        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 18, 2013

                STATE OF TENNESSEE v. JAMES ALLEN NIX

                  Appeal from the Criminal Court for Sumner County
                       No. 2011-408    Dee David Gay, Judge


               No. M2012-02457-CCA-R3-CD - Filed December 18, 2013


The defendant, James Allen Nix, was convicted by a Sumner County Criminal Court jury of
burglary of a building other than a habitation and theft of property valued at $1000 to
$10,000, both Class D felonies, and was sentenced by the trial court as a Range III, multiple
offender to concurrent terms of eight years in the Department of Correction. On appeal, he
raises three issues relating to the trial court’s denial of his motion to suppress evidence
obtained from his home pursuant to a search warrant. The State argues that the defendant
has waived consideration of these issues by his failure to include them in his motion for new
trial. We agree with the State. Accordingly, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J EFFREY S. B IVINS, J., joined.

Terry S. Frizzell, Hendersonville, Tennessee (on appeal); and Jon J. Tucci, Nashville,
Tennessee (at trial), for the appellant, James Allen Nix.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant
Attorney General; Lawrence R. Whitley, District Attorney General; and Lytle Anthony
James, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                        FACTS and PROCEDURAL HISTORY

       On June 9, 2011, the Sumner County Grand Jury returned a five-count indictment
charging the defendant with a February 27, 2011 burglary of a motor vehicle; a February 27,
2011 theft of property valued at $500 or less; an April 9, 2011 burglary of a building other
than a habitation; an April 9, 2011 theft of property valued at $1000 or more; and an April
14, 2011 theft of property valued at $1000 or more. The defendant filed both a motion to
sever the offenses and a motion to suppress evidence recovered from his home pursuant to
a search warrant. In the motion to suppress, he alleged that the police unlawfully entered his
home following his arrest outside the home and that they improperly seized a camera
containing a recording that was subsequently used as the basis for establishing probable
cause for a later-obtained search warrant.

       At the evidentiary hearing, the State presented the following pertinent evidence: the
defendant and a male companion were involved in a traffic accident in the defendant’s
vehicle on April 9, 2011; both men left the scene of the accident, leaving behind in the
vehicle merchandise that had been taken in a recent burglary; the defendant was on state
probation at the time and had signed a consent for his person, vehicle, or residence to be
searched by any probation or law enforcement officer at any time without a warrant; the
defendant was served with a felony arrest warrant at the door of his residence on April 12,
2011; at the time of the arrest officers found in the defendant’s house a number of electronic
items and other items matching the descriptions of stolen merchandise, including a camera
that contained a recording made at the defendant’s home in which the defendant’s companion
bragged about a big burglary they had committed.

       On February 10, 2012, the trial court entered an order denying the motion to suppress,
finding that the officers’ entering the residence at the time of the defendant’s arrest and their
seizing of the items on which probable cause for the search warrant was based constituted
“lawful and constitutionally permissible actions.” That same day, the trial court entered a
separate order severing the counts of the indictment that were based on separate offense
dates. On May 29, 2012, the defendant was tried before a Sumner County jury on the two
counts of the indictment based on the April 9, 2011 offenses and was convicted as charged.
On July 13, 2012, he was sentenced by the trial court as a Range III offender to concurrent
terms of eight years for each offense.

        On August 16, 2012, the defendant filed a timely motion for a new trial in which he
raised only three issues, none of which involved the searches of his home. A hearing on the
motion for new trial was held on September 28, 2012, at which the defendant, again, failed
to raise any issues relating to the searches of his home. On October 9, 2012, the trial court
entered an order overruling the motion for new trial. Thereafter, the defendant filed a timely
appeal to this court in which he raises three issues: (1) whether the trial court erred in
denying the motion to suppress when the search warrant lacked “independent and verified
probable cause”; (2) whether the trial court erred in allowing the defendant’s medical records
to be introduced at trial when the records were seized pursuant to an unlawful search warrant;
and (3) whether the seizure of the medical records fell outside the scope of items named in


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the search warrant.

                                        ANALYSIS

       The State argues that the defendant has waived consideration of the issues raised in
his appeal by his failure to raise them in the motion for new trial. We agree. Issues relating
to the admission or exclusion of evidence that are not raised in a motion for new trial are
deemed to be waived on appeal. See Tenn. R. App. P. 3(e). Accordingly, we conclude that
the defendant has waived consideration of these issues on appeal. We also decline to address
the issues as plain error, as we conclude that no substantial rights of the defendant were
affected.

                                      CONCLUSION

        Because the defendant failed to raise any issues relating to the searches of his home
in his motion for new trial, we conclude that he has waived appellate review of the issues
raised in this appeal. Accordingly, we affirm the judgments of the trial court.




                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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