State of Tennessee v. Dwayne Edward Harris

02/22/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 15, 2020 Session

STATE OF TENNESSEE v. DWAYNE EDWARD HARRIS

Appeal from the Circuit Court for Williamson County

No. II-CR180114-B Deanna B. Johnson, Judge

___________________________________

No. M2019-01609-CCA-R3-CD

___________________________________

A Williamson County jury convicted the Defendant, Dwayne Edward Harris, of joyriding

(Count 1), carjacking (Count 2), and aggravated robbery (Count 3). In response to a

motion for judgment of acquittal, the trial court reduced Count 3 from aggravated robbery

to robbery. The trial court then merged Count 1 and Count 3 into Count 2, and sentenced

the Defendant to an effective sentence of thirty years in the Tennessee Department of

Correction. The Defendant appeals, asserting: (1) the evidence is insufficient to support

his convictions; (2) the trial court improperly admitted evidence; and (3) a Bruton

violation. The State appeals the trial court’s reducing the jury’s conviction for

aggravated robbery in Count 3 to robbery and the trial court’s merging Count 3 into

Count 2. This court consolidated the Defendant’s and the State’s appeals. After review

of the Defendant’s issues, we discern no error. As to the State’s issues on appeal, we

vacate the trial court’s judgment in Count 3, reinstate the jury’s verdict of guilty of

aggravated robbery, and remand for sentencing on Count 3. The trial court’s judgment in

Count 2 is remanded for corrections consistent with this opinion.

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

Part, Vacated in Part, and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which TIMOTHY L.

EASTER, J., joined. THOMAS T. WOODALL, J., not participating.

Nichole Dusche (on appeal), and Terrance McNabb (at trial), Franklin, Tennessee, for the

appellant, Dewayne Edward Harris.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior

Assistant Attorney General; Kim R. Helper, District Attorney General; and Tammy

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

OPINION

I. Facts

This case arises from a carjacking and robbery that occurred on July 27, 2017, in

Williamson County, Tennessee. A Williamson County grand jury indicted the

Defendant, Barry Harris,1 Dejon Gullatt, and Alexzandrea Oden for their roles in these

crimes. Co-defendants Gullatt and Oden were severed and appeared as State witnesses at

the Defendant and Barry Harris’s joint trial. The Defendant and Mr. Harris were tried for

the charges of: carjacking by use of a deadly weapon (Count 1), carjacking by force or

intimidation (Count 2), and aggravated robbery accomplished with a deadly weapon

(Count 3). The State proceeded under, and the jury was charged with, the theory of

criminal responsibility as to the culpability of both the Defendant and Mr. Harris.

A. Trial

At the time of the trial, Chantelle Dodson (“the victim”) was nineteen years old

and lived in Franklin, Tennessee with her mother. The victim had been friends with

Alexzandrea Oden since middle school and knew DeJon Gullatt2 as Ms. Oden’s

boyfriend. The victim was familiar with Mr. Harris through social media and had seen

Mr. Harris “around stores.” Ms. Dodson had never seen or heard of the Defendant before

these events but later learned he used the nickname “Big Homey.”

The victim recalled events that occurred in July of 2017. Several days before the

carjacking and robbery, Ms. Oden called the victim to ask for a ride. The victim drove

Ms. Oden to a house located on Scruggs Avenue in the Rolling Meadows subdivision.

She parked at the end of the driveway, and Ms. Oden exited the back seat of the victim’s

2006 Altima and walked to the house. The victim and her boyfriend, Timothy Marsh,

waited in the car while Ms. Oden retrieved a big package. Ms. Oden entered the back

seat of the car complaining about the large size of the package. The victim informed Ms.

Oden that the package was blocking her view through the rearview mirror, so Ms. Oden

opened the package and removed the contents, disposing of the shipping box. The victim

described the contents as a smaller package (“the box”) wrapped in brown paper and

clear tape. When Ms. Oden re-entered the backseat of the Altima with the box, the

victim smelled an odor consistent with raw marijuana.

1

While the Defendant and Barry Harris share a surname, it is unclear from the record

whether they are related.

2

The indictment spells DeJon Gullatt’s last name “Gullat.” At trial, when Mr. Gullatt testified,

he spelled his name aloud “Gullatt”; therefore, we use his spelling throughout this opinion.

-2-

The victim testified that, after leaving Scruggs Avenue, Mr. Marsh and Ms. Oden

directed her to an unfamiliar area of Nashville with multiple buildings. The victim

parked her Altima in a parking lot. Ms. Oden concealed the box in an overnight bag, and

Mr. Marsh and Ms. Oden took the bag into one of the buildings. Ms. Oden and Mr.

Marsh remained inside the building for about thirty minutes and returned to the Altima

without the box. Next, the victim drove Ms. Oden to a residence in Nashville where Ms.

Oden stayed for the night. The victim and Mr. Marsh drove to a restaurant for dinner and

then to a hotel where they spent the night.

The next day, the victim drove Ms. Oden from the Nashville residence where they

had left her the night before to Ms. Oden’s grandmother’s home in Cherokee Place

(“Cherokee Place residence”). The victim admitted she had concerns about who owned

the box, her involvement, and why Mr. Marsh had gone into the building with Ms. Oden;

however, she had just graduated from high school and was enjoying summer vacation, so

set her concerns aside until several days later when she and Mr. Marsh went bowling.

While at the bowling alley, a police officer approached her and informed her that

her Altima had been reported as involved in a drug transaction. The victim walked out to

the bowling alley parking lot with the officer, who searched the victim’s car and Mr.

Marsh. The officer arrested Mr. Marsh for outstanding warrants and issued a citation to

the victim for a small amount of marijuana in the car. The victim identified the citation

and read aloud a portion of what the police officer had written: “officer responding to a

report of drug activity in the parking lot of 1200 Lakeview Drive, occurring in a blue

Nissan Altima.” The victim arranged for her sister, Shabree Dodson (“Shabree”)3, to

pick her up from the bowling alley because the police officer had advised her that she

could not drive alone with a learner’s permit.

Following Mr. Marsh’s arrest, the victim began making arrangements to post bail

for his release from jail. The victim was troubled because she knew the report identifying

her vehicle was false. As she attempted to secure bond for Mr. Marsh, the victim learned

that she would be required to secure a cosigner for the bond. The victim sought Ms.

Oden’s help and, after a thirty to forty-minute delay, Ms. Oden agreed to help. The

victim drove to the Cherokee Place residence to meet Ms. Oden. The victim recalled

having her purse containing the money to post bail, along with her cell phone and Mr.

Marsh’s cell phone.

The victim parked in front of the Cherokee Place residence and two men

approached the victim’s car. Ms. Oden’s boyfriend, Mr. Gullatt, reached inside the

passenger window, unlocked the door, and got into the car. He put a silver pistol to the

3

Because Shabree shares the same last name as the victim, we use her first name for clarity.

-3-

victim’s head and demanded “everything that [she] got.” He also asked the victim about

the location of the box. The Defendant, who stood on the driver’s side of the car,

grabbed the victim by her hair and pulled her out of the car and began striking her face

with his hands. Once he let go of her, the victim began backing toward the house. She

recalled both men wore black clothing. She described the Defendant as heavy set and

bald and Mr. Gullatt as tall. She had parked near a street light which assisted in her

ability to clearly view the men. The victim also saw a third person, Mr. Harris, standing

across the street. She described him as “stand-offish.” She explained that it appeared to

her that Mr. Harris did not want to be involved because he did not do or say anything

during the exchange. Mr. Harris walked away from the Cherokee Place residence, and

Mr. Gullatt drove away in the victim’s Altima. The victim did not see where the

Defendant went following his attack on her.

The victim fled into the house and called out for Ms. Oden. She told Ms. Oden

that she had been carjacked and asked her to call the police. Ms. Oden appeared

“shocked” and kept repeating “sorry.” The victim recalled that she was shaking and

crying while Ms. Oden was on the phone with the police. Ms. Oden hugged the victim

and tried to reassure her. After ten to fifteen minutes with no police response, the victim

began to question whether Ms. Oden had actually called the police. The victim called her

sister, Shabree, who arrived approximately twenty minutes later and waited with her for

the police. At some point, Shabree expressed to the victim doubt about whether Ms.

Oden had called the police. Shabree went outside and saw a police officer driving down

the street. She stopped him and told him about the carjacking. The officer accompanied

Shabree into the house where he spoke with the victim.

The victim testified that, as a result of the Defendant’s assault, she had bruising on

her arms and a cut on her face. The police officer called for medical assistance and

additional officers to assist in the investigation. Police spoke with both the victim and

Ms. Oden, and medical technicians treated the victim’s injuries. The victim identified

photographs of the injuries she sustained during her interaction with the Defendant. After

medical treatment, the victim agreed to provide a statement at the police station. The

police later recovered and returned the Altima to the victim, however, the stolen money

and cell phones were not recovered.

The victim testified that she later described to Shabree, in detail, the man who had

pulled her out of the car and hit her. Using this information, Shabree tried to learn the

identity of the assailant. At some point, Shabree showed the victim a photograph with

several people depicted. One of the people in the photograph was the Defendant, who the

victim described as “the dude that actually put his hands on me.” Before seeing the

photograph, the victim did not know the Defendant or know his name. When asked

about the certainty of her identification of the Defendant in the photograph, the victim

-4-

stated, “I was very confident about it.” Shabree sent the photograph to Detective Bobby

Dilworth, and the victim later confirmed with the detective her identification of the

Defendant in the photograph.

On cross-examination, the victim clarified that Mr. Gullatt hit her “with

something” on the right-side of her face causing her to bleed. The victim confirmed that

Mr. Gullatt “racked a round into the chamber of the gun” causing her to fear that he was

going to shoot her. When Mr. Gullatt inquired about the location of the box, the victim

told him to ask Ms. Oden. The victim agreed that had the Defendant not pulled her out of

the car, Mr. Gullatt could have shot her. She confirmed that she did not see the

Defendant drive away in her car and that he did not physically take her belongings from

her. The victim testified that she later learned that Ms. Oden had not called the police

and “essentially set [her] up in this matter.”

Shabree testified about her involvement in the case. When she arrived at the

Cherokee Place residence, the victim was seated on the porch with her face bleeding.

Shabree described the victim as crying, nervous, and shaken. Shabree grew suspicious

when police still had not arrived. She estimated that it took her approximately twenty-

five minutes to get to the Cherokee Place residence. As they waited, Shabree saw a

police officer patrolling the area and asked him if he was responding to Ms. Oden’s

report. He told her no report had been made.

At the time of these events, the victim did not know the Defendant’s identity. The

victim described her assailant’s appearance to Shabree, who began speaking with others

about the identity of the victim’s attacker. Regarding how she obtained a photograph of

the Defendant, Shabree said, “word get[s] around Franklin pretty quick and discussed

[by] family members and they end[ed] up sending me a picture of one of the guys who

did it.” Shabree texted this photograph to the victim, and the victim identified the

Defendant in the photograph as her attacker. Shabree then sent the photograph to

Detective Bobby Dilworth. She read aloud the three text messages she sent to Detective

Dilworth with the photograph as follows:

Message 1: “The big guy to the right.”

Message 2: “[M]y sister said he is the one who hit her.”

Message 3: “[S]he is a 100 percent sure.”

City of Franklin Detective Bobby Dilworth responded to a report of a carjacking

and robbery that had occurred in Cherokee Place. After speaking with the initial officer

on the scene, he arranged for patrol officers to transport the victim and Ms. Oden to the

police department for interviews. The women were placed in separate rooms, and

Detective Dilworth spoke to the victim first. He recalled that the victim was visibly

-5-

injured and would tear up throughout the interview. He noticed a laceration above her

right eyebrow and bruising and abrasions on her arms. The victim reported the events

consistent with her initial statement to the police at the scene. The victim identified two

of the three suspects by name, but she did not know the identity of the third man who

pulled her from the car by her hair. She described the men as wearing black clothing.

She reported losing money, two cell phones, and her car during the exchange with the

men.

Next, Detective Dilworth interviewed Ms. Oden. After speaking with the victim,

Detective Dilworth did not believe Ms. Oden was an active, physical participant in the

attack, but he suspected some level of involvement. According to Detective Dilworth,

the details the victim provided indicated that the acts were not random and that the victim

had been “targeted.” Ms. Oden identified Mr. Gullatt as one of the participants.

Detective Dilworth obtained permission and then searched Ms. Oden’s cell phone to

determine whether she had placed a 911 call on the victim’s behalf. The call log did not

contain any 911 calls or calls placed to the non-emergency police number. He did,

however, find other numbers that were called during the timeframe of the incident.

Detective Dilworth identified a photograph he took of Ms. Oden’s cell phone call log.

During the course of his investigation, Detective Dilworth discovered that one of the four

phone calls shown in the call log for the relevant time period was to Mr. Gullatt’s phone

number.

Following the interviews, Detective Dilworth obtained an arrest warrant for Barry

Harris and DeJon Gullatt. Detective Dilworth reiterated that he questioned Ms. Oden’s

role after his interview with her and his suspicions were confirmed when he spoke with

Mr. Gullatt. As part of his investigation, Detective Dilworth learned that Mr. Marsh was

arrested as a result of a report of suspicious activity involving drugs at the bowling alley.

He also learned that Ms. Oden was the person who had reported the drug activity to the

police. He explained that Ms. Oden’s cell phone number was populated in the police

CAD system through computerized dispatch. He also reviewed the 911 recording of the

call reporting an alleged crime at the bowling alley.

The investigation included interviews with the victim, Ms. Oden, Mr. Marsh, Leon

Rice, Sherrita Russ, and Denzel Robertson, who had “strong ties” to the Scruggs Avenue

residence. Detective Dilworth also confirmed that packages, shipped from California,

were delivered to the Scruggs Avenue residence. One package was delivered on July 12,

2017, and the other was delivered on July 22, 2017. Detective Dilworth’s testimony

about his interactions with Shabree was consistent with Shabree’s trial testimony.

City of Franklin Police Department Detective Sergio Guerra conducted a forensic

examination of Barry Harris’s cell phone with the use of a program called Cellebrite. He

-6-

identified the report of the information transferred from Mr. Harris’s cell phone to

Cellebrite. He reviewed numerous text message exchanges between Mr. Harris’s cell

phone and someone listed in his contacts as “Big Homey.” The Cellebrite report of the

content on Mr. Harris’s cell phone showed that “Big Homey” was the sixteenth most

contacted contact out of 279 contacts. The total number of text messages for the contact

“Big Homey” was 119.

Franklin Police Department Detective Elijah Valimont processed a recovered

vehicle located on Chickasaw Place. He explained that Chickasaw Place was a road that

runs parallel to Cherokee Place and the two roads are divided by Shawnee. When he

arrived, he found a blue Nissan Altima parked toward the dead end of Chicksaw. The car

had been reported stolen during a carjacking/robbery and was located a short distance

from the robbery location. It appeared to Detective Valimont that nothing of value had

been taken from the Altima. He elaborated, stating that wallets, purses, a “Smart watch,”

and the car radio were in the car and undamaged.

Ms. Oden testified about her relationship with each of her co-defendants and the

victim. Ms. Oden was in a romantic relationship with Mr. Gullatt, both at the time of the

incident and at the time of the trial, and, before this incident, she considered herself

friends with the victim. As to the Defendant and Mr. Harris, Ms. Oden stated, “I know of

[them].” Ms. Oden explained that the victim, Mr. Marsh, and she were driving to

Franklin from Nashville when Mr. Gullatt, who was in Ohio at the time, called and asked

her to retrieve a package containing shoes from a residence in Rolling Meadow. She

recalled the seating arrangement in the victim’s Altima as they drove to Rolling Meadow.

The victim drove, Mr. Marsh sat in the front passenger seat, and Ms. Oden sat in the back

seat.

Ms. Oden stated that she was unable to find the package inside or outside of the

residence. She returned to the backseat of the victim’s Altima, and Mr. Gullatt called to

tell Ms. Oden that the package did not contain shoes but “a whole bunch of other stuff.”

As she was listening to Mr. Gullatt, Mr. Marsh began unpacking the package. She did

not know where or how Mr. Marsh found the package, but she guessed that UPS might

have delivered it while she was inside the Rolling Meadow residence. She described the

package as medium in size and too large for shipping a pair of shoes. She confirmed that

the package would easily fit inside a car, and she said that its contents “[d]id not smell

like anything.”

Mr. Marsh unpacked the package and displayed the box, which Ms. Oden

described as a saran-wrapped package. She estimated the box weighed three or four

pounds and contained marijuana, a gun, and “several other drugs.” When asked how she

knew the items were drugs, she responded, “Because [Mr. Marsh] was pulling them out.”

-7-

She described the gun as small and black. She said one of the drugs “looked like glass,”

another “like a brick” that was white in color, and the marijuana was in a clear bag. All

of these items remained in the front seat with Mr. Marsh, who directed the victim where

to drive next.

Ms. Oden testified that she was scared because she was not familiar with Mr.

Marsh, and she had never before been in this type of situation. The victim drove to a

building on Jefferson Street in Nashville, near Tennessee State University. Mr. Marsh

exited the Altima with the items and went inside the building for fifteen to twenty

minutes while the victim and Ms. Oden waited in the car. During this time, Ms. Oden

suggested to the victim that they “shouldn’t [be] involved,” but the victim only listened to

Mr. Marsh and followed his direction. Ms. Oden also encouraged the victim to leave.

When Mr. Marsh returned from the building, he had “some” marijuana, the white brick,

and the gun. Mr. Marsh told the victim to drive to a motel where he rented a room for the

night. All three stayed at the motel that night, and Mr. Marsh gave the drugs to four or

five different people who came to the room. According to Ms. Oden, Mr. Marsh told

these people that he wanted money for the drugs but he received nothing in return for the

drugs. She described Mr. Marsh as separating the drugs, weighing them, and putting the

drugs in different bags for the purpose of selling the drugs. Ms. Oden said that Mr.

Marsh and the victim stayed in the room for several nights but that she stayed with them

only one night.

The following morning, the victim drove Mr. Marsh to a residence in Nashville

and then drove Ms. Oden to the Cherokee Place residence where Ms. Oden lived with her

grandmother. After returning home, Ms. Oden spoke with Mr. Gullatt on the telephone.

Mr. Gullatt told her that the Defendant was threatening to kill Ms. Oden and her family if

Mr. Gullatt did not return to Tennessee from Ohio. Several days later, Mr. Gullatt called

Ms. Oden and told her he was returning to Tennessee. He instructed her to “get dressed”

and that he would notify her when he arrived. Ms. Oden dressed and arranged for her

grandmother to take care of her son. When asked why she needed to make childcare

arrangements, Ms. Oden testified “[b]ecause I was told that I might have to do something

with them just to make sure that we would all be safe.” Ms. Oden did not know

specifically to what Mr. Gullatt referred when he told her this, but she knew that Mr.

Gullatt was relaying the Defendant’s instructions. Ms. Oden complied because she was

concerned for the safety and welfare of her children and family.

Ms. Oden testified that, when Mr. Gullatt arrived, he received a phone call from

the Defendant. Mr. Gullatt placed the phone call on speaker, and Ms. Oden heard the

Defendant tell Mr. Gullatt that Ms. Oden had to comply with his instructions in order to

remain safe. Mr. Gullatt told Ms. Oden they needed to create a situation to separate Mr.

Marsh and the victim. Ms. Oden’s role was to make a police report. Ms. Oden explained

-8-

that, even though Mr. Gullatt told her to make the call to the police, it was an instruction

that came “through his associates.” About separating the victim and Mr. Marsh, Ms.

Oden explained that the men did not think the victim would be truthful unless separated

from Mr. Marsh because Mr. Marsh abused the victim. Ms. Oden called the police and

reported a drug deal in the parking lot of the bowling alley. Mr. Gullatt provided Ms.

Oden with specific information about the victim and Mr. Marsh that she related to the

police. She told the police what Mr. Marsh and the victim wore, a description of the

drugs, and a description of the car. Ms. Oden also provided a false name to the police

because she did not want her name associated with the incident. Ms. Oden confirmed

that it was her voice on the recording of the call.

Ms. Oden’s recorded phone call with police dispatch was played for the jury, and

Ms. Oden identified false information that she provided to the police dispatch. She

explained that the Defendant, while on the phone with Mr. Gullatt, instructed her on what

to tell police dispatch. Mr. Gullatt told Ms. Oden when to discontinue the phone call and

turn off her phone.

Ms. Oden testified about an earlier encounter with the Defendant to explain her

complicity in the false report. She explained that the day before Mr. Gullatt returned to

Tennessee from Ohio, the Defendant appeared at her neighbor’s house. She had never

seen him before, and he asked her if she had any of the contents of the box. Mr. Harris

was with the Defendant, and she told them that she did not have anything from the box

nor did she know the whereabouts of the box. Ms. Oden went inside her home and, while

preparing to bathe her son, the Defendant told Ms. Oden’s grandmother that if Ms. Oden

did not find “his stuff” he would return and kill Ms. Oden. After speaking with Ms.

Oden’s grandmother, the Defendant and Mr. Harris drove by the residence several times

but did not stop. Ms. Oden was frightened and wondered how the Defendant knew who

she was and where she lived.

After placing the phone call to the police, Mr. Gullatt and Ms. Oden waited for the

Defendant to pick them up at the Cherokee Place residence. The Defendant drove a

silver Envoy; Mr. Harris sat in the front passenger seat, and Mr. Gullatt and Ms. Oden sat

in the back seat. No one spoke on the drive to the bowling alley where they parked in

front of a nearby tattoo parlor and watched the police in the bowling alley parking lot.

While they sat in the car, Mr. Harris removed a silver gun from his waistband and gave it

to Mr. Gullatt. The Defendant told Mr. Gullatt that if Mr. Marsh was not arrested “[Mr.

Gullatt] knew what he was going to have to do.” Mr. Gullatt took the gun and laid it on

the car seat between him and Ms. Oden. Ms. Oden recalled that Mr. Marsh had disclosed

to her that he had an outstanding warrant in Davidson County. Ms. Oden believed that,

because of the outstanding warrant, there was a good chance the police would arrest Mr.

Marsh thereby successfully separating him from the victim.

-9-

Ms. Oden testified that the Defendant followed the victim as she drove away from

the bowling alley alone in her car. No one in the Envoy spoke as they followed the

victim to her mother’s residence. The Defendant parked a short distance away, and Mr.

Harris and Mr. Gullatt exited the car and walked toward the residence. Ms. Oden noted

that Mr. Gullatt left the gun on the car seat next to her. The men returned and notified the

Defendant that the victim was leaving. Again, they rode in silence as they followed the

victim to the police station. They parked next to the victim in the police station parking

lot and waited as the victim sat in her car alone talking on her cell phone. During this

time, the Defendant told Mr. Gullatt that “he was going to be okay” and that the

Defendant knew that Mr. Gullatt did not have “it.” Ms. Oden heard the Defendant tell

Mr. Gullatt that “he wasn’t going to have to do anything else” and also that he “might

have to get [his] hands dirty.” They remained in the parking lot only two or three

minutes before driving away.

After leaving the police station, the Defendant drove back to the victim’s

residence and parked on an adjacent street to wait for the victim to return. While they

waited, the Defendant reiterated to Mr. Gullatt and Ms. Oden that they would be “okay”

and said that he would drive them home. No one else spoke and eventually the

Defendant tired of waiting for the victim and drove Mr. Gullatt and Ms. Oden to the “old

hospital.” From there, Mr. Gullatt and Ms. Oden walked to the Cherokee Place

residence. During the ten to fifteen minute walk, Ms. Oden turned her phone back on,

and the victim called Ms. Oden’s cell phone asking for help with Mr. Marsh’s bond.

Ms. Oden did not want to help the victim, so she told the victim that she was

unsure whether she could find childcare for her son. The victim, however, kept calling

the cell phone even after Ms. Oden had returned the cell phone she had been using that

night to her aunt. As Ms. Oden was preparing to go to bed, her aunt told her that the

victim would be outside shortly. Ms. Oden asked her aunt why the victim was coming

over, and her aunt told Ms. Oden that she had told the victim to come over because the

victim kept calling her phone. Ms. Oden said that Mr. Gullatt had not come inside the

house with her after the walk from the hospital, and she did not know where he was at

this time. Ms. Oden did not go outside to meet the victim, however, the victim “busted

through our door” and told Ms. Oden that “some big dude” and Mr. Gullatt had attacked

her and stolen her car. The victim also identified Mr. Harris as being present.

Ms. Oden described the victim as “frantic,” and she observed a scratch on the

victim’s cheek. Initially, the victim told Ms. Oden that Mr. Gullatt “pistol-whipped” her,

but the victim later denied this and said that Mr. Gullatt had held her at gunpoint. Ms.

Oden denied that the victim asked her to call the police. She said that the victim

requested a phone to call her sister, Shabree. Ms. Oden’s aunt, however, asked Ms. Oden

- 10 -

to call the police. Ms. Oden did not want to call the police because she feared for her

family’s safety, so instead she pretended to call the police. After faking the call, she told

the victim the police were on their way. Ms. Oden said that the victim’s sister arrived

shortly before the police.

Ms. Oden testified that she did not see Mr. Gullatt until several months later on the

day before his arrest and had not seen Mr. Harris or the Defendant since the incident.

Ms. Oden agreed that she initially lied to the police because she did not want her name

associated with these events.

On cross-examination Ms. Oden agreed that she had been charged with aggravated

robbery and two counts of carjacking related to this case. She denied that she had been

promised any outcome for resolution of her cases. She also agreed that she was serving a

probation sentence for two theft convictions at the time of these incidents. Ms. Oden

stated that she did not mention the Defendant or Mr. Harris by name during her police

interview because she did not know their names.

Dejon Gullatt testified that he met the Defendant through Mr. Gullatt’s family’s

masonry business. The Defendant asked Mr. Gullatt to help him surprise his wife by

allowing a package containing shoes to be delivered to Mr. Gullatt. Mr. Gullatt told the

Defendant he was going to Toledo, Ohio and would not be home to receive the package.

When the Defendant asked if Mr. Gullatt knew of an alternate address he could ship the

shoes to, Mr. Gullatt arranged for the shoes to be shipped to the address of his cousin’s

friend, Denzel Robertson, in Rolling Meadows. Mr. Gullatt then traveled to Ohio to

spend time with his family.

Mr. Gullatt testified about a flurry of phone calls that occurred on the day the

package was to arrive. Initially, the Defendant called Mr. Gullatt to confirm that Mr.

Robertson would be home at the time of the arrival of the box. Mr. Gullatt assured the

Defendant that Mr. Robertson had agreed to be home to receive the package. Later, Mr.

Gullatt called Mr. Robertson, and Mr. Robertson did not answer his phone. The

Defendant again called Mr. Gullatt, this time asking if the Defendant could go to the

address himself to check on the box, and Mr. Gullatt told him that would be okay. After

going to the address, the Defendant called Mr. Gullatt and told him that Mr. Robertson

was not at the residence but that “workers” were there. The Defendant had asked the

workers about the box but was unable to locate it. Mr. Gullatt then called Mr. Robertson

and learned that Mr. Robertson was in Cookeville with his cousin.

Mr. Gullatt again spoke on the phone with the Defendant who was “[p]anicking.”

Mr. Gullatt testified that, at the time, he did not find these events unusual. He said that he

felt like he was helping the Defendant and “doing a good deed.” Once the Defendant

- 11 -

realized the box was gone, he told Mr. Gullatt the truth, that the box contained “cocaine,

heroin, meth, pills and a gun.” Upon learning this, Mr. Gullatt became angry because he

felt “used for the wrong reasons.” As a result, Mr. Gullatt stopped answering the

Defendant’s phone calls. After several unsuccessful attempts to call Mr. Gullatt, the

Defendant sent a text stating, “answer the phone, what are you doing, if you don’t

answer, the cartel will come to your uncle[’s] house.” The Defendant called Mr. Gullatt

about ten times before Mr. Gullatt answered the call. The Defendant asked when Mr.

Gullatt would return to Franklin, Tennessee from Toledo, Ohio. Out of concern for the

safety of his family, Mr. Gullatt drove back to Tennessee.

Upon his return to Tennessee, the Defendant instructed Mr. Gullatt to meet him at

the Defendant’s house. Mr. Gullatt arranged for his cousin to take him to the

Defendant’s residence and leave him there. Mr. Gullatt agreed to meet with the

Defendant in an attempt to show the Defendant that he had no role in the interception of

the box. During their meeting, the Defendant told Mr. Gullatt that the victim and Mr.

Marsh had the box and that Mr. Gullatt would have “to get [his] hands dirty.” About this

time, Mr. Harris arrived, and he reiterated what the Defendant had said about dirty hands.

Mr. Gullatt interpreted this phrase as meaning that he would have to help the Defendant

retrieve the box.

The Defendant told Mr. Gullatt that the victim and Mr. Marsh were going to be at

the bowling alley in Franklin. Mr. Gullatt believed that the Defendant and Mr. Harris

held him responsible for the missing box, causing him to be fearful for his safety and his

family’s safety. The three men drove in a silver Envoy to Ms. Oden’s residence, where

she joined Mr. Gullatt in the back seat of the Envoy. The Defendant instructed Ms. Oden

to call the police to report a man waving a gun outside the bowling alley with children

present. Ms. Oden made the false report while inside the Defendant’s Envoy, and then

the Defendant drove to the bowling alley where the police had already surrounded the

victim’s car. The Defendant stated that, if the police did not arrest Mr. Marsh, Mr.

Gullatt would have to shoot him. When asked whether it would surprise him if Ms. Oden

testified that she called the police from her apartment, Mr. Gullatt replied that if Ms.

Oden testified differently about the false report to the police, it was likely because she

had forgotten due to the length of time between the incident and trial.

Mr. Gullatt testified that, as they watched the police search the victim’s vehicle,

Ms. Oden stated “we ain’t got nothing to do with this.” From the driver’s seat, the

Defendant responded by brandishing a gun and alternately pointing it at Ms. Oden and

Mr. Gullatt while threatening them. The Defendant said that if Ms. Oden and Mr. Gullatt

did not participate, they would be “flat-lined.” Eventually, they observed the police

arresting Mr. Marsh and placing him in a police car for transport. Mr. Gullatt said that

the police “made” the victim call her sister for transportation, and he watched as Ms.

- 12 -

Dodson left the bowling alley with her sister. The Defendant followed the victim back to

her mother’s house and parked down the street. They waited inside the Envoy until the

victim returned to her car and drove away. The Defendant followed the victim to the

Williamson County Jail. Mr. Harris handed Mr. Gullatt a gun, and the Defendant

instructed Mr. Gullatt to get in the car with the victim and “make her pull up.”

Mr. Gullatt recalled the Defendant parked next to the victim, ordering Mr. Gullatt

to proceed with the plan, but Mr. Harris intervened determining there were too many

police present. The Defendant drove away from the police station and returned to the

victim’s home. The Defendant parked nearby until a man approached and told them to

leave. The Defendant then drove to a church and parked. As they waited, the victim

called Ms. Oden and asked for help obtaining bond for Mr. Marsh. Ms. Oden placed the

call on speaker, so everyone in the car could hear the exchange. During the phone call,

Ms. Oden told the victim that she was at the Cherokee Place residence. The Defendant

drove to Cherokee Place, parked down the street from the Cherokee Place residence, and

instructed Ms. Oden to go inside her residence.

The three men walked to an area near the Cherokee Place residence but not

directly in front of it. At this point Mr. Harris had the gun because he had taken it back

from Mr. Gullatt. The Defendant told Mr. Gullatt to get in the car with the victim and

demand the box. If she did not have the box, then Mr. Gullatt was to “take her out to the

woods” and kill her. The victim drove up to the Cherokee Place residence as Mr. Harris

handed the gun to Mr. Gullatt.

Mr. Gullatt testified that he approached the victim’s Altima. The victim

recognized Mr. Gullatt, so she leaned across the front seat and unlocked the passenger

side door for him. While holding the gun, Mr. Gullatt entered the car and asked for the

location of the box. The victim responded that she did not know what he was talking

about so Mr. Gullatt “told her to pull up.” Mr. Gullatt stated that he never raised the gun

at the victim, he only held it in his lap.

Mr. Gullatt testified that, when he entered the Altima, the Defendant and Mr.

Harris were standing approximately fifteen feet from the rear of the vehicle. Mr. Gullatt

explained that, despite the Defendant’s instruction to kill the victim, he planned to release

the victim if he could convince her to drive away. He recalled that the victim began to

“inch” out of the parking space when the Defendant opened the driver’s side door, pulled

the victim out of the car, “hits her with the door of the car” and then punched her. Mr.

Gullatt maintained that he never hit the victim with the gun or made any aggressive

movements with the gun. After the Defendant punched her, the victim stumbled, and

then fled into the Cherokee Place residence. The Defendant told Mr. Gullatt to leave in

- 13 -

the victim’s car. Mr. Gullatt drove the car to a nearby street, Chickasaw, and left it with

the keys inside but took the victim’s wallet and a phone to appease the Defendant.

Mr. Gullatt admitted that his involvement was wrong, but he explained that he

allowed the attack and carjacking to happen because he was in fear for his safety and the

safety of those close to him. As Mr. Gullatt walked away from the Altima, Mr. Harris

called his cell phone and asked Mr. Gullatt’s location. Mr. Gullatt told Mr. Harris he was

on Chickasaw and, shortly thereafter, Mr. Harris drove up in a black Hyundai. Mr. Harris

held a gun out the window and demanded that Mr. Gullatt return the gun Mr. Harris had

earlier given him. Mr. Gullatt returned the gun, and Mr. Harris drove away. Mr. Gullatt

continued walking and, when he reached an area near Jim Warren Park, the Defendant

called Mr. Gullatt’s cell phone and told Mr. Gullatt to meet him at the Defendant’s house.

It took Mr. Gullatt approximately fifteen minutes to walk to the Defendant’s

home. When he arrived, he gave the Defendant the money and phone before telling the

Defendant he was “done.” The Defendant responded by telling Mr. Gullatt to “stay.”

Mr. Gullatt remained at the Defendant’s house, and the Defendant told him that the

Defendant would purchase Mr. Gullatt a bus ticket to Toledo, Ohio. Mr. Gullatt was to

leave on the bus and not return to Tennessee. The following day, the Defendant gave Mr.

Gullatt half of the stolen money, $250, to purchase a bus ticket to Toledo, Ohio. Mr.

Gullatt called his cousin, who drove him to the Nashville bus station. Mr. Gullatt

explained that he did not call the police after he left the Defendant’s house because he

was scared. After discussing it with his family, he turned himself in at a police station in

Ohio.

Mr. Gullatt admitted that he was not truthful with Detective Dilworth when he first

met with him because he did not think it was wise to make a statement without an

attorney. Later, however, he asked to speak with Detective Dilworth. While at the

Williamson County Jail, Mr. Gullatt was in the same pod with the Defendant, who

inquired about what Mr. Gullatt had told the police. Mr. Gullatt assured the Defendant he

had not disclosed anything to the police. Mr. Gullatt pretended to agree with the

Defendant to keep him happy, but he asked one of the jail employees to arrange a

meeting with Detective Dilworth.

On cross-examination, Mr. Gullatt testified that he went to the Defendant’s home

at around 2:00 a.m. following the incident. Mr. Gullatt said he woke up at 9:30 or 10:00

a.m. later that morning. The Defendant gave Mr. Gullatt half of the stolen money at

around 10:00 a.m., and Mr. Gullatt purchased his bus ticket in Nashville at around 11:30

a.m. or 12:00 p.m. Defense counsel provided Mr. Gullatt with the bus ticket that

indicated that the ticket was purchased at 4:21 a.m. and departed Nashville at 10:40 a.m.

- 14 -

Mr. Gullatt maintained that he spent the night at the Defendant’s residence and suggested

that the bus ticket was incorrect.

Mr. Gullatt confirmed that the victim, Ms. Oden, and Mr. Marsh went to the

Rolling Meadows residence to get the box. He explained that, during one of the

Defendant’s phone calls, he told Mr. Gullatt that he was tired of waiting for the box and

asked if Mr. Gullatt could arrange for Ms. Oden to retrieve the box. Mr. Gullatt called

Ms. Oden and asked her to retrieve the box for the Defendant. Mr. Gullatt denied that

Ms. Oden ever possessed the box because, when she went to the Rolling Meadows

residence, she was unable to find it. He admitted that he did later learn about the box

“going to Nashville.” Mr. Gullatt maintained his innocence as to his role in these

offenses. He said that the gun was not his gun, and he was not a willing participant in

these events.

Sherrita Russ was on the front porch of a residence near the Cherokee Place

residence at 2:00 a.m. on July 27, 2017. When Ms. Russ stepped out onto the porch, she

saw a parked Altima with two men standing on either side of the car and a third man,

Barry Harris, standing a distance away. According to Ms. Russ, Mr. Harris never

approached the Altima, but she heard him yell, “What the ‘H’ are y’all doing” before he

turned and walked away. Ms. Russ did not disclose what she witnessed to police officers

that night because she avoided the police by reentering the residence. Ms. Russ later

spoke with the police and identified the Defendant as one of the two men flanking the

Altima. She also saw “a skinny dude” who hit the victim.

Leon Rice also witnessed the carjacking during the early morning hours of July

27, 2017. He saw a man pull the victim out of her car and drive away in it. He agreed

that he saw a “skinny dude” speak to two guys “between the buildings.”

After hearing this evidence, the jury convicted the Defendant of misdemeanor

joyriding in Count 1, (as a lesser included offense of the charged offense of carjacking by

use of a deadly weapon), guilty of the charged offense of carjacking by force or

intimidation in Count 2, and guilty as charged of aggravated robbery by use of a deadly

weapon in Count 3. After the jury was discharged, the Defendant made an oral motion

for a “judgment N.O.V.” as to Count 3. The Defendant argued that the verdict in Count 1

convicting him of joyriding was “inconsistent” with the finding that he accomplished the

aggravated robbery with a deadly weapon in Count 3. The trial court agreed and granted

the motion.

The Defendant then filed a motion for a “judgment not withstanding the verdict, to

alter or amend and to void the jury’s conviction on Count II for carjacking.” The State

responded that Count 1, joyriding, should be merged with Count 2, carjacking.

- 15 -

B. Sentencing

At the sentencing hearing, the trial court sought clarification about the Defendant’s

motion. The Defendant summarized the trial court’s decision to grant his oral motion for

“judgment notwithstanding the verdict” “on grounds that that was an inconsistent or

improper verdict because [the Defendant] . . . could not be found guilty of armed

robbery” when he had been acquitted of carjacking with a weapon. The Defendant

contended that the convictions for joyriding in Count 1 and carjacking in Count 2 were

also “inconsistent” and “improper.” He argued that the jury could not find him guilty on

both carjacking and also on the lesser-included offense of joyriding. The Defendant

asked the trial court to dismiss the carjacking conviction and sentence the Defendant on

the remaining conviction for joyriding.

The State responded that the two counts for carjacking were alternative charges

and thus, Count 1, joyriding, should be merged into Count 2, carjacking. Further, the

State argued that inconsistent verdicts are allowed in Tennessee and that the trial court

should recognize the sanctity of the jury’s deliberation. The trial court stated that it

would take the matter under advisement.

The State submitted the presentence report as an exhibit to the sentencing hearing

for the trial court’s consideration. The State also submitted copies of the Defendant’s

prior convictions. The Defendant’s wife testified about her disabilities and the

Defendant’s existing medical conditions. Detective Dilworth also testified about gang

behavior related to tattoos and indicia of gang affiliation.

In a subsequent written order, the trial court acknowledged the Defendant’s

motion for a “judgment not withstanding the verdict, to alter or amend and to void the

jury’s conviction on Count II for carjacking.” It then stated: “The Court deems this

Motion as a Motion For Judgment of Acquittal.” The trial court then made the following

findings as to the Defendant’s motion:

[T]he jury found Defendant not guilty on Count I of the offense of

Carjacking by use of a deadly weapon but guilty of Count II, Carjacking by

use of force or intimidation. The jury then found Defendant guilty of Count

III, Aggravated Robbery accomplished with a deadly weapon. There was

no proof at trial that Defendant used a deadly weapon during this criminal

episode. Instead, the victim testified that Gullatt got into the passenger side

of the victim’s vehicle and put a gun in her face. Gullatt testified that he

held the gun in his lap. Either way, both the victim and Gullatt testified

that Gullatt, not Dwayne Harris, had the gun. The victim further testified

- 16 -

that Defendant approached the driver’s side of her vehicle, pulled her out of

the vehicle, and beat her. Again, there was no proof at trial that Defendant

had or used a weapon. Accordingly, as thirteenth juror, the Court finds

Defendant not guilty of Aggravated Robbery accomplished with a deadly

weapon, but guilty of robbery. The Court hereby amends its decision on

the last night of trial to dismiss or grant a judgment of acquittal on Count

III. The Court is able to amend this decision because a Judgment form has

not yet been entered on this charge.

Regarding Count II, carjacking by use of force or intimidation, the

Court denies Defendant’s Motion For Judgment Not -Withstanding The

Verdict, To Alter Or Amend And To Void The Jury’s Conviction On Count

II For Carjacking. “The Double Jeopardy Clauses of both the United States

and Tennessee Constitutions state no person shall be put in jeopardy of life

or limb for the same offense.” State v. Addison, 973 S.W.3d 260 (Tenn.

Crim. App.) (citing U.S. Const. amend 5; Tenn. Const. art. I, § 10). The

Due Process Clauses protect against a second prosecution for the same

offense after acquittal or conviction. State v. Addison, 973 S.W.3d at 267.

It also protects against multiple punishments for the same offense. Id.

“Typically, when the defendant is convicted of multiple offenses

which would violate double jeopardy, the trial judge will merge the lesser

offense into the greater offense.” State v. Cribbs, 1997 WL 61507 (Tenn.

Crim. App. 1997) (citing State v. Banes, 874 S.W.2d 73, 81 (Tenn. Crim.

App. 1993)). The principle of merger is applicable when there are

alternative charges: “the guilty verdict on the greater charge stands and the

guilty verdict on the lesser charge merges into the greater charge.” Banes,

874 S.W.2d at 81.

In the instant case, Counts I and II were alternative charges. In

Count I, the jury found Defendant guilty of the lesser included offense of

joyriding. Accordingly, the Court will merge Count I, joyriding, into the

greater charge of Carjacking in Count II. The Court will sentence

Defendant on Count II, Carjacking, which is a Class B Felony.

As for Count III, the Court has already, as thirteenth juror, reduced

the charge from Aggravated Robbery to Robbery. As stated above, there

was no proof at trial that Defendant used a deadly weapon to accomplish

the robbery. Defendant argues that Count III should be dismissed because

it, like carjacking, requires a taking of property. While Defendant is correct

- 17 -

that both charges require a taking of property, the Court finds that the

proper remedy is to merge Count III with Count II.

The trial court then considered the principles and purposes of the sentencing act,

the facts of this case, and the arguments of both parties before sentencing the Defendant

to eleven months and twenty-nine days for Count 1, thirty years for Count 2, and fifteen

years for Count 3. The trial court then merged both Count 1 and Count 3 into Count 2 for

a total effective sentence of thirty years. It is from this judgment that the Defendant and

the State now appeal.

II. Analysis

In this consolidated appeal, the Defendant asserts that: (1) the evidence is

insufficient to support his convictions: (2) the trial court improperly admitted testimony

about “the box” which was highly prejudicial to the Defendant; (3) the trial court

improperly admitted inadmissible hearsay; and (4) Detective Dilworth’s testimony about

Mr. Harris’s, a non-testifying co-defendant, statement incriminating the Defendant

violated his constitutional right to confrontation. The State appeals from the trial court’s

judgment reducing the jury’s conviction for aggravated robbery in Count 3 to robbery

and the trial court’s judgment merging Count 3 into Count 2. We first address the

Defendant’s issues raised on appeal and then the State’s issues.

A. Sufficiency of the Evidence

The Defendant asserts that there is insufficient evidence to support his convictions

for carjacking and aggravated robbery. He argues that the State presented no proof that

he personally took the victim’s car and other property, and that the accomplice testimony

was uncorroborated.

When an accused challenges the sufficiency of the evidence, this Court’s standard

of review is whether, after considering the evidence in the light most favorable to the

State, “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 Tenn. R.

App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,

91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon

direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the

absence of direct evidence, a criminal offense may be established exclusively by

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury

decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be

- 18 -

drawn from such evidence, and the extent to which the circumstances are consistent with

guilt and inconsistent with innocence, are questions primarily for the jury.’” State v.

Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457

(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘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)).

In determining the sufficiency of the evidence, this Court should not re-weigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990). Nor may this Court substitute its inferences for those drawn by the trier of fact

from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.

State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of

witnesses, the weight and value to be given the evidence, as well as all factual issues

raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,

659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the

testimony of the witnesses for the State and resolves all conflicts in favor of the theory of

the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme

Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be

given to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d

523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest

legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and

legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at

775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of

guilt against a defendant removes the presumption of innocence and raises a presumption

of guilt, the convicted criminal defendant bears the burden of showing that the evidence

was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,

557-58 (Tenn. 2000) (citations omitted).

The Defendant was charged with alternate counts of carjacking. Carjacking is

“the intentional or knowing taking of a motor vehicle from the possession of another”

either by use of “[a] deadly weapon” or by “[f]orce or intimidation.” T.C.A. § 39-13-

- 19 -

404(a) (2018). The Defendant was convicted of carjacking by force or intimidation

(Count 2), but convicted of the lesser-included offense of joyriding in Count 1, which

charged carjacking by use of a deadly weapon. Joyriding is statutorily defined in

Tennessee Code Annotated section 39-14-106, which provides “[a] person commits a

Class A misdemeanor who takes another’s automobile, airplane, motorcycle, bicycle,

boat or other vehicle without the consent of the owner and the person does not have the

intent to deprive the owner thereof.”

A conviction for aggravated robbery, as relevant to this case, requires proof

beyond a reasonable doubt that the Defendant committed an “intentional or knowing theft

of property from the person of another by violence or putting the person in fear” and that

the robbery was “accomplished with a deadly weapon or by display of any article used or

fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §§

39-13-401(a), -402(a)(1) (2018).

At trial, the State proceeded under a theory of criminal responsibility to prove the

Defendant’s guilt of the offenses. The jury was instructed on the theory of criminal

responsibility. “A person is criminally responsible as a party to an offense, if the offense

is committed by the person’s own conduct, by the conduct of another for which the

person is criminally responsible, or by both.” T.C.A. § 39-11-401(a) (2018). Tennessee

Code Annotated section 39-11-402(2) provides that a person is criminally responsible for

the actions of another when, “[a]cting with intent to promote or assist the commission of

the offense, or to benefit in the proceeds or results of the offense, the person solicits,

directs, aids, or attempts to aid another person to commit the offense[.]” The person must

“‘in some way associate himself with the venture, act with knowledge that an offense is

to be committed, and share in the criminal intent of the principal in the first degree.’”

State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting Hembree v.

State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)). The defendant’s requisite

criminal intent may be inferred from his “presence, companionship, and conduct before

and after the offense.” State v. McBee, 644 S.W.2d 425, 428 (Tenn. Crim. App. 1982).

A defendant convicted under a criminal responsibility theory “is guilty in the same

degree as the principal who committed the crime” and “is considered to be a principal

offender.” Id. at 171. Criminal responsibility is not a separate crime; rather, it is “solely

a theory by which the State may prove the defendant’s guilt of the alleged offense . . .

based upon the conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170

(Tenn. 1999). No particular act need be shown, and the defendant need not have taken a

physical part in the crime in order to be held criminally responsible. Id.

The evidence, viewed in the light most favorable to the State, showed that the

Defendant arranged, through Mr. Gullatt, to receive a box containing drugs and a gun.

- 20 -

When the box went missing, the Defendant held Mr. Gullatt responsible based upon Mr.

Gullatt’s arranging for a mailing address and for Ms. Oden to retrieve the box. The

Defendant demanded that Mr. Gullatt return from Toledo, Ohio to help recover the

contents of the box. He arranged a meeting with Mr. Gullatt, and a plan was devised for

Ms. Oden to make a false report to the police in an effort to isolate the victim from Mr.

Marsh. Once Mr. Marsh was held in custody, Ms. Oden lured the victim to the Cherokee

Place residence with the promise that Ms. Oden would help secure bond for Mr. Marsh.

The men waited outside the Cherokee Place residence for the victim. When she parked

her car in front of the Cherokee Place residence, Mr. Gullatt, at the Defendant’s

instruction, entered the victim’s Altima and demanded to know the location of the box.

The Defendant then pulled the victim out of the car by her hair and punched her in the

face. After the victim fled, the Defendant instructed Mr. Gullatt to take the victim’s car.

The next morning, the Defendant gave Mr. Gullatt half of the money stolen from the

victim’s car and told him to use the money to purchase a bus ticket to leave Tennessee.

We conclude that this is sufficient evidence upon which a rational jury could

conclude beyond a reasonable doubt that the Defendant was associated with the venture,

acted with knowledge that Mr. Gullatt was going to hold the victim at gunpoint, engaged

in the assault on the victim, and shared in the criminal intent to take the victim’s car and

property by force.

As to the Defendant’s contention that there is insufficient evidence to convict him

because he did not physically take the victim’s items and car, we reiterate that the State

proceeded under the theory of criminal responsibility. The defendant need not take a

physical part in the crime in order to be held criminally responsible. Lemacks, 996

S.W.2d at 170. The evidence at trial was that Mr. Gullatt drove away in the Altima and

parked it one street over before taking cash and phones from the victim’s car. In

addition, there was an abundance of evidence that the Defendant both promoted and

assisted in the attack on the victim and then directed Mr. Gullatt to drive away in the

vehicle. The Defendant’s presence and support of the endeavor showed that he furnished

substantial assistance in the commission of these felony offenses.

The Defendant also argues that there is insufficient corroboration of Mr. Gullatt

and Ms. Oden’s testimony as accomplices. It is well-settled that in Tennessee, “a

conviction may not be based solely upon the uncorroborated testimony of an

accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). The law in Tennessee

regarding accomplice testimony has been described as follows:

The rule simply stated, is that there must be some fact testified to,

entirely independent of the accomplice’s testimony, which, taken by itself,

leads to the inference, not only that a crime has been committed, but also

- 21 -

that the defendant is implicated in it; and this independent corroborative

testimony must also include some fact establishing the defendant’s identity.

This corroborative evidence may be direct or entirely circumstantial, and it

need not be adequate, in and of itself, to support a conviction; it is sufficient

to meet the requirements of the rule if it fairly and legitimately tends to

connect the defendant with the commission of the crime charged. It is not

necessary that the corroboration extend to every part of the accomplice’s

evidence.

Shaw, 37 S.W.3d at 903 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)

(citations omitted)). Whether sufficient corroboration exists is a determination for the

jury. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994).

In our view, there was sufficient evidence to corroborate the testimony of the

accomplices to these crimes. Ms. Oden and Mr. Gullatt both testified as to the events

leading up to these offenses with some discrepancies between their testimony. Ms. Oden

and Mr. Gullatt testified that, at the Defendant’s instruction, Ms. Oden made a false

police report in an attempt to get Mr. Marsh arrested for outstanding warrants. The

victim testified consistently with these events, and Detective Dilworth confirmed that Ms.

Oden made the report to the police that caused Mr. Marsh’s arrest. Furthermore, Ms.

Oden identified her voice on the recording of the phone call to police dispatch and her

cell phone number was identified in the police call system.

The victim testified that Mr. Gullatt entered her car with a gun and the Defendant

pulled her from her car and hit her. Shabree and Detective Dilworth both testified about

the victim’s visible injuries following her interaction with the Defendant and Mr. Gullatt.

Two persons in the neighborhood also testified that the victim was pulled from her car

and that her car was driven away. One of these persons identified the Defendant as one

of the perpetrators. Mr. Gullatt testified that he entered the victim’s car, and the

Defendant pulled the victim out of the car and hit her. Mr. Gullatt testified that he drove

the victim’s car to a nearby street and left the car. Detective Valiamont testified that he

found the Altima where Mr. Gullatt testified he had left the car.

Mr. Gullatt testified that he took money and a cell phone from the the victim’s car.

The victim testified that her car was returned to her but the money and cell phones were

not recovered. Mr. Gullatt testified that he gave the proceeds to the Defendant, who gave

him half of the money to buy a bus ticket to Toledo, Ohio. The Defendant’s bus ticket to

Toledo, Ohio was produced at trial.

- 22 -

When viewed under the standards discussed above, we conclude that there was

sufficient evidence to corroborate the testimony of the accomplices and to support the

jury’s verdicts. The Defendant is not entitled to relief as to this issue.

B. Motion to Exclude Evidence about “the Box”

The Defendant asserts that the trial court erred when it denied his motion to

exclude evidence about the box. He contends that evidence about the box was prejudicial

to him and the trial court failed to expressly find that evidence concerning the box was

clear and convincing. The State responds that the trial court properly allowed admission

of this evidence. We agree with the State.

Relevant evidence is admissible unless “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.” T.R.E. 402, 403. Rule of Evidence 404 prohibits evidence of

other crimes, wrongs, or acts offered to show a character trait in order to prove that a

defendant acted in conformity with that character trait. T.R.E. 404(b). The trial court

may admit the evidence for non-character purposes if four conditions are met:

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

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

conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting the evidence;

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

and convincing; and

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

by the danger of unfair prejudice.

T.R.E. 404(b). If a trial court “substantially complies” with these requirements, this court

will review for an abuse of discretion. State v. McCary, 119 S.W.3d 226, 244 (Tenn.

Crim. App. 2003) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)). If the

evidence sought to be admitted is relevant to an issue other than the accused’s character,

such as identity, motive, common scheme, intent, or rebuttal of accident or mistake, it

may be admitted for that purpose so long as the danger of unfair prejudice does not

outweigh the probative value. T.R.E. 404(b), Advisory Comm’n Cmts.; McCary, 119

S.W.3d at 243.

- 23 -

The Defendant filed a pre-trial motion motion to exclude evidence about the box,

asserting that the evidence was more prejudicial than probative pursuant to Tennessee

Rules of Evidence 401 and 402. The motion also argued that “Jurors may also find that

[t]his is Evidence of a crime,” citing Tennessee Rule of Evidence 404. The State

responded that “any testimony that drugs may have been in a box that was taken is

necessary to complete the full story.” The State argued that this evidence was offered to

show contextual background and avoid confusion of the jury. Following a hearing, the

trial court stated:

The Court finds that the story about the box, the information surrounding

the box, does tell the whole story. It shows a possible motive. It links

certain individuals to the entire story and the fact that all of this occurred in

temporal proximity is also very important to the State’s case so the Court

respectfully denies number four of the [D]efendant’s motion.

In the case under submission, we conclude the State did not introduce evidence of

the box and its contents to prove that the Defendant acted in conformity with a character

trait involving the propensity to engage in criminal activity. The evidence was offered to

show the Defendant’s motive in orchestrating these events. Although this evidence may

have implied that the Defendant engaged in criminal behavior, the State did not introduce

it for this purpose. It was introduced to help the jury understand the evidence and the

motive behind the events that followed. This relevant evidence, therefore, in our opinion

does not constitute propensity evidence, so as to be precluded by Tennessee Rule of

Evidence 404(b).

The Defendant also argues that the trial court did not expressly find proof of the

act to be clear and convincing. With regard to Tennessee Rule of Evidence 404(b)(3), the

trial court did not explicitly state the proof about the box was clear and convincing.

However, it is clear from a reading of the entire record that such a finding was implicit in

the ruling of the trial court admitting the disputed evidence. See State v. Clark, 452

S.W.3d 268, 291 (Tenn. 2014) (trial court did not “expressly state” that evidence was

“clear and convincing,” however, the defendant’s repeated admission to conduct

supported a “clear and convincing” finding); State v. Ray Anthony Nelson, No. 03C01-

9706-CR-00197, 1998 WL 694971, at *8-9 (Tenn. Crim. App, at Knoxville, Sept. 9,

1998) (holding trial court substantially complied with Rule 404(b) even though trial court

did not specifically make a finding that the proof was clear and convincing). In our view,

the trial court substantially complied with the requirements of Rule 404(b). When the

proffered evidence is subject to the procedural requirements of Tennessee Rule of

Evidence 404(b) and when the trial court has substantially complied with those

requirements, any decision as to whether to admit evidence under Rule 404(b) will be

reversed only for an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn.

- 24 -

1997). Because the term “discretion” essentially “denotes the absence of a hard and fast

rule,” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999), we will reverse a decision to

admit evidence “only when the ‘court applied an incorrect legal standard, or reached a

decision which is against logic or reasoning that caused an injustice to the party

complaining.’” Id. (citing State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

Accordingly, we conclude that that the tendency of the undisputed evidence to

show the Defendant’s motive outweighed any unfair prejudice from the jury’s possible

inference that the Defendant engaged in another criminal act. Thus, the trial court

properly admitted evidence about the box to show motive and aid the jury in

understanding the evidence. The Defendant is not entitled to relief.

C. Alleged Inadmissible Hearsay

The Defendant asserts that Detective Dilworth gave non-responsive answers

containing hearsay during cross-examination, violating the Defendant’s confrontation

rights. The State responds that the Defendant has waived our review for failure to

contemporaneously object to the testimony. Additionally, the State asserts that only two

of the four alleged improper responses were raised in the Defendant’s motion for new

trial.

Hearsay is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted. Tenn. R.

Evid. 801(c). Hearsay is not admissible unless admission is authorized by the evidence

rules or by other controlling provisions of law. Id. at 802. The Sixth Amendment of the

United States Constitution guarantees that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him[.]” U.S. Const.

amend. VI. The Tennessee Constitution provides the corresponding right “to meet

witnesses face to face.” Tenn. Const. art. I, § 9.

When a defendant fails to object on the basis of inadmissible hearsay, “the

evidence becomes admissible notwithstanding any other Rule of Evidence to the

contrary, and the jury may consider that evidence for its ‘natural probative effects as if it

were in law admissible.’” State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (quoting

State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981)); see, e.g., State v. Burton, 751

S.W.2d 440, 448 (Tenn. Crim. App. 1988) (failure to make contemporaneous objection to

evidence resulted in waiver of issue); State v. Davis, 741 S.W.2d 120, 124 (Tenn. Crim.

App. 1987) (failure to object to evidence “until after it was all placed before the jury”

resulted in waiver of issue); see also Tenn. R. App. P. 36(a) (“Nothing in this rule shall

be construed as requiring relief be granted to a party responsible for an error or who

- 25 -

failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of an error.”).

Based upon our review of the record, we discern no error was committed, and any

consideration of whether the statements submitted at trial could have been inadmissible

hearsay is waived for failure to object to the testimony at trial. See T.R.A.P. 36(a). In

addition, we note that the issue presented by the Defendant fails to meet the requirements

necessary for a finding of plain error. The Defendant is not entitled to relief as to this

issue.

D. Bruton Violation

The Defendant asserts that the trial court should have granted a mistrial when

Detective Dilworth testified about Mr. Harris’s identification of the Defendant because

Mr. Harris’s identification violated his constitutional right to confrontation.

The admission of a non-testifying co-defendant’s statement incriminating the

complaining defendant violates the complaining defendant’s constitutional right of

confrontation. Bruton v. United States, 391 U.S. 123, 126 (1968); see U.S. Const. amend.

VI; Tenn. Const. art. 1, § 9; Smart v. State, 544 S.W.2d 109, 111-12 (Tenn. Crim. App.

1976). The Bruton rule should only be applied when the non-testifying co-defendant's

statement constitutes ‘a significant portion of the evidence of guilt,’ and . . . if ‘ample

evidence was available to demonstrate [the defendant’s] guilt without reliance upon his

co-defendant’s confession,’ the violation would be considered harmless error.” State v.

Ogle, 666 S.W.2d 58, 60 (Tenn. 1984). If “the properly admitted evidence of guilt is so

overwhelming, and the prejudicial effect of the codefendant’s admission is so

insignificant by comparison[,]” then the improper use of the admission is harmless

beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 430 (1972). The mere

finding of a violation of the Bruton rule . . . does not automatically require reversal of the

ensuing criminal conviction.” Id. Reversal is not required unless it is proven beyond a

reasonable doubt that the error complained of contributed to the verdict. Chapman v.

California, 386 U.S. 18, 24 (1967); see State v. Lonta Montrell Burress, Jr., and Darius

Jerel Gustus, No. E2013-01697-CCA-R3-CD, 2014 WL 6855226, at *16 (Tenn. Crim.

App., at Knoxville, Dec. 4, 2014), no Tenn. R. App. P. 11 application filed.

The Defendant filed a pre-trial motion to exclude statements of non-testifying co-

defendants and the trial court granted the motion. At trial, defense counsel questioned

Detective Dilworth about identification of the Defendant as follows:

- 26 -

Defense: Nobody – at that time you investigated, that day of the crime,

you didn’t locate anybody who identified [the Defendant] that

date. Is that correct?

Detective: . . . No, sir, that’s not correct because what I believe, I believe

I obtained . . . a warrant before I went home that day for [the

Defendant], which would have meant I had probable cause. .

. So he would have been identified that day.

Defense: Okay. And part of that identification came from [the

victim]’s sister?

Detective: No, sir, that was later. The identification came from Mr.

Barry Harris, who stated he was extremely familiar with [the

Defendant] and personally witnessed the incident.

Defense Counsel objected, and the trial court sustained the objection. Defense counsel

resumed cross-examination with no mention of a curative instruction or a mistrial.

At the close of the State’s proof, defense counsel raised the issue while arguing his

motion for a judgment of acquittal. Defense Counsel stated, “I should have asked for the

Court, to at that point, charge the jury to disregard that but I think it calls more attention

to it than not.” After some further discussion, the trial court denied the motion for a

judgment of acquittal, conducted Momon hearings, and discussed the proposed jury

instructions with the parties. As they were preparing to bring the jury in the courtroom,

the following exchange occurred:

Defense: Judge, one other issue that we covered a little bit, but, Judge,

are you going to admonish the jury or advise the jury not to

regard the statement of Detective Dilworth regarding

admission, what their - -

Court: I can put that in the instructions but you have to be careful or

you’re drawing more attention to it.

Defense: That’s true.

Court: I’ll let you think about that.

Defense: We can reconsider that, Judge.

- 27 -

Court: We can do a - - you know, we can add on to that packet we

just handed you.

Defense: Sure.

Court: And you just need to think about what you want to do.

Defense: I will. Thank you.

Court: Certainly, I would tell the State you cannot mention that in

your closing argument.

Defense: Okay. Thank you.

State: Sure.

Defense counsel did not raise the issue again.

In our view, these interactions indicate that defense counsel did not seek a curative

instruction for tactical reasons, thus precluding plain error relief on appeal. See State v.

Ogle, 666 S.W.2d 58, 60 (Tenn. 1984). Furthermore, there was ample evidence

identifying the Defendant’s involvement in these crimes absent Detective Dilworth’s

mention of Mr. Harris’s identification of the Defendant. The victim identified the

Defendant in a photograph and testified at trial with certainty about the identification.

She stated that she was parked under a street light which provided ample light for her to

observe her attackers. One witness to the carjacking and robbery identified the

Defendant as a participant, in addition to two of the Defendant’s co-defendants, Ms.

Oden and Mr. Gullatt’s testimony regarding the Defendant’s involvement. In light of the

evidence at trial, we cannot conclude that Detective Dilworth’s testimony constituted “a

significant portion of the evidence of guilt.” The Defendant is not entitled to relief as to

this issue.

E. State’s Issues

In a cross appeal, the State challenges the trial court’s modification of Defendant’s

aggravated robbery conviction to robbery and the merger of the robbery conviction into

the carjacking conviction. The State asserts that the evidence supports the jury’s finding

of guilt of aggravated robbery under a theory of criminal responsibility; therefore, the

trial court’s decision to overturn the jury’s verdict was not supported by the evidence.

- 28 -

Preliminarily, we address the trial court’s wording in the order referring to its

decision “as thirteenth juror.” This reference to acting as “thirteenth juror” conflicts with

the trial court’s explicit statement that it “deem[ed]” the pleading a motion for a judgment

of acquittal and then finding the Defendant not guilty of the charged offense. Based upon

our review of the record, we agree with the State that the trial court was proceeding under

Tennessee Rule of Criminal Procedure 29, and not under the “thirteenth juror” rule.

Therefore, we review this issue accordingly.

Rule 29(a) of the Tennessee Rules of Criminal Procedure provides that a “court on

motion of a defendant or on its own motion shall order the entry of judgment of acquittal

of one or more offenses charged in the indictment or information after the evidence on

either side is closed if the evidence is insufficient to sustain a conviction of such offense

or offenses.” Further, Rule 29(c) reads as follows:

If the jury returns a verdict of guilty or is discharged without having

returned a verdict, a motion for judgment of acquittal may be made or

renewed within 30 days of the date the order of sentence is entered or

within such further time as the court may fix during the 30-day period. . . .

If a verdict of guilty is returned the court may on such motion, set aside the

verdict and after disposing of a motion for a new trial enter judgment of

acquittal. The [S]tate shall have the right of appeal where the court sets

aside a verdict of guilty and enters a judgment of acquittal.

Tenn. R. Crim. P. 29(c). The standard by which the trial court determines a motion for

judgment of acquittal is, essentially, the same standard applied by this Court in

“determining the sufficiency of the evidence after a conviction; that is, whether ‘any

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

reasonable doubt.’” State v. Gillon, 15 S.W.3d 492, 496 (Tenn. Crim. App. 1997)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under this standard the trial

court must take the strongest legitimate view of the evidence in favor of the State, and

allow it all reasonable inferences which might be drawn therefrom. See id.

A motion for judgment of acquittal presents a question of law. State v. Adams,

916 S.W.2d 471, 473 (Tenn. Crim. App. 1995); State v. Hall, 656 S.W.2d 60, 61 (Tenn.

Crim. App. 1983). The trial court must only determine if the evidence is legally

sufficient to sustain a conviction. Adams, 916 S.W.2d at 473. “The trial court is not

permitted to weigh the evidence in reaching its determination.” Id. “An appellate court

must apply the same standard as a trial court when resolving issues predicated upon the

grant or denial of a motion for judgment of acquittal.” Id. at 473. As the issue presents a

question of law, our review is de novo. Id.

- 29 -

Because we have already determined that there is sufficient evidence to support

the Defendant’s convictions, we vacate the trial court’s grant of the motion for judgment

of acquittal. We note that the trial court, in granting the motion, appeared to rely on a

concern that the jury had rendered inconsistent verdicts as to Count 1 and Count 3. In

Tennessee, inconsistent verdicts are unassailable absent a legal insufficiency. State v.

Davis, 466 S.W.3d 49, 73 (Tenn. 2015) (concluding that this rule applied when the jury,

in one count, convicted the defendant of second degree murder, thereby establishing that

he committed a knowing killing and then, on the second count, the jury acquitted the

defendant of second degree murder, choosing instead to convict the defendant of reckless

homicide). The Tennessee Supreme Court stated, “We continue to agree with the

significant majority of jurisdictions that inconsistent jury verdicts are not a basis for

relief.” Id. The verdicts are still subject, however, to analysis of whether the evidence is

sufficient to sustain them. Id. at 72; see also State v. Ike O. Nwangwa, No. E2015-01086-

CCA-R3-CD, 2016 WL 1615670, at *3 (Tenn. Crim. App., at Knoxville, Apr. 20, 2016),

no Tenn. R. App. P. 11 application filed.

Accordingly, as to Count 3, we vacate the trial court’s order granting the motion

for judgment of acquittal of the offense of aggravated robbery and reinstate the jury’s

verdict finding the Defendant guilty of aggravated robbery. The trial court also

improperly merged Count 3 into the carjacking offense. Merger is required for guilty

verdicts on alternative charges to avoid imposing multiple punishments for the same

offense. See State v. Price, 46 S.W.3d 785, 824 (Tenn. Crim. App. 2000). Count 3,

aggravated robbery, is not an alternative count to carjacking. See State v. Wilson, 211

S.W.3d 714 (2007).

Upon remand, the trial court shall reinstate the jury’s verdict of aggravated

robbery in Count 3, sentence the Defendant for aggravated robbery in Count 3, and

determine the issue of the alignment of that sentence with the sentence in Count 2. The

trial court shall correct the judgment in Count 2 to omit the language indicating the

merger of Count 3 into Count 2. Count 1 and Count 2 have been correctly merged by the

trial court.

III. Conclusion

After a thorough review of the record and the applicable law, we affirm in part,

vacate in part and remand to the trial court for the correction of the judgment in Count 2

and the entry of judgment for aggravated robbery in Count 3.

- 30 -

____________________________________

ROBERT W. WEDEMEYER, JUDGE

- 31 -