the jury acted improperly in convicting him of reckless

endangerment as to the victim. Further, he argues, the State failed to show than anyone

other than the victim was in danger of death or serious bodily injury due to the

Defendant’s conduct. As we explained previously, however, the jury’s rejection of the

greater offenses does not lead to the inevitable conclusion that the State failed to rebut the

self-defense theory.

The evidence is sufficient to support the conviction. The Defendant is not entitled

to relief on this basis.

II

Exclusion of Evidence

The Defendant contends that the trial court erred in its evidentiary rulings relative

to a prior recorded statement Paige Brown gave to a police investigator. The Defendant

argues that notwithstanding the court’s admission as substantive evidence of Ms.

Brown’s preliminary hearing testimony, the court ruled erroneously that the recorded

statement she gave to a police investigator was inadmissible as substantive evidence. The

Defendant argues that the prior statement was admissible because it was inconsistent with

Ms. Brown’s trial testimony. The State contends that the court did not err in excluding

the recorded statement as substantive evidence. The Defendant argues, alternatively, that

Ms. Brown’s statements were subject to the cancellation rule because they were

diametrically opposed. The State responds that the cancellation rule is inapplicable

because Ms. Brown’s trial testimony was corroborated. We agree with the State in both

respects.

A. Trial Court’s Ruling

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 inadmissible unless it qualifies as an exception. Id. at 802.

Tennessee Rule of Evidence 613(b) provides a mechanism for impeachment of a

witness with the witness’s prior inconsistent statement. The rule states:

-19-

Extrinsic evidence of a prior inconsistent statement by a witness is not

admissible unless and until the witness is afforded the opportunity to

explain or deny the same and the opposite party is afforded an opportunity

to interrogate the witness thereon, or the interests of justice otherwise

require. This provision does not apply to admission of a party-opponent as

defined in Rule 803(1.2).

Tenn. R. Evid. 613(b).

Further, a hearsay exception exists for admission of a witness’s prior inconsistent

statement as substantive evidence. Tennessee Rule of Evidence 803(26) creates a

hearsay exception for:

A statement otherwise admissible under Rule 613(b) if all of the following

conditions are satisfied:

(A) The declarant must testify at the trial or hearing and be subject

to cross-examination concerning the statement.

(B) The statement must be an audio or video recorded statement, a

written statement signed by the witness, or a statement given under oath.

(C) The judge must conduct a hearing outside the presence of the

jury to determine by a preponderance of the evidence that the prior

statement was made under circumstances indicating trustworthiness.

Tenn. R. Evid. 803(26).

A trial court’s factual findings and credibility determinations relative to a hearsay

issue are binding upon an appellate court unless the evidence preponderates against them.

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The determination of whether the

statement in question is hearsay and whether a hearsay exception applies are questions of

law that are reviewed de novo. Id.

Ms. Brown testified at the trial that she saw the victim stop, turn, and hit the

Defendant when the men were in the foyer. When asked when she first saw blood, she

said it had been when the victim turned to swing at the Defendant. Ms. Brown’s trial

testimony was at odds with her prior statements and her prior preliminary hearing

testimony. She acknowledged that she had not told the police in the video-recorded

statement she gave a few days after the incident that she had first seen blood when the

-20-

victim turned to hit the Defendant and that she had seen a large amount of blood after the

third or fourth punch. She acknowledged telling a defense investigator that the victim

had punched the Defendant without provocation and that the men threw about three

punches each before the Defendant took his hand from his pocket. Ms. Brown

acknowledged that in her preliminary hearing testimony, she had said she did not see the

Defendant do anything to the victim before the victim punched the Defendant and that the

Defendant had walked with his left hand in his pocket and had his hand in his pocket

when the victim threw the first punch.

The defense cross-examined Ms. Brown in considerable detail about her prior

statements and prior testimony. She acknowledged her prior statements but described her

trial testimony as being “as clear as I can possibly remember.” She did not address,

directly, the reason for differences between the pretrial statements and her trial testimony.

The defense offered a transcript of Ms. Brown’s preliminary hearing testimony as an

exhibit to her testimony, and the court received it without objection. The defense sought

to introduce Ms. Brown’s video recorded statement pursuant to Tennessee Rule of

Evidence 803(26) during cross-examination of Detective Kemp. The State argued that

the evidence should not be admitted because extrinsic evidence of a witness’s prior

inconsistent statements was inadmissible when the witness unequivocally admitted that

she made the prior statements. Initially, the trial court found that the prior recorded

statement was trustworthy and ruled that the evidence was admissible. After the State

requested reconsideration and submitted caselaw to the court, however, the court reversed

its course. Upon further consideration, the court found that Ms. Brown did not deny

having made the prior inconsistent statements, about which she had been cross-examined,

and that she did not equivocate about having made them. The court also found that the

Defendant’s rights would not be prejudiced by exclusion of the extrinsic evidence such

that the interests of justice would compel admission of the evidence. Thus, the court

ruled that the witness’s prior recorded statement was inadmissible.

The Defendant contends on appeal that the trial court erred by excluding the

evidence of the prior recorded statement and that it should have been admitted pursuant

to Tennessee Rule of Evidence 803(26). The Defendant argues that the court erred by

affording disparate treatment to Ms. Brown’s preliminary hearing testimony, which it

admitted, and the prior recorded statement, which it excluded.

A central issue in this case was whether the Defendant or the victim was the first

aggressor. Ms. Brown’s prior recorded statement reflects that the fight began when the

victim turned and hit the Defendant while the Defendant had his hand in his pocket, that

Ms. Brown did not see blood when the victim turned to hit the Defendant, that the

Defendant raised his hand in response to the victim’s punch but that she had not seen

-21-

anything in the Defendant’s hand, and that Ms. Brown saw blood after the third or fourth

punch was thrown. She said in her trial testimony, however, that she saw blood when the

victim turned to swing at the Defendant, suggesting that the Defendant had already cut

the victim. Ms. Brown was impeached with evidence of her prior unsworn statements,1

but her prior sworn testimony was admitted as substantive evidence. The question is

whether the video recorded statement should have been admitted as substantive evidence.

Because evidence that is admitted pursuant to Rule 803(26) must be otherwise

admissible pursuant to Rule 613(b), we begin with a review of the trial court’s ruling

relative to Rule 613(b). In order for extrinsic evidence of a prior statement to be

admissible pursuant to Rule 613(b), the witness must be asked whether she made the

statement and must deny or equivocate as to having made it. See State v. Devonta Amar

Cunningham, No. M2012-02203-CCA-R3-CD, 2015 WL 173495, at *12 (Tenn. Crim.

App. Jan. 14, 2015), perm. app. denied (Tenn. May 14, 2015). However, “Extrinsic

evidence of a prior inconsistent statement remains inadmissible when a witness

unequivocally admits to having made the prior statement.” State v. Martin, 964 S.W.2d

564, 567 (Tenn. 1998); see State v. Foust, 482 S.W.3d 20, 41 (Tenn. Crim. App. 2015);

State v. Colvett, 481 S.W.3d 172, 200 (Tenn. Crim. App. 2014); State v. Ackerman, 397

S.W.3d 617, 638 (Tenn. Crim. App. 2012), overruled on other grounds by State v.

Sanders, 452 S.W.3d 300, 306-311 (Tenn. 2014); State v. Wyrick, 62 S.W.3d 751, 788

(Tenn. Crim. App. 2001). As we have stated, Ms. Brown testified at the trial and was

subject to cross-examination regarding her prior recorded statement and, specifically, her

prior statements that she did not see blood when the victim turned to hit the Defendant,

who had his hand in his pocket, that the Defendant raised his hand in response but that

she did not see anything in it, and that she saw blood after the third or fourth punch. Ms.

Brown acknowledged making the prior statements. Because she admitted making the

statements, extrinsic evidence of them was inadmissible pursuant to Rule 613(b), making

them likewise inadmissible pursuant to Rule 803(26). The trial court did not err in

excluding the video recording of Ms. Brown’s police interview.

In reaching this conclusion, we have not overlooked the Defendant’s argument

that Rule 803(26) abrogated Rule 613(b)’s principle of inadmissibility of extrinsic

evidence of a prior inconsistent statement when the witness admits making the prior

statement. However, as evidenced by the cases cited above, this court has continued to

follow this settled principle of law, notwithstanding the advent of Rule 803(26). We are

not compelled by the present case to depart from the established precedent of this court.

1

As we have noted, Ms. Brown was impeached with various pretrial statements. The only statement the Defendant

contends should have been admitted pursuant to Rule 803(26) is the video recorded statement she gave to the police

a few days after the offense.

-22-

Regarding the Defendant’s complaint that the trial court erred in admitting Ms.

Brown’s prior testimony, on the one hand, but excluding her prior recorded statement, on

the other hand, we are unpersuaded by this general fairness argument. As we noted

previously, the defense offered the transcript of Ms. Brown’s preliminary hearing

testimony as an exhibit after cross-examining her. The State did not object, and the court

admitted the evidence. The State has not challenged, on appeal, the propriety of the trial

court’s ruling relative to the admission of the transcript of Ms. Brown’s preliminary

hearing testimony as substantive evidence. The Defendant, having received the benefit of

the court’s ruling regarding the admissibility of that evidence, cannot be heard to

complain that he was entitled to the admission of similar evidence, notwithstanding its

hearsay character and its inadmissibility pursuant to the Rules of Evidence.

The trial court did not abuse its discretion in ruling that Ms. Brown’s prior

recorded statement was inadmissible as substantive evidence. The Defendant is not

entitled to relief on this basis.

B. Cancellation Rule

The Defendant argues, alternatively, that Ms. Brown’s statements are subject to

the cancellation rule because they are diametrically opposed. The State responds that the

cancellation rule is inapplicable when a witness’s testimony is corroborated and that the

victim’s wife’s testimony corroborated Ms. Brown’s testimony that the Defendant cut the

victim first and that the victim bled immediately.

“[C]ontradictory statements by a witness in connection with the same fact cancel

each other.” State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993); see

Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482 (Tenn. Ct. App. 1978). The

rule of cancellation comes into play “only when the inconsistency in a witness’ testimony

is unexplained and when neither version of [the] testimony is corroborated by other

evidence.” Matthews, 888 S.W.2d at 450 (citing Taylor, 573 S.W.2d at 483).

In the present case, Ms. Brown’s trial testimony that she saw blood when the

victim turned to hit the Defendant may be viewed as inconsistent with her preliminary

hearing testimony, in which she did not mention this fact. Her testimony suggests that

the Defendant was the aggressor, whereas in her preliminary hearing testimony, she said

that she did not see the Defendant do anything to the victim before the victim hit the

Defendant and that the Defendant had been walking with his left hand in his pocket when

the victim hit the Defendant. However, Ms. Brown’s trial testimony was corroborated by

the victim’s wife’s testimony that as the victim and the Defendant walked to the entrance,

-23-

the victim’s wife saw the Defendant’s “shoulders and body go up . . . into” the victim’s

right side and that the victim’s face and neck were cut. The Defendant argues that Ms.

Brown was the only “non-interested party,” suggesting that the victim’s wife’s testimony

does not provide corroboration because she is an interested party. The Defendant’s

argument is flawed because he seeks to engraft a requirement to the cancellation rule for

which he has provided no legal authority. The cancellation rule applies when neither

version of a witness’s testimony is corroborated by “other evidence.” Id. The rule does

not require that the evidence be from a “non-interested party.” In the present case, the

victim’s wife’s testimony was other evidence to corroborate Ms. Brown’s trial testimony.

The cancellation rule does not apply, and the Defendant is not entitled to relief on this

basis.

In consideration of the foregoing and the record as a whole, the judgment of the

trial court is affirmed.

_____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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