                                                                                         01/30/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 11, 2017

                STATE OF TENNESSEE v. DANIEL PEREZ

                 Appeal from the Criminal Court for Shelby County
                    No. 15-04988       John Campbell, Judge


                            No. W2016-02483-CCA-R3-CD


The Defendant, Daniel Perez, was convicted of one count of aggravated robbery. The
Defendant argues: (1) that the evidence was insufficient to support his conviction, and (2)
that the trial court erred in allowing the State to reference witnesses that the Defendant
could have produced at trial. Following our review, the judgment is affirmed.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Stephen C. Bush, District Public Defender; Tony N. Brayton, Assistant Public Defender
(on appeal); and Neil Umstead, Assistant Public Defender (at trial), for the appellant,
Daniel Perez.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Amy P. Weirich, District Attorney General; and Olivia Brame, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                              FACTUAL BACKGROUND

       This case arose following the July 4, 2015 robbery of the victim, Jose Murguia.
Thereafter, the Shelby County Grand Jury charged the Defendant with one count of
aggravated robbery. See Tenn. Code Ann. § 39-13-402. A trial began in the Criminal
Court for Shelby County on September 12, 2016.
        The victim testified that he was robbed “in the afternoon” on July 4, 2015, at the
Prescott Place Apartments. He explained that he was “walking toward the store” located
in his apartment complex and “turned around because” the store “didn’t have the food
that [the victim] ordered.” The victim stated that he saw a “Ford F-150 black” truck near
his apartment when he walked to the store and that the Defendant “was in the truck with
his partner.” The victim said that he “didn’t think anything” about seeing the truck.
However, as the victim was “walking back to [his] house[,]” the Defendant and another
individual “jump[ed] out from the bushes[.]” The Defendant told the victim, “Don’t
move or we f—k you up.” The victim said that he knew one of the individuals was the
Defendant because the victim “turn[ed]” and looked “over [his] shoulder” and saw the
Defendant. The victim said that he observed the Defendant holding a gun and that the
Defendant placed the gun against the victim’s head. The victim testified that he feared
for his life and that he believed the two men would kill him. The victim claimed that one
of the individuals removed his wallet from his pocket and took $150.00 from it. The
victim explained that the two indivduals were standing behind him, so he was not able to
see which one reached into his pocket. When asked what happened after the Defendant
“put a gun to [the victim’s] head and after someone took [his] wallet[,]” the victim stated,
“They got into a truck. [The Defendant] drove -- and they drove off.” The victim said
that it was the same Ford truck he observed when he originally left his apartment.

       The victim stated that he knew the Defendant prior to this incident. He explained
that the Defendant was “around the apartments” where the victim lived “on Fridays and
Saturdays[.]” The victim said that he had seen the Defendant at the apartment complex
approximately three times prior to the robbery. Furthermore, the victim testified that the
Defendant “was always driving” the black truck. Regarding the truck, the victim
asserted, “It’s [the Defendant’s].” On-cross examination, the victim agreed that he had
seen the Defendant “more than three or four times” at the apartment complex and agreed
that he had never spoken to the Defendant.

       Furthermore, the victim admitted that the only time he saw the Defendant’s face
was “when [he] turned around for those couple of seconds” during the robbery. Counsel
for the Defendant asked the victim if he remembered being asked the following question
during the preliminary hearing:

       Defense counsel: “After they threw the wallet down they then turned and
       ran away from you toward their truck; is that right?”

       The victim: “Yes, yes, because I saw them when they went toward the
       truck.”



                                            -2-
      Defense counsel: “Okay. Your answer to that question was: Okay. They
      turned the truck on. I walked toward the hallway and I see them in the
      truck when they quickly pulled away. I saw his face.”

      The victim: “Yes. When they passed by with the truck and they came
      around, yes, I saw his face. I saw his face again.”

      Defense counsel: “Okay. But you testified the only time you saw him that
      day was when you turned your head and then when they ran off you never
      saw them again.”

      The victim: “When he put the gun toward my head . . . I turned around, I
      saw his face. And then when they drove off yeah, they passed by and I saw
      [the Defendant].”

      The victim explained that after the robbery, he called the police. The following
day on July 5, 2015, the victim went to the police station and gave a formal statement.
While at the station, the victim identified the Defendant in a photographic lineup. The
State provided the victim with a document, and the victim identified it as the
photographic lineup he viewed on July 5, 2015. He agreed that he had circled a
photograph of the Defendant and that his signature appeared on the document under a
statement reading, “This is the person that robbed me with another person with tattoos.”

       Ernesto Vasquez testified that he was living at Prescott Place Apartments on July
4, 2015. Mr. Vasquez said that he remembered calling the police on July 4, 2015, due to
the fact that he “saw a truck that seemed suspicious to [him] because it was driving
around, coming in and out” of the apartment complex and “sometimes [the truck] sped
up.” Mr. Vasquez said that this occurred in the afternoon some time after 4:00 p.m. and
that the truck was a black F-150. He explained that he took note of the truck’s tag
number and gave this information to the police that day when they arrived at the
apartment complex. When asked if he observed any individuals in the truck, Mr.
Vasquez responded, “The[re] were [a] few of them, three or four.” He explained that the
individuals were men and that he “didn’t see [the men] that close[,] but [he thought] they
were Hispanic.”

       Mr. Vasquez stated that on July 5, 2015, he went to the police station. At the
station, he was shown a photographic lineup and identified the Defendant as the man
driving the black F-150 truck. Mr. Vasquez also informed the police that he had seen the
Defendant prior to July 4, 2015, driving the same black truck. The State provided Mr.
Vasquez with a document, and Mr. Vasquez identified it as the photographic lineup he
viewed on July 5, 2015. He agreed that he had circled a photograph of the Defendant and
that his signature appeared on the document under a statement reading, “[T]he one
                                          -3-
driving the black truck Ford F-150 before the robbery.” Mr. Vasquez testified that he did
not know the victim before July 4, 2015, and that he did not see the victim being robbed.

       Officer Steven Grigsby testified that he was employed with the Memphis Police
Department (MPD) and that he was working on July 4, 2015. Officer Grigsby stated that
he received a call regarding a robbery at Prescott Place Apartments. Upon arrival at the
scene, Officer Grigsby spoke to the victim and Mr. Vasquez, who were “talking about a
robbery.” After speaking with the two men individually, Officer Grigsby “learned that
[the victim] had been robbed at gunpoint by two male Hispanics on the north side of his
building in the Prescott Place Apartments.” Officer Grigsby also said that Mr. Vasquez
“provided a description of a black F-150 with Mississippi tags and gave [him] the tag.”
Officer Grigsby testified that he “was given [an] address, as well as the name of” the
Defendant. Officer Grigsby went to that address that night but “did not locate the black
F-150[,] so [he] followed up the next day.” After speaking with a woman at this address,
he learned that the Defendant “had an apartment in the Willow Place” complex. Officer
Grigsby stated that he went to this apartment complex with his partner and “located a
black F-150 with the tags that matched almost identically. It was one letter off.” After
speaking with “several pedestrians in the complex,” Officer Grigsby was able to locate
the Defendant in a particular apartment. Officer Grigsby testified that after finding the
Defendant, he “transported him to Mt. Moriah General Assignment Bureau.”

       On cross-examination, Officer Grigsby confirmed that he never conducted a
search of the Defendant’s truck, nor did he “ever see any property or money in [the
Defendant’s] possession.

        Detective Casey Amen testified that he was a detective for the MPD and that he
was working in this capacity on July 5, 2015. Detective Amen said that he was working
on the robbery case involving the victim. Detective Amen testified that the victim gave a
statement regarding the robbery and identified the Defendant in a photographic lineup.
Furthermore, Detective Amen stated that he spoke with Mr. Vasquez and that Mr.
Vasquez identified the Defendant in a photographic lineup. Detective Amen also
testified that he spoke with the Defendant after advising him of his Miranda1 rights.
Detective Amen asserted that the Defendant indicated to him that he undstood his rights
and that the Defendant signed an “Advice of Miranda rights” form. The State provided
Detective Amen a document, and he identified it as the form the Defendant signed.
Detective Amen said that the Defendant told him “he was at the Prescott Place
Apartments . . . to get some food” and “denied any involvement in any robbery.” The
Defendant agreed that he drove a black F-150 truck and that he was driving it on July 4,
2015. The Defendant told Detective Amen that he was at Prescott Place Apartments to
1
    See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                   -4-
“visit a friend” or “a relative of some sort[,]” but the Defendant did not tell him much
“about who that person was.” Detective Amen stated, “That’s all [the Defendant] said.”
He explained that the Defendant “didn’t tell [him] much.”

        On cross-examination, Detective Amen testified that he “did not go to the scene of
the robbery[,]” nor did he “knock on any doors [at Prescott Place Apartments] to try to
find any witnesses who may or may not have seen what happened.” Detective Amen
testified that he attempted to get surveillance video from the apartment complex but was
unsuccessful. Detective Amen agreed that he did not obtain search warrants for the black
F-150 truck or the Defendant’s residence. Detective Amen also confirmed that he did not
listen to any 9-1-1 calls that were made regarding this case. Detective Amen stated that
he did not take a written statement from Mr. Vasquez because “[h]e refused to give a
statement” and “it was hard enough getting [Mr. Vasquez] to look at the lineup.”

        On re-direct examination, Detective Amen testified that at the time he began
working on the case, the Defendant had already been located. Detective Amen also
agreed that he was able to close this case quickly because the victim gave “a quick
identification” of the Defendant, he had “a matched vehicle description to the tag” of the
Defendant’s black truck, and “Officer Grigsby had already been to the scene of the
crime.”

       The Defendant testified that he was at the Prescott Place Apartments on July 4,
2015. He said that he was not living there at that time but asserted that he had lived there
previously. The Defendant said that he was at the Prescott Place Apartments on July 4,
2015, to get a hair cut and explained that he regularly got his hair cut there. The
Defendant said that he drove his black F-150 truck to the apartment complex and that two
individuals were with him: Miguel and Tomas. The Defendant stated that he arrived at
6:45 p.m. and parked in front of the apartment of the man who cut his hair. The
Defendant explained that he was not able to get his hair cut because the man was leaving
the apartment complex. The Defendant said that he then decided to “get some bread”
from “a truck parked there selling things.” The Defendant said that “there were a lot [of
people] at the truck and there was a man there playing with his children on a bicycle.”
The Defendant said he purchased “a sack of bread” for $5 and, shortly after, he and the
two men left the apartment complex. The Defendant denied “driving around the
apartment complex erratically” and had no idea “why [Mr. Vasquez] would say that.”

        The Defendant stated that he remembered the police coming to his residence the
following day, July 5, 2015. He said that his “half-cousin[,]” Miguel, was at his
apartment and opened the door when the police arrived. The Defendant explained that he
saw Miguel’s talking with the police and then the police placed the Defendant under
arrest. The Defendant testified that he remembered speaking with Detective Amen at Mt.

                                            -5-
Moriah but said that he was unaware that Detective Amen was a detective at that time.
The Defendant said that he told Detective Amen that he had been at the Prescott Place
Apartment complex on July 4, 2015, to get a hair cut. The Defendant stated that he
informed Detective Amen that both his “half-cousin[,]” Miguel, and his brother-in-law,
Tomas, were with him at the Prescott Place Apartment complex. The Defendant denied
seeing the victim or Mr. Vasquez at the apartment complex. The Defendant also asserted
that he never robbed the victim and claimed that neither he, Miguel, nor Tomas had a
gun.

        On cross-examination, the State asked the Defendant about the two men who were
with him on July 4, 2015. The Defendant stated that their first and last names were
Miguel Flores and Tomas Jimon. Counsel asked the Defendant if he gave police “the
first and last names of the two people [he was] with on that day[,]” and the Defendant
replied, “Yes.” The State then asked, “Why aren’t they here today?” The Defendant
said that he did not know. The State asked him if he “heard Detective Amen’s testimony
that [the Defendant] didn’t tell him who [the Defendant] was with” that day and that the
Defendant “mentioned something about being with someone who may [have] be[en] a
relative[.]” The Defendant affirmatively responded and replied, “I only said the name,
first name[.]”

        The Defendant also testified that Miguel Flores gave a statement to the police
about what occurred on July 4, 2015. The State then asked the Defendant if he “ever told
anyone that Miguel gave a statement to police.” The Defendant replied no and agreed
that the day of trial was the first day he had mentioned that Miguel gave a statement. The
Defendant testified that he did not know the name of the man he went to see to have his
hair cut, but he stated that the man’s nickname was Banano. The Defendant agreed that
prior to trial, he did not tell the investigating police officers Banano’s name.

        The State asked the Defendant why he did not tell the police Banano’s name and
why Banano was not testifying at trial. Defense counsel objected to these questions, and
the trial court ruled that the State’s questions were proper, and the prosecutor asked the
Defendant why he had not called Miguel, Tomas, and Banano to testify. The Defendant
replied, “I don’t have anyone to talk with . . . . I’ve lost my whole family.” The
Defendant explained that he did tell his attorney about what happened and who he was
with on July 4, 2015, and asserted that he did tell the police “[a]bout the other people . . .
with [him] when the robbery took place.” When asked again if he told the police the first
and last names of the individuals with him, the Defendant replied, “I just told them the
names Tomas and Miguel and that I went to get my hair cut.”

      The State called Detective Amen as a rebuttal witness, and he confirmed that he
spoke with the Defendant on July 5, 2015. Detective Amen testified that he had asked

                                             -6-
the Defendant “who he might have been with” that day and that the Defendant told him
he was with “a relative of some sort . . . like a distant cousin.” Detective Amen testified
that he asked the Defendant for a name of this relative, but the Defendant provided
neither a name nor an address for this individual. Detective Amen asserted that had the
Defendant given it to him, he would have followed up on that information. Furthermore,
Detective Amen testified that no one contacted him with any additional information
regarding the Defendant and asserted that if someone had, he would have followed up on
that information. Detective Amen testified that the Defendant never mentioned Miguel
Flores, Tomas Jimon, or Banano. He also testified that the Defendant never mentioned
“that he was going to get his hair cut at” Prescott Place Apartments on the day of the
incident.

       At the conclusion of the trial, the jury convicted the Defendant as charged, and the
Defendant was sentenced to serve eight years’ confinement in the Tennessee Department
of Correction. The Defendant filed a timely notice of appeal, and the case is now before
us for our review.

                                       ANALYSIS

                                       I. Sufficiency

       The Defendant contends the evidence was insufficient to sustain his conviction for
aggravated robbery. Specifically, the Defendant argues that the evidence was insufficient
because the State proved “that [the Defendant] drove a black Ford F-150 truck[] but
failed to conclusive[ly] pro[ve] that [the Defendant was] guilty of the offense of
robbery.” The State responds that the evidence was sufficient to support the Defendant’s
conviction. We agree with the State.

        An appellate court’s standard of review when the Defendant questions the
sufficieny of the evidence on appeal is “whether, in 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). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty
verdict “removes the presumption of innocence and replaces it with a presumption of
guilt, and [on appeal] the defendant has the burden of illustrating why the evidence is
insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914

                                            -7-
(Tenn. 1982). “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).

       “Direct and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).
The reason for this is because with both direct and circumstantial evidence, “a jury is
asked to weigh the chances that the evidence correctly points to guilt against the
possibility of inaccuracy or ambiguous inference[.]” Id. at 380 (quoting Holland v.
United States, 348 U.S. 121, 140 (1954)). To that end, the duty of this court “on appeal
of a conviction is not to contemplate all plausible inferences in the [d]efendant’s favor,
but to draw all reasonable inferences from the evidence in favor of the State.” State v.
Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

       As relevant here, robbery is defined as “the intentional or knowing theft of
property from the person of another by violence or putting the person in fear.” Tenn.
Code Ann. § 39-13-401. Aggravated robbery is robbery “[a]ccomplished with a deadly
weapon or by display of any article used or fashioned to lead the victim to reasonably
believe it to be a deadly weapon[.]” Tenn. Code Ann. § 39-13-402(a)(1).

       “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.” Tenn. Code Ann. § 39-11-401(a). As relevant
here, a person is criminally responsible for the conduct of another if, “[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[.]” Tenn. Code Ann. § 39-11-402(2).

      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
conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). To
prove guilt through a theory of criminal responsibility the State must establish that the
defendant “‘knowingly, voluntarily and with common intent unite[d] with the principal
offender[] in the commission of the crime.’” State v. Maxey, 898 S.W.2d 756, 757
(Tenn. Crim. App. 1994) (quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim.
App. 1988)).

       The identity of the perpetrator is an essential element of any crime. State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793
(Tenn. 1975)). The State has the burden of proving “the identity of the defendant as the
perpetrator beyond a reasonable doubt.” State v. Sneed, 908 S.W.2d 408, 410 (Tenn.
                                            -8-
Crim. App. 1995)). The identity of the defendant as the perpetrator may be established
by direct evidence, circumstantial evidence, or a combination of the two. Thompson, 519
S.W.2d at 793. The identification of the defendant as the perpetrator is a question of fact
for the jury after considering all the relevant proof. State v. Strickland, 885 S.W.2d 85,
87 (Tenn. Crim. App. 1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim.
App. 1982)).

       Here, there is sufficient evidence to support the Defendant’s conviction for
aggravated robbery. The victim testified that two men came at him from behind the
bushes and robbed him at gunpoint. The victim claimed that one of the men placed the
gun against his head and that the victim turned his head and saw the Defendant’s face.
The victim testified that he recognized the Defendant and that prior to the incident, he
had seen the Defendant on multiple occasions at Prescott Place Apartments.
Furthermore, the victim said that he saw the Defendant’s driving away from the
apartment complex in a black Ford truck, which he had observed the Defendant driving
on multiple occasions prior to the robbery. Mr. Vasquez confirmed that the Defendant
had been driving his black truck at Prescott Place Apartments, and the Defendant
admitted to being there on the day of the robbery. Officer Grigsby responded to the
scene and testified that the victim informed him that two men had robbed him at gunpoint
and that Mr. Vasquez gave him the license plate number of the black Ford truck. Officer
Grigsby tracked down this truck and discovered the Defendant at another apartment
complex. Detective Amen testified that both the victim and Mr. Vasquez identified the
Defendant in a photographic lineup. Detective Amen also testified that he took a
statement from the Defendant and that the Defendant admitted to being at Prescott Place
Apartments but did not give very much information. The Defendant testified and offered
a different explanation for his presence at Prescott Place Apartments on the day of the
robbery; however, it appears that the jury credited the State’s proof rather than the
Defendant’s. See Bland, 958 S.W.2d at 659. Thus, the evidence is sufficient to support
the Defendant’s conviction for aggravated robbery, and he is not entitled to relief.

                                  II. Missing Witnesses

        On appeal, the Defendant argues that the trial court erred in allowing the State to
“cross-examine the [D]efendant regarding his failure to produce certain witnesses at trial”
and that such error was not harmless. Specifically, the Defendant objected to the State’s
questions and references regarding “Miguel Flores, Tomas Jimon[,] and a person known
as Banano[.]” Additionally, the Defendant argues that the State failed to establish the
necessary requirements before referencing missing witnesses. The State responds that the
trial court did not abuse its discretion when it allowed the State to cross-examine the
Defendant regarding missing witnesses.

                                            -9-
       In Tennessee, “the propriety, scope, manner and control of the examination of
witnesses is a matter within the discretion of the trial judge, subject to appellate review
for abuse of discretion.” State v. Caughron, 855 S.W.2d 526, 540 (Tenn. 1993); see State
v. Hutchison, 898 S.W.2d 161, 172 (Tenn. 1994); State v. Dishman, 915 S.W.2d 458, 463
(Tenn. Crim. App. 1995); State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim. App.
1994); see also Tenn. R. Evid. 611(a) (stating that the trial court has authority to
“exercise appropriate control over the presentation of evidence and conduct of the trial
when necessary to avoid abuse by counsel”). “Absent a clear abuse of this discretion that
results in manifest prejudice to the accused, this court will not interfere with the trial
court’s exercise of its discretion.” State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim.
App. 1984).

       In certain situations, if a party fails to call a particular person as a witness, an
inference may be drawn that had the person testified, the testimony would have been
unfavorable to that party. See State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). Before
a party is permitted to invoke the missing witness rule,

       the evidence must show that [1] the witness had knowledge or material
       facts, [2] that a relationship exists between the witness and the party that
       would naturally incline the witness to favor the party; and [3] that the
       missing witness was available to process of the Court for trial.” []Francis,
       669 S.W.2d at 88 (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn.
       1979)). “[W]hen it can be said ‘with reasonable assurance that it would
       have been natural for a party to have called the absent witness but for some
       apprehension about his testimony,’ an inference may be drawn by the jury
       that the testimony would have been unfavorable.” Id. at 88-89 (quoting
       Burgess v. United States, 440 F.2d 226, 237 (D.C. Cir. 1970)); see also 7
       Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 42.16. However, the inference is
       not appropriate when the proof fails to establish all three of the Delk
       factors. See Francis, 669 S.W.2d at 88 n.3. Due to the “potentially critical
       effect of the missing witness rule,” the Delk requirements must be strictly
       construed. Id. at 89.

State v. Whitaker, No. E2014-02330-CCA-R3-CD, 2015 WL 5179196, at *2 (Tenn.
Crim. App. Sept. 4, 2015), perm. app. denied (Jan. 15, 2016). Furthermore, “[t]he
inference may not be invoked when it is merely shown that (1) the witness ‘may have
some knowledge of the facts involved,’ Francis, 669 S.W.2d at 88, or (2) the witness is
equally available to both parties. State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App.
1992).” State v. Walter Williams, No. W2009-02438-CCA-R3CD, 2011 WL 2306246, at
*6 (Tenn. Crim. App. June 7, 2011).


                                           -10-
        First, we must consider whether the Defendant has waived this issue on appeal.
The Defendant failed to make a contemporaneous objection when the prosecutor initially
asked the Defendant why Miguel and Tomas were not present at trial. The Defendant
replied that he did not know why, and the prosecutor continued questioning the
Defendant about Miguel and Thomas without objection. Although the issue was raised
by the Defendant on appeal, any error was unattended by a contemporaneous objection at
trial. See Tenn. R. Evid. 103 (stating that a timely objection “stating the specific ground
of objection” is necessary to preserve claim of erroneous admission of evidence); see also
State v. Robert Simerly, No. E2002-02626-CCA-R3-CD, 2004 WL 443294, at *5 (Tenn.
Crim. App. Mar. 11, 2004). Accordingly, the Defendant has waived our consideration of
his claim that the prosecutor improperly questioned him as to why Miguel and Tomas
were not at the trial. See 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 failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an
error.”).

        The Defendant first objected to the prosecutor’s line of questioning about potential
defense witnesses when the State asked the Defendant why Banano was not present at
trial. Upon defense counsel’s objection, a bench conference took place:

       Defense counsel: Judge, I think these questions run afoul of . . . [the]
       burden of proof in this case being towards the State. [The Defendant]
       doesn’t have to present any of these people, and I don’t think the State
       should be allowed to argue inferences about them not being here.

       The State: It’s in the full scope of cross-examination. On direct
       examination he said he went to see his hairstylist. I’m asking about that,
       like any other witness.

       Trial court: Well here’s the deal. He’s testifying. He’s putting all kinds of
       things in the record. He’s made all these things relevant. The State can
       certainly ask. The State can probably ask for a missing witness at this point
       in time. I mean, it’s a situation where he’s being pretty specific about stuff
       that obviously apparently nobody knew about. He’s the only person that
       knows this.

       Following the trial court’s ruling, the State asked the Defendant the following
questions regarding Miguel, Tomas, and Banano:

               And you didn’t think that you should reach out to any of these three
       people you mentioned Miguel, Tomas, Banano and ask them hey, I’m on
       trial for something I didn’t do and y’all were with me, would you come and
                                            -11-
      help me out? Would you talk to [the] police? Would you go to the trial?
      Would you testify?

        We conclude that the prosecutor’s questions to which the Defendant objected and
his questions following the bench conference regarding the Defendant’s failure to call
these witnesses were improper. We do not agree that the prosecutor’s questions
following the bench hearing were simply within the scope of cross-examination because
the Defendant introduced new information. Though the State never specifically asked for
a negative inference in accordance with the missing witness rule, the prosecutor
nevertheless commented on the Defendant’s failure to call witnesses, whose testimony
would be expected to be favorable. See State v. Michael D. Sweat, No. E2008-00423-
CCA-R3-CD, 2010 WL 153038, at *20 (Tenn. Crim. App. Jan. 15, 2010) (holding that
the prosecutor’s comments during cross-examination regarding the Defendant’s failure to
call alibi witnesses were improper because the “proper Delk foundation was not laid
before the State attempted to question the witness about other missing witnesses.”).
Here, the State failed to lay the proper Delk foundation before asking the Defendant
about missing witnesses, and the trial court erred in allowing the State to proceed
commenting on the missing witnesses without doing so. Having determined that the
prosecutor’s remarks were improper, we must determine whether the improper remarks
could have affected the verdict. See Judge v. State, 539 S.W.2d 340, 344-35 (Tenn.
Crim. App. 1976); Tenn. R. App. P. 36(b). (“A final judgment from which relief is
available and otherwise appropriate shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the judgment
or would result in prejudice to the judicial process.”).

      In Judge, this court set out considerations for determining if a prosecutor’s
conduct could have improperly prejudiced the defendant and affected the verdict:

      1. The conduct complained of viewed in context and in light of the facts
      and circumstances of the case.

      2. The curative measures undertaken by the court and the prosecution.

      3. The intent of the prosecutor in making the improper statement.

      4. The cumulative effect of the improper conduct and any other errors in the
      record.

      5. The relative strength or weakness of the case.



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See Sweat, 2010 WL 153038, at *20 (applying these factors to a prosecutor’s failure to
establish the proper Delk foundation prior to asking the Defendant about missing
witnesses).

       Applying these factors, we first note that the Defendant waived review of the
prosecutor’s initial questions regarding Miguel and Tomas by failing to object when the
prosecutor initially questioned the Defendant about these two witnesses. Though later in
cross-examination the Defendant properly objected to the prosecutor’s making further
comments about the absence of Miguel, Tomas, and Banano, we conclude that the error
did not likely effect the jury’s verdict. Prior to the Defendant’s objection, the prosecutor
had already asked the Defendant, without objection, why Miguel and Tomas were not
present at trial. During direct examination, the Defendant had testified that these two
men, who were related to him by blood or marriage, were with him at the Prescott Place
Apartments on the day of the incident. The jury would have been able to draw a negative
inference about their absence prior to the Defendant’s objection. Furthermore, the trial
court instructed the jury that the law presumed the Defendant was innocent and that the
Defendant was not required to prove his innocence. Additionally, during closing
argument, the prosecutor reminded the jury to “please never forget that the burden of
proof is on the State and it never shifts to the defense.” Moreover, the evidence against
the Defendant was strong. The victim identified the Defendant as the man who robbed
him at gunpoint, and Mr. Vasquez saw the Defendant at the apartment complex on the
day of robbery. Though the Defendant denied robbing the victim, he admitted to being at
the apartment complex on July 4, 2015. Furthermore, we have already determined that
the evidence against the Defendant was sufficient to sustain his conviction for aggravated
robbery. Thus, in light of the Judge factors, we cannot say that the prosecutor’s questions
during cross-examination more probably than not affected the outcome of the trial. See
Tenn. R. App. P. 36(b).

                                     CONCLUSION

       Based upon the foregoing, the judgment of the trial court is affirmed.

                                                  ______________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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