         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 5, 2008

          STATE OF TENNESSEE v. REGGIE CARNELL JAMES
                      Appeal from the Circuit Court for Madison County
                            No. 06-568 Donald H. Allen, Judge



                   No. W2007-00775-CCA-R3-CD - Filed March 10, 2009



A Madison County jury convicted the defendant, Reggie Carnell James, of one count of first degree
murder and one count of tampering with evidence. The trial court sentenced the defendant to life
in prison for the murder conviction and ten years as a Range II, multiple offender, for the evidence
tampering conviction. On appeal, the defendant argues that the evidence produced at trial was
insufficient to sustain his convictions. After reviewing the record, we affirm the judgments of the
trial court.


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


D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE , J.,
joined. THOMAS T. WOODALL , J., not participating.

Robert Brooks, Memphis, Tennessee (on appeal); and J. Michael Mosier, Jackson Tennessee (at
trial), for the appellant, Reggie Carnell James.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe and Rachel E. Willis,
Assistant Attorneys General; James G. Woodall, District Attorney General; and Alfred Earls and
Jody Pickens, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

         At trial, Roy Lee Clark testified that one evening in May 2005, he arrived at the defendant’s
house. After a while, Clark left the house and went to a gas station; upon his return, Clark saw that
two other men, Roy Gardner and Raymond Thomas (the victim in this case), had arrived. Clark said
that he, the defendant, Gardner, and the victim spent fifteen to twenty minutes using cocaine before
going outside. Clark said that once outside, the victim spent “about thirty minutes” tilling in the
defendant’s flower bed before the four men went back inside to use more cocaine. During this time,
Clark and the victim sat on a loveseat in the defendant’s living room, with the defendant walking
back and forth in front of them with a pistol in his hand. Clark said that none of the other three men
had a weapon at the time of this incident. After a while, Clark heard a gunshot and then heard the
victim “hollering” and asking the defendant why he had shot him. According to Clark, the defendant
did not reply to the victim’s question. Clark said that he did not see any blood during this incident.
At some point after the shooting, the victim slumped over, with his knees on the floor and his upper
body on the couch.

        Clark testified that after the shooting, he ran to the door in an attempt to leave and get help
for the victim, who Clark said was still alive at this point, but that the defendant stood in the
doorway and refused to let him take the victim to the hospital. The three men then went outside.
According to Clark, the defendant said that “he had to finish what he had started,” and that he
“wasn’t gonna . . . let [the victim] live.” At that point, the defendant returned inside while Clark and
Gardner remained outside. Clark then heard a gunshot, after which the defendant told the other two
men to come inside. They did, and upon entering the living room Clark saw the victim with a
gunshot wound “[b]etween his shoulder and his head, by his head.” Clark said that at this point, the
defendant still had a pistol in his hand. Clark said that the evening after the shooting, he and
Gardner were at Gardner’s house when the defendant arrived. Clark asked the defendant about the
victim, and the defendant replied that the victim “was still on the couch.”

         Clark acknowledged that he was serving a sentence for aggravated assault and that he had
three prior convictions for theft of property and convictions for evading arrest and attempted
aggravated robbery. On cross-examination, Clark said that because of his daily cocaine use, he was
unable to remember the exact date or day of the week on which this incident occurred, although he
did remember that the incident occurred in the afternoon. He also said that he was unsure of the
date, or even the month, on which this trial was occurring. Clark admitted that he did not see the
defendant shoot the victim and that the defendant did not point a gun at him or Gardner. Clark also
admitted that he did not hear the defendant threaten him during the incident. Clark said that Gardner
later told him that the defendant had threatened Clark’s life, but he also admitted that Gardner was
a convicted felon. He denied that he, Gardner, and the victim entered into a plot to rob the
defendant. He said that when he, Gardner, and the defendant went outside after the shooting, he and
Gardner played basketball to avoid arousing the suspicion of the neighbors, who were in the yard
next door.

         The substance of Roy Gardner’s testimony matched much of that provided by Clark.
Gardner said that when the defendant shot the victim, he was sitting on a chair next to the loveseat
on which the victim and Clark were sitting. Gardner saw the defendant pacing in front of the
loveseat, pistol in hand, before he saw the defendant shoot the victim “in his upper body.” Gardner
asked the defendant to take the victim to the hospital, but the defendant refused. The men then went
outside, with the defendant telling Gardner that “if anything was said . . . we would be next.” After
the men went outside, the defendant told the other men that “he might as well go in there and finish
it,” at which point the defendant returned inside. Gardner then heard a gunshot.

        After the shooting, Gardner and the defendant left in the victim’s pickup truck. After visiting
a store, they returned to the defendant’s house, with Gardner dropping off the defendant and then

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driving away. Gardner drove the victim’s truck to a remote area about a mile from his house,
abandoned the truck, and ran home. Gardner said that he did not see the defendant after this
incident.

        Gardner acknowledged that he was in federal custody for a weapons offense and that he had
prior state convictions for criminal impersonation and theft. On cross-examination, Gardner said
that he could not remember the exact date on which these events occurred, other than the shooting
happened on a May afternoon. He recalled that he and the other men “smoked a lot” that day. He
recalled seeing blood on the loveseat, but he was unsure whether the victim was alive or dead when
they left the defendant’s house the first time. Unlike Clark, Gardner said that he did not see anyone
standing in the yard next door. He also had no independent knowledge of what happened to the
victim’s truck after he abandoned it, although he later learned that it was found burned.

        Regarding the police investigation, Deputy David Travis of the Madison County Sheriff’s
Department testified that on May 26, 2005, he discovered a burned-out vehicle in a field in a rural
part of Madison County. Deputy Travis said he was unable to find the vehicle’s license plate or its
Vehicle Identification Number (VIN), but he did find a vanity license plate which read “Popeye” on
the ground in front of the vehicle. Agent Jim Medlin with the Tennessee Highway Patrol (THP) said
he inspected the vehicle, which he described as a “Chevrolet or GMC truck,” at an impound lot after
it had been towed from the field. Agent Medlin was able to find the vehicle’s VIN, and after
searching vehicle records, he learned that the truck was a white 2001 Chevrolet Silverado registered
to the victim and his mother, Pat Thomas.

        Lieutenant Anthony Heavner with the Madison County Police Department testified that he
originally became involved in this case when the victim’s burned pickup truck was recovered in rural
Madison County, near the Haywood County line. Ultimately, the nature of the case turned from a
“burned vehicle” case to a missing person case. Through his investigation, Lieutenant Heavner
learned from the victim’s wife that the victim had been at his house on May 18, 2005, and he also
learned that when the victim’s vehicle was recovered May 26, nobody had reported the vehicle
stolen. Lieutenant Heavner provided the victim’s name and identifying information for the National
Crime Information Center (NCIC) database, and he also notified the National Center for Missing and
Exploited Persons about the victim’s disappearance. Lieutenant Heavner said that as of the trial date,
neither the NCIC nor the Center for Missing and Exploited Persons received any information
regarding the victim.

        Lieutenant Heavner said that he first investigated the defendant after the victim’s wife, who
knew that the victim and the defendant “hung out” and used drugs together, informed the police that
the defendant had visited her house. Thus, on June 3, 2005, Lieutenant Heavner visited the
defendant at his home in Jackson. The defendant told Lieutenant Heavner that he had not seen the
victim. On July 1, Lieutenant Heavner returned to the defendant’s home after the sheriff’s
department received an anonymous call in which the caller said that the victim’s blood could be
found in the defendant’s home. After Lieutenant Heavner informed the defendant of this
development, the defendant gave police permission to search his house. The defendant told the
officers that he was in the process of moving and that there would be little furniture in the house.
Once Lieutenant Heavner entered the living room, he saw a spot in the carpet, a spot “larger than a

                                                  3
basketball,” that appeared to be stained. Lieutenant Heavner initially believed the spot was blood,
but when he looked at the spot more closely he saw that the spot “looked like it was full of some
type of soapy material.” In fact, Lieutenant Heavner later found a bottle of Resolve brand carpet
cleaner in the house. He asked the defendant about the spot; the defendant replied that his dogs
“might have brought something into the house, some type of animal or something.” Before leaving
the defendant’s house, the lieutenant cut out the section of stained carpet, and the underlying carpet
pad, and he took a written statement from the defendant in which he denied any knowledge of the
victim’s disappearance and said that he had taken the couch to his aunt’s house.

         Lieutenant Heavner sent the carpet taken from the victim’s house to the Tennessee Bureau
of Investigation (TBI) for testing. He also sent DNA samples from the victim’s wife and children,
as well as a sample taken from the victim’s razor, to the TBI lab. On August 1, 2005, he again spoke
with the defendant, this time in police custody. After being informed of and waiving his Miranda
rights, the defendant gave a written statement to police. In the statement, the defendant said that the
victim, whom he called “Popeye,” came to his house along with Gardner and Clark. The defendant
said that he had been “smoking crack non-stop . . . and was high when they came by” and did drugs
with the other men before going to another part of the house. The defendant claimed that while he
was away from the other men, he heard a gunshot. When he returned to the living room, he saw the
victim lying on the floor, with Gardner and Clark standing over him. The defendant said that he did
not see any blood at the time but recalled that the victim came to rest on the section of carpet that
Lieutenant Heavner removed. The defendant said that Gardner and Clark then “put Popeye in his
truck and took him away. I don’t know where they took him or if he was dead at that point.” The
defendant insisted that the two men did not tell him what they did with the victim or his truck.

         On September 1, after he had taken a statement from Gardner implicating the defendant in
the victim’s death, Lieutenant Heavner again interviewed the defendant. After waiving his Miranda
rights, the defendant gave a statement in which he admitted shooting the victim. In the statement,
the defendant claimed that he, the victim, Gardner, and Clark were doing drugs at his house when
he became suspicious about their behavior and about the fact that they were carrying screwdrivers
and knives. He also claimed that he heard voices in his head because of his drug use. At some point,
the defendant “got paranoid” and became fearful that the other men would “do bodily harm to me,
kill and rob me because I had drugs.” Thus, he shot the victim in the head. The defendant said that
he walked around for a while before shooting the victim again, this time in the chest. He said that
the victim slumped onto the couch, with the victim’s blood soaking through the couch so that a
section of carpet underneath the couch became blood-soaked. The defendant claimed that Gardner
drove away in the victim’s truck and that he never saw the victim’s truck again. The defendant said
that later, he wrapped the victim’s body in a tarp, wrapped a chain around the body, ran the chain
through some concrete blocks, drove to a bridge over the Forked Deer River in Westover, and
dumped the body into the river. The defendant also said that he threw the gun he used to shoot the
defendant, a .40 caliber Ruger 94, into the river.

       The defendant led police to a dump where he had left the couch on which the victim was
shot. Lieutenant Heavner said that areas on the couch’s seat cushions and arm appeared to be soaked
with blood. He sent fabric samples from the couch to the TBI lab for testing. The lieutenant
observed that the couch appeared to be weather-beaten. In his statement, the defendant said that he

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“had to get rid of” the couch because it had blood on it. The defendant also admitted cleaning the
carpet with Resolve brand carpet cleaner in an attempt to remove the blood stains.

         The day of his statement, the defendant led police to the bridge from which he claimed to
have dumped the body. Lieutenant Heavner said that on September 1, 2005, the Forked Deer River
“was about to overflow its banks” and that the river’s current was much swifter than usual because
of Hurricane Katrina, which made landfall along the Mississippi Gulf Coast on August 29. Thus,
neither the police nor the Madison County Fire Department’s rescue squad attempted to search the
river that day. On September 2, the fire department attempted to search the river using drag lines,
but the river’s current made such a search impossible. The fire department searched the river on
September 6, and the police searched the river on September 9, but those searches produced nothing
either time. The police also conducted an aerial search, but that search also produced nothing of
evidentiary value.

         On cross-examination, Lieutenant Heavner said that while he was certain that the victim’s
wife had reported that the victim had been in her home on May 18 and that the victim’s truck was
found on May 26, he was unsure of the exact date on which the victim was killed. He also said that
he did not recover any shell casings from the couch or the defendant’s home, nor did he see any
bullet holes in the couch or in the wall or floor of the defendant’s home. He did note, however, that
the couch had several tears on it, which he attributed to the couch’s being “outside in the elements.”
Lieutenant Heavner said that he only had the couch tested for blood, not gunpowder residue, noting
that in his law enforcement experience he had never dealt with evidence of stipling on anything other
than the human body. Furthermore, he said that the fact that the couch had been in the elements
made it unclear whether there would be any gunpowder residue on the couch.

        Sergeant Felicia Stacy with the Madison County Sheriff’s Department testified that she was
present on September 9, 2005, when THP divers searched the river near the spot where the defendant
claimed to have dumped the victim’s body. She said that the divers found two concrete blocks
attached by a chain, with the manner in which the chain was run through the blocks consistent with
the defendant’s description. However, on cross-examination she admitted that the divers recovered
no clothing items and that there was nothing to conclude with any certainty that the blocks and chain
had been used to weigh down a body. Sergeant Stacy testified that she investigated the victim’s
financial records and discovered that the victim had not accessed any of his accounts since May
2005.

        TBI Agent Donna Nelson testified that she tested the sections of carpet and couch fabric
collected in connection with this case. She said that while both the carpet and the couch fabric tested
positive for human blood, she was unable to obtain a DNA profile from either sample. She said that
the carpet’s being cleaned with detergent and the couch’s being left in the elements could have
caused the DNA present in the blood to degrade.

       Three members of the victim’s family—his widow, Candice Thomas; his seven-year-old son,
Dalton Thomas; and his mother, Pat Thomas—testified that they had not seen the victim since May
2005 and that they loved him and missed him. Specifically, Candice Thomas testified that she last
saw the defendant on May 14, 2005, although she said that her husband had been in the family home

                                                  5
on May 18. She said she knew her husband had been in the home that day because some of her
belongings had been disturbed. She said that she had monitored her financial records since May
2005 and that there was no indication that her husband had accessed the accounts during that time.
She said she knew her husband had a drug problem and that he was occasionally away from the
home, but he was never gone more than a week at a time. She said that she was not concerned about
her husband’s disappearance until his truck, which the victim considered his “pride any joy,” was
discovered burned. She said that her husband was known as “Popeye” and that he kept a vanity
license plate which read “Popeye” on the front of his truck. The victim’s widow said that the
defendant had visited her house after the victim “went missing” but before his truck was discovered.
She recalled that the defendant asked her “if [she] had heard anything,” to which she replied she had
not.

        At the close of the State’s proof, the parties stipulated that the victim had not been treated
at any of eight major West Tennessee hospitals since his disappearance.

        The defendant’s only witness, William Merriman, testified that on May 24, 2005, he saw the
victim, whom he had known since at least 1975, at a gas station. Merriman said that the victim told
him that the two men should take a vacation. Merriman did not recall where the victim wanted to
go on vacation.

       After receiving the evidence, the jury convicted the defendant of one count of first degree
murder and one count of evidence tampering as charged in the indictment. The defendant
subsequently filed a timely notice of appeal.

                                            ANALYSIS

        The defendant argues that the evidence produced at trial was insufficient to support his
convictions for first degree murder and tampering with evidence. In raising this argument, the
defendant asserts that: (1) the jury’s verdict was based in part on “highly prejudicial and completely
irrelevant” testimony from the victim’s family; (2) the evidence of the defendant’s guilt was
established largely through the unreliable testimony of two men who were both convicted felons and
admitted drug addicts; and (3) the defendant’s testimony, in which he said he shot the victim in self-
defense while under the influence of cocaine and while being told to do so by voices in his head,
established reasonable doubt. We disagree.

        An appellate court’s standard of review when the defendant questions the sufficiency of the
evidence on appeal is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (emphasis
in original). The appellate 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. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). A guilty verdict removes the presumption of innocence and replaces it with
                                                  6
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 (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).

                                  First Degree Murder Conviction

       A conviction for first degree premeditated murder requires proof that the defendant
committed a “premeditated and intentional killing.” Tenn. Code Ann. § 39-13-202(a)(1). The first
degree murder statute explains the term “premeditation” as follows:

       “[P]remeditation” is an act done after the exercise of reflection and judgment.
       “Premeditation” means that the intent to kill must have been formed prior to the act
       itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused
       for any definite period of time. The mental state of the accused at the time the
       accused allegedly decided to kill must be carefully considered in order to determine
       whether the accused was sufficiently free from excitement and passion as to be
       capable of premeditation.

Id. § 39-13-202(d). The presence of premeditation is a question for the jury and may be established
by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d at 660. Our supreme
court has held that factors demonstrating the existence of premeditation include, but are not limited
to, the following: the use of a deadly weapon upon an unarmed victim, the particular cruelty of the
killing, declarations by the defendant of an intent to kill, evidence of procurement of a weapon,
preparations before the killing for concealment of the crime, destruction or secretion of evidence of
the killing, and calmness immediately after the killing. See State v. Davidson, 121 S.W.3d 600, 614
(Tenn. 2003); Bland, 958 S.W.2d at 660. Additional factors cited by this court from which a jury
may infer premeditation include lack of provocation by the victim and the defendant’s failure to
render aid to the victim. See State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000).

        The victim’s body was never recovered; however, “[t]he failure to recover a victim’s body
should not be fatal to the prosecution of a homicide. Requiring a body would afford absolute
immunity to defendants who are cunning enough to destroy the body or otherwise conceal its
identity.” State v. Kenneth Patterson (Pat) Bondurant, No. 01C01-9501-CC-00023, 1996 WL
275021, at *4 (Tenn. Crim. App. May 24, 1996). “Two elements make up the corpus deliciti in a
homicide case: (1) the death of a human being; and (2) criminal agency in producing that death.”
State v. Driver, 634 S.W.2d 601, 605 (Tenn. Crim. App. 1981). The State is required to prove these
elements beyond a reasonable doubt, see State v. Shepherd, 902 S.W.2d 895, 901 (Tenn. 1995), but
proof of these elements may be established through circumstantial evidence, see Driver, 634 S.W.2d
at 606. Regardless of the manner of evidence used to establish the elements of the offense beyond
a reasonable doubt, “[i]n homicide prosecutions it must be proved that the death was not occasioned
by natural causes, by accident, or by the deceased person.” Shepherd, 902 S.W.2d at 901(citing
Davis v. State, 445 S.W.2d 933, 935 (Tenn. Crim. App. 1969)).

                                                  7
        In this case, the defendant admitted to killing the victim and dumping his body in a river after
committing the offense. Gardner and Clark, the other two men present at the defendant’s house at
the time of the offense, both testified that they saw the defendant shoot the unarmed victim before
they went outside, and once outside they heard the defendant announce that he had to “finish what
he had started.” They saw the defendant return to the house, and a short time later they heard another
gunshot. Once Gardner and Clark reentered the house, they saw the defendant slumped motionless
on the couch. The defendant admitted to police that he cleaned the carpet and dumped the couch on
which the victim was shot, and the police recovered both a section of the defendant’s bloody carpet
that had been cleaned with detergent and the couch, which was left outside in a remote dump. The
police also recovered concrete blocks and a chain in the river near the spot where the defendant
admitted dumping the victim’s body. Finally, the victim’s family testified that they had not seen the
victim since he disappeared, and the evidence also showed that the defendant had not accessed his
financial accounts or been treated at any West Tennessee hospital after the incident. Thus, despite
the fact that the victim’s body was not recovered, the evidence produced at trial was sufficient to
establish the elements of first degree premeditated murder beyond a reasonable doubt.

        In concluding that the evidence was sufficient to convict the defendant of first degree murder,
we are unpersuaded by the defendant’s assertions outlined above. Regarding the testimony of the
victim’s family members, all of whom testified that they had not seen the defendant since his
disappearance and that they greatly loved and missed the victim, the defendant did not object to this
testimony at trial. A party’s failure to make a contemporaneous objection to trial testimony typically
results in a waiver of the issue on appeal. Tenn. R. App. P. 36(a); State v. Thompson, 36 S.W.3d
102, 108 (Tenn. Crim. App. 2000). Furthermore, even if not waived, the defendant’s contention
would be without merit. The victim’s body was not recovered, so the testimony from the victim’s
family members was relevant in establishing that the victim was no longer alive. Regarding the
testimony of Clark and Gardner, the jury was made aware of the witnesses’ criminal histories and
their drug use and still chose to accredit the witnesses’ accounts of the victim’s death. Such was
within the jury’s province as trier of fact. Furthermore, while the defendant’s statement to police,
in which he claimed that he killed the victim in self-defense and that he was high on cocaine at the
time of the killing, was introduced into evidence, and while the jury was given instructions on
voluntary intoxication and self-defense, the jury chose to discredit the defendant’s theories. Such
was also the jury’s prerogative as factfinder. Accordingly, we deny the defendant relief on this issue.

                                Tampering With Evidence Conviction

         The defendant was also convicted of tampering with evidence. Tennessee law states that it
is “unlawful for any person, knowing that an investigation or official proceeding is pending or in
progress, to . . . [a]lter, destroy, or conceal any record, document or thing with intent to impair its
verity, legibility, or availability as evidence in the investigation or official proceeding . . . .” Tenn.
Code Ann. § 39-16-503(a)(1). In this case, the defendant admitted that after killing the victim, he
wrapped the victim’s body in a tarp, weighed down the body with concrete blocks tied together with
a chain, and dumped the victim’s body and the gun he used to kill the victim into a Madison County
river. The police did not recover the defendant’s gun or the victim’s body, but they did recover two
concrete blocks and a chain in the river near where the defendant said he dumped the body.

                                                    8
Furthermore, the defendant admitted to cleaning his blood-soaked carpet and dumping the couch on
which the victim was shot. Lieutenant Heavner testified that on July 1, 2005,1 over a month after
he initially spoke with the defendant, he saw a section of carpet in the defendant’s house that
appeared to contain both blood and detergent; the officer also saw a container of the same brand of
carpet cleaner the defendant later admitted using to clean the carpet. When the defendant led police
to the couch on September 1, it was weather-beaten. A TBI agent testified that the bloody carpet and
couch’s exposure to detergent and the elements, respectively, could have led to the degrading of the
DNA profiles in the blood samples taken from the fabric. This evidence was sufficient to convict
the defendant of tampering with evidence; as such, we deny him relief on this issue.

                                                 CONCLUSION


        In consideration of the foregoing and the record as a whole, the judgments of the trial court
are affirmed.


                                                                _______________________________
                                                                D. KELLY THOMAS, JR., JUDGE




         1
           The July 1 date on which Lieutenant Heavner observed the defendant’s carpet falls outside the period alleged
in the indictment, which was “on or about May 18 through M ay 26 of 2005.” However, this court has observed that “[a]
variance between an indictment . . . and the evidence presented at trial is not fatal unless it is both material and
prejudicial.” State v. Shropshire, 45 S.W .3d 64, 71 (Tenn. Crim. App. 2000) (citing State v. M oss, 662 S.W .2d 590,
592 (Tenn. 1984)). The defendant was sufficiently aware of the evidence tampering charge and was able to adequately
prepare for it, so no prejudice resulted to the defendant. See Moss, 662 S.W .2d at 592.

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