                                                                                        06/12/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs March 20, 2019

              STATE OF TENNESSEE v. DEMETRIUS BAILEY

                Appeal from the Criminal Court for Davidson County
                    No. 2015-B-1336 Mark J. Fishburn, Judge
                     ___________________________________

                           No. M2018-00018-CCA-R3-CD
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A Davidson County grand jury indicted the defendant, Demetrius Bailey, with one count
of aggravated burglary, one count of employing a firearm during the commission of a
dangerous felony, two counts of aggravated robbery, and one count of aggravated assault.
Following trial, a jury found the defendant guilty of all counts, and the trial court
imposed an effective sentence of eighteen years. On appeal, the defendant challenges the
trial court’s evidentiary rulings allowing the admission of a Kal-Tec .380 pistol. After
reviewing the record and considering the applicable law, we affirm the judgments of the
trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER, JJ., joined.

Ben Powers, Nashville, Tennessee, for the appellant, Demetrius Bailey.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Glenn Funk, District Attorney General; and Vince Wyatt, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

        At approximately 2:00 a.m. on October 1, 2014, Officer Steven Smith pulled over
a silver 2007 Kia Sorento due to a broken taillight on the driver’s side. The occupants of
the vehicle were searched, and three of the occupants, Ebony Hayes, Donald Edmonds,
and Roxanna Marhami, were taken into custody. The defendant, however, was not taken
into custody during the traffic stop and was left in possession of the vehicle. While
Officer Smith was completing his arrest paperwork, he allowed the defendant and Ms.
Hayes to communicate through the window of the squad car. During this conversation,
the defendant and Ms. Hayes referred to each other as boyfriend and girlfriend, and Ms.
Hayes told the defendant to “get [her] out.”

       That afternoon, the defendant picked up Arianna Arrendo-Brown1 and Jillian
Harris in the silver SUV. The defendant wanted to get Ms. Hayes out of jail but needed
cash. Ms. Hayes called the defendant from jail and told him to “pick some money up
from her boss man,” Mr. Nidal “Ali” Naser. Mr. Naser rented kitchen space inside
Jerry’s Market, a convenience store, and Ms. Hayes had recently worked with him prior
to being fired. The defendant knew Mr. Naser was paid in cash each night and
formulated a plan to rob him at his house. Ms. Arrendo-Brown and Ms. Harris’s role was
to “keep Ali talking.” They picked up a friend of the defendant to assist with the robbery
and drove to Jerry’s Market. There, the defendant spoke with an employee who was
sweeping the parking lot and asked “where Ali was.”

        After leaving Jerry’s Market, they drove to Mr. Naser’s house and parked “a small
distance away.” Mr. Naser, who lived in a boarding house with several other people, was
sitting on his back porch with one of his roommates, Ali “Marco” Nowalish. Ms.
Arrendo-Brown and Ms. Harris walked to the back of the house and asked Mr. Naser and
Mr. Nowalish “where Ali was.” The women said Ali had given them his phone number.
When Mr. Naser denied knowing the two women, they told him they were “friends with
Ebony.” Suddenly, the defendant and the other man came around the corner with
handkerchiefs covering the lower half of their faces. The defendant was holding a gun
and demanded money, forcing Mr. Naser and Mr. Nowalish inside the house.

        Once inside, the defendant began kicking down doors in an attempt to find money.
Anastacio Primevo was sleeping in his room when he heard noises on the other side of
the door. The defendant kicked the bedroom door in and began demanding money. After
telling the defendant that he did not have any money, Mr. Primevo ran out of the house.
Catrino Luis Lopez was in the bathroom at the time and heard someone screaming inside
the house. Someone began hitting the door, telling Mr. Lopez to get out of the bathroom.
However, when Mr. Lopez finally opened the door, the person had left.

      Jose Luis Lazo, the owner of the house, was sitting in his room when he heard
someone screaming in the kitchen. He opened the bedroom door and saw the defendant
holding a gun to Mr. Naser’s head. The defendant asked Mr. Naser where the owner of

      1
         Ms. Arrendo-Brown is also referred to as Ariana Angel Arreandondo Brown and
Arianna Arredondo-Brown throughout the record.
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the house was and began walking toward Mr. Lazo’s room. Mr. Lazo closed the door,
and the defendant “started knocking on the door very hard.” When Mr. Lazo realized the
defendant was going to knock the door down, he ran out of the house through the front
door, which was located inside Mr. Lazo’s bedroom. There were several men standing
across the street, and Mr. Lazo asked them to call 911. As Mr. Lazo stood across the
street, he saw the defendant enter his bedroom and look outside.

      The defendant, Ms. Arrendo-Brown, Ms. Harris, and the other man fled the house
through the back door and drove away in the silver SUV. After leaving the house, they
discovered they had only stolen ten dollars, four cigarettes, and a cell phone. The
defendant told Ms. Harris to wipe the cell phone off with her shirt and throw it out the
window.

       Detective Matthew Filter with the Metro Nashville Police Department responded
to the scene and interviewed Mr. Naser. During the interview, Mr. Naser described the
suspects as two overweight black females and two black males “in their early twenties
and one was described as being taller than the other.” The taller suspect was holding a
“small,” “dark” gun. Due to the cash-only nature of his business, Mr. Naser believed he
was targeted by someone who knew him. As he was investigating the area where the
suspects’ car was parked, Detective Filter observed a beer bottle on the side of the road
and requested the bottle be checked for fingerprints. Testing by the Metro Nashville
Police Department Crime Lab later confirmed the fingerprints on the bottle belonged Ms.
Arrendo-Brown.

        The next day, when Mr. Naser arrived at work, an employee approached him and
told him “Ebony’s boyfriend” was at the market last night with “a guy [] and two girls,”
looking for him. When Mr. Naser heard this information, “things start[ed] clicking,” and
he realized the man who had held the gun during the robbery was the boyfriend of Ms.
Hayes. Although he did not know the defendant by name, when Ms. Hayes worked with
Mr. Naser, the defendant would often sit in a booth at the store, waiting for Ms. Hayes’s
shift to end. After this realization, Mr. Naser contacted Detective William Bolen and
later confirmed the defendant’s identity through a photo line-up.

      Detective Bolan obtained surveillance footage from Jerry’s Market from the night
of the robbery. This footage showed a silver SUV enter the parking lot, stay for
approximately five minutes, and leave in the direction of Mr. Naser’s house. However,
because the incident occurred at night, there was little ambient lighting near the
convenience store, and the video quality was poor, Detective Bolan was unable to
determine if anyone exited or approached the vehicle.



                                          -3-
       Approximately three weeks after the robbery, Officer Steven Weir with the Metro
Nashville Police Department spotted the defendant drinking a beer on a bench in a public
housing development. Because the development had a no trespassing policy, Officer
Weir asked the defendant if he lived on the property or was visiting someone. Officer
Weir then asked the defendant for consent to search his person, which the defendant
granted by standing up and placing his arms in the air. During the search, Officer Weir
discovered a Kel-Tech .380 handgun in the defendant’s pants. The defendant stated he
obtained the gun in September 2014, after he observed someone throw it in some bushes.

        Following deliberations, the jury found the defendant guilty on all counts, and the
trial court imposed an effective sentence of eighteen years. This appeal followed.

                                         Analysis

       On appeal, the defendant argues the trial court erred in admitting both the Kel-Tec
.380 pistol and testimony regarding the circumstances of its discovery. The State
contends the defendant has waived all issues except sufficiency of the evidence by failing
to timely file a motion for new trial. Additionally, the State contends the issues raised on
appeal are not subject to plain error review because the trial court did not breach a clear
and unequivocal rule of law. We agree with the State.

I.     Waiver

       First, we must address the State’s contention that the defendant has waived the
issues presented on appeal because he failed to timely file his motion for new trial. “A
motion for new trial shall be in writing or, if made orally in open court, be reduced to
writing, within thirty days of the date the order of sentence is entered.” Tenn. R. Crim. P.
33(b). The thirty-day time limit for filing a motion for new trial is jurisdictional, and an
untimely motion for new trial “is a nullity.” State v. Dodson, 780 S.W.2d 778, 780
(Tenn. Crim. App. 1989). “A trial judge does not have jurisdiction to hear and determine
the merits of a motion for new trial which has not been timely filed.” State v. Bough, 152
S.W.3d 453, 460 (Tenn. 2004).

       Failure to timely file a motion for new trial waives plenary review of all issues
“except for sufficiency of [the] evidence and sentencing.” Id. In addition, a notice of
appeal must be filed “within [thirty] days after the date of entry of the judgment appealed
from.” Tenn. R. App. P. 4(a). This period is not tolled by the filing of an untimely
motion for new trial. State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987).
Although this Court may waive the untimely filing of a notice of appeal, we do not have
the authority to waive the untimely filing of a motion for new trial. State v. Stephens, 264
S.W.3d 719, 728 (Tenn. Crim. App. 2007).
                                           -4-
       Here, the judgment was entered on May 1, 2017, and, therefore, the motion for
new trial was due by May 31, 2017. However, a review of the record shows the
defendant’s motion for new trial was not filed until June 7, 2017. A hearing on the
motion for new trial was held on December 7, 2017, and was orally overruled that day.
However, as previously discussed, the trial judge did not have jurisdiction to hear the
untimely motion for new trial. Accordingly, all issues have been waived except for
sufficiency of the evidence. Because the defendant has raised only evidentiary issues on
appeal, we will review them solely for plain error.

       Additionally, although not argued by the State, the time for filing a notice of
appeal was not tolled by the late-filed motion for new trial. Although the notice of appeal
was filed within thirty days of the trial court’s ruling on the motion for new trial, the
notice of appeal was due on May 31, 2017. However, this Court has the discretion to
waive the timely filing of a notice of appeal, and we choose to do so in this case. See
Tenn. R. App. P. 4(a).

II.    Plain Error Review

       Before an error may be recognized, it “must be ‘plain’ and it must affect a
‘substantial right’ of the accused.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim.
App. 1994). “An error would have to [be] especially egregious in nature, striking at the
very heart of the fairness of the judicial proceeding, to rise to the level of plain error.”
State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006). In State v. Smith, our Supreme Court
adopted Adkisson’s five-factor test for determining whether an error should be recognized
as plain:

       (a) The record must clearly establish what occurred in the trial court;

       (b) A clear and unequivocal rule of law must have been breached;

       (c) A substantial right of the accused must have been adversely affected;

       (d) The accused did not waive the issue for tactical reasons; and

       (e) Consideration of the error is “necessary to do substantial justice.”

24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll
five factors must be established by the record before this Court will recognize the
existence of plain error, and complete consideration of all the factors is not necessary
when it is clear from the record that at least one of the factors cannot be established.” Id.
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at 283. Moreover, we note that “rarely will plain error review extend to an evidentiary
issue.” State v. Jonathan Mitchell Grimes, No. W2014-00786-CCA-R3-CD, 2015 WL
3929694, at *10 (Tenn. Crim. App. June 26, 2015) (quoting State v. Ricky E. Scoville,
No. M2006-01684-CCA-R3-CD, 2007 WL 2600450, at *2 (Tenn. Crim. App. Sept. 11,
2007).

A.     Kel-Tec .380 Pistol

       The defendant argues the trial court erred in allowing the admission of the Kel-Tec
.380 pistol during trial. Specifically, he argues the gun is not relevant, and any probative
value is outweighed by the danger of unfair prejudice.

       Tennessee Rule of Evidence 401 provides that “‘[r]elevant evidence’ means
evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without
the evidence.” Tenn. R. Evid. 401. Relevant evidence is typically admissible, while
irrelevant evidence is inadmissible. Tenn. R. Evid. 402. “Generally, the admissibility of
evidence rests within the trial court’s sound discretion, and the appellate court does not
interfere with the exercise of that discretion unless a clear abuse appears on the face of
the record.” State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing Lewis, 235
S.W.3d at 141). This Court finds an abuse of that discretion when the trial court applies
“an incorrect legal standard or reaches a conclusion that is ‘illogical or unreasonable and
causes an injustice to the party complaining.’” Lewis, 235 S.W.3d at 141 (quoting State
v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

        Here, Mr. Naser described the gun used during the robbery as “small,” “dark,” and
“not silver.” The State then introduced a Kel-Tec .380 pistol, which was discovered in
the defendant’s possession three weeks after the robbery, during the testimony of Officer
Weir. Following the admission of the gun, several other witnesses described the gun’s
appearance. Ms. Arrendo-Brown testified the defendant used an “all black” gun that was
“on the small side.” However, Ms. Harris believed the gun used during the robbery was
silver, and Detective Bolan agreed that his report described the gun as black and silver.

       Based on the foregoing, the defendant has failed to show that a clear and
unequivocal rule of law was breached. Smith, 24 S.W.3d at 282-83. The Kel-Tec .380
was similar in both size and color to the gun described by Mr. Naser, who testified prior
to the gun’s admission. Therefore, the gun was relevant and highly probative regarding
the defendant’s identity as the perpetrator of the robbery. In addition, after the gun was
admitted, the trial court addressed any unfair prejudice by providing the following
limiting instruction:

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       Members of the jury, the fact that the defendant was found in possession of
       a weapon on October 22nd, 2014, cannot be considered by you as evidence
       that he has the propensity to commit the type of crimes for which he is on
       trial today. You can only consider it as circumstantial evidence as to
       whether or not he had access to a weapon on October 1st of 2014, not that
       he necessarily committed any crime, just from the possession of the
       weapon. It's just circumstantial evidence to weigh, consider with all the
       other evidence in the case and you'll give it what weight you think is
       deemed appropriate.

Accordingly, we conclude the trial court did not abuse its discretion in admitting the gun
at trial, and the defendant is not entitled to relief under plain error review.

B.     Testimony of Officer Weir

       Similarly, the defendant argues Officer Weir’s testimony that the defendant was in
possession of a Kel-Tec .380 pistol on October 22, 2014, was irrelevant, and the
probative value of his testimony was outweighed by the danger of unfair prejudice. The
defendant notes he was found in possession of the gun “roughly three weeks after the
home invasion occurred.” The State contends the trial court properly admitted the
evidence because it was probative as to the identity of the perpetrator, and the mere
possession of a handgun does not constitute a bad act.

        At trial, outside of the jury’s presence, the defendant objected to the introduction
of testimony by Officer Weir regarding the defendant’s arrest for unlawful possession of
a weapon. The defendant argued the jury would “assume” he has a propensity to commit
crimes with a weapon based on this evidence. The trial court ruled the evidence was
admissible, but prohibited the State from mentioning the defendant was a convicted felon
at the time of the arrest. Additionally, the trial court instructed the jury that they were
prohibited from concluding the defendant had the propensity to commit a crime with a
weapon based on Officer Weir’s testimony.

       Officer Weir testified he was patrolling the area near a public housing community
on October 22, 2014, when he noticed the defendant sitting on a bench, drinking a beer.
Because the community had a no trespassing policy, Officer Weir approached the
defendant and asked if he lived there or if he was visiting someone. While another
officer verified the defendant’s assertion that he was visiting a friend, Officer Weir asked
for permission to search the defendant, which the defendant granted. During the search,
Officer Weir discovered a Kel-Tec .380 pistol in the defendant’s waistband. The
defendant told Officer Weir that he found the gun in September 2014.

                                           -7-
        Based on the foregoing, the defendant has failed to show that a clear and
unequivocal rule of law was breached. Smith, 24 S.W.3d at 282-83. The testimony that
the defendant possessed a gun in the weeks following the robbery that could possibly
have been the weapon used was not improperly admitted to establish propensity. The
evidence was directly relevant because it was especially probative as to the identity of the
perpetrator. Additionally, the trial court addressed any unfair prejudice by prohibiting the
State from eliciting testimony that the defendant was a convicted felon and by providing
a limiting instruction following Officer Weir’s testimony. The trial court did not abuse
its discretion in admitting the evidence, and the defendant is not entitled to relief on this
issue.

C.     Cumulative Error

       Finally, the defendant contends the cumulative effect of the trial court’s alleged
evidentiary errors requires a new trial. We discern no error by the trial court. Therefore,
the defendant’s argument is without merit.

                                        Conclusion

       Based upon the foregoing authorities and reasoning, the judgments of the trial
court are affirmed.




                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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