                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                  AT JACKSON

                       STATE OF TENNESSEE v. KENNY KIMBLE

                 Direct Appeal from the Criminal Court for Shelby County
                          No. 10-04024     Paula Skahan, Judge



                    No. W2012-00407-CCA-R3-CD - Filed July 22, 2013



JUDGE JERRY L. SMITH, Concurring in Results.

                                   CONCURRING OPINION

           I am writing separately to express my disagreement with the majority opinion's
  assertion that a trial judge's ruling with regard to hearsay is subject to review under an abuse
  of discretion standard. I am persuaded that the analysis of State v. Gilley, 297 S.W.3d 739
  (Tenn. Crim. App. 2008), perm. app. denied, (Tenn. Feb. 17, 2009), is the appropriate method
  for reviewing issues involving hearsay. Although this analysis has been questioned by our
  supreme court in the Pylant and Franklin decisions cited by the majority, Gilley has never
  been overruled by that court. Until such time as our supreme court sees fit to overrule Gilley,
  I feel compelled to follow it. See Tenn. Sup. Ct. R. 4(G)(2) (requiring that published appellate
  opinions be considered controlling authority unless reversed or modified by a court of
  competent jurisdiction).

          In the instant case, in my opinion, the victim's statement to his mother concerning the
  soiled shirt clearly falls under Tennessee Rule of Evidence 803(2) and is admissible as an
  excited utterance exception to the rule against the admission of hearsay. Thus, I am able to
  concur with the results reached by the majority with respect to this issue. In all other respects
  I concur fully with the judgment of the Court.




                                                              JERRY L. SMITH, JUDGE
