         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 14, 2007

                  STATE OF TENNESSEE v. ROBERT L. YATES

                  Direct Appeal from the Circuit Court for Warren County
                         No. F-10328   Larry B. Stanley, Jr., Judge



                     No. M2006-02278-CCA-R3-CD - Filed June 6, 2008


The defendant, Robert L. Yates, was convicted of aggravated robbery, a Class B felony, and was
sentenced as a Range III, persistent offender to thirty years in the Tennessee Department of
Correction. On appeal, he argues that the trial court erred in overruling his motion to suppress and
in allowing into evidence a photo identification. After careful review, we affirm the judgment from
the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH , JJ., joined.

Bud Sharp, McMinnville, Tennessee (on appeal), and Tracy Caten, McMinnville, Tennessee (at
trial), for the appellant, Robert L. Yates.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Lisa Zavogiannis, District Attorney General; and Thomas J. Miner, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

       The defendant was convicted of aggravated robbery and sentenced to thirty years in the
Tennessee Department of Correction. On appeal, he argues that the trial court erred in overruling
his motion to suppress and in admitting a photo identification into evidence.

        The subject of the motion to suppress was an incriminating statement made by the defendant
to police officers in which he acknowledged involvement in the crime. The officer testified that he
did not initiate the conversation with the defendant but did not discourage him from talking. The
defendant told the officers that he bought methamphetamine from the store clerk and that the store
clerk said that $500.00 had been taken. The defendant further told the officers that “there was a
whole lot more than that taken, about $1,500.00 and one ounce of meth.”
        The defendant testified that the officer initiated a conversation with him by asking how the
criminal case was going and asking him about the money that was taken. The defendant asserted that
the officer lied. He said that he told the officer about the store clerk selling meth so the officers
could “get her.” The defendant testified that he previously pled guilty when he was guilty and said
that he did not commit the underlying crime. He acknowledged that he had four prior felony forgery
and theft convictions.

        The court overruled the defendant’s motion to suppress and held that the officer’s testimony
was credible. The court stated on the record that the officer had always been truthful with the court
in the past and that he appeared to be telling the truth.

                                               Analysis

        The defendant concedes that he made the statement he sought to suppress but contends that
it should have been suppressed because it violated his Miranda rights. His argument rests on
whether the officer initiated their conversation. However, the defendant has not offered any evidence
that the officer did anything to elicit the statement from him. The findings of fact made by the trial
court at the hearing on a motion to suppress are binding upon this court unless the evidence
contained in the record preponderates against them. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001).
The trial court, as the trier of fact, is able to assess the credibility of the witnesses, determine the
weight and value to be afforded the evidence, and resolve any conflicts in the evidence. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party is entitled to the strongest legitimate
view of the evidence and all reasonable inferences drawn from that evidence. State v. Hicks, 55
S.W.3d 515, 521 (Tenn. 2001). The defendant has the burden of establishing that the evidence
contained in the record preponderates against the findings of fact made by the trial court. Braziel
v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

        Here, the defendant has not met his burden of demonstrating that the evidence preponderates
against the findings of fact made by the trial court. Therefore, he is not entitled to any relief on this
issue.

        Next, the defendant argues that the trial court erred in admitting a photo identification into
evidence. The State asks this court to waive the issue because the defendant failed to object to the
introduction of the evidence prior to trial and during trial. The State refers to Tennessee Rule of
Appellate Procedure 36(a) to support the position that the issue was waived for failure to make a
contemporaneous objection. We agree that the defendant failed to take necessary action to prevent
the potential harmful effect of the error.




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                                           Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgment from the trial
court.




                                                     ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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