        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on briefs May 15, 2012

         STATE OF TENNESSEE v. REGINALD DEWAYNE TERRY

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2005-C-2496     Mark J. Fishburn, Judge




               No. M2011-01891-CCA-R3-CD - Filed November 19, 2012


Defendant, Reginald Dewayne Terry, was indicted by the Davidson County Grand Jury in
a two-count indictment for aggravated burglary with intent to commit theft and with intent
to commit assault. Defendant was convicted by a jury of the count of aggravated burglary
with intent to commit theft and sentenced by the trial court to 15 years confinement.
Defendant appeals his conviction and asserts that: 1) the trial court erred by denying his
motion to suppress the victim’s identification of Defendant in a photographic lineup; 2) the
trial court erred by allowing Detective Gerald McShepard to testify that the photo of
Defendant used in the photo lineup was a booking photo because such testimony was more
prejudicial than probative; 3) the trial court erred by refusing to allow Defendant to cross-
examine the victim about her failure to appear at a prior court date; 4) the trial court erred by
allowing Detective McShepard to give a lay opinion regarding fingerprint evidence; and 5)
the evidence is insufficient to sustain his conviction for aggravated burglary. After a careful
review of the record, we conclude that the trial court erred by ruling that the victim’s refusal
to appear at the originally scheduled trial date was not relevant to her credibility as a witness.
Therefore, we reverse the judgment of the trial court and remand this case for a new trial.

                       Tenn. R. App. P. 3 Appeal as of Right;
               Judgment of the Criminal Court Reversed and Remanded

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE,
J., joined. J OSEPH M. T IPTON, PJ., concurs in results.

James O. Martin, III, Nashville, Tennessee, (on appeal), and Joshua Brand, Nashville,
Tennessee, (at trial), for the appellant, Reginald Dewayne Terry.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Robert McGuire,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

Motion to suppress photo lineup

       At a hearing on Defendant’s motion to suppress the photo lineup, Detective Gerald
McShepard, of the Metropolitan Nashville Police Department, testified that in May, 2005,
he was assigned to investigate an aggravated burglary in which the victim was Kimberly
Scales. Detective McShepard testified Defendant was developed as a suspect based on
information provided by the victim about Defendant’s physical appearance. He obtained a
photo of Defendant from a database of booking photos and compiled a photo lineup with
random computer generated booking photos of other individuals with similar physical
characteristics. Detective McShepard testified that the background in Defendant’s photo was
white because it was taken after renovations to the booking area of the Davidson County
Sheriff’s Office. The background colors in the other photos were different than the
background color in Defendant’s photo, but there were also some differences among the
other photos. Detective McShepard told Ms. Scales that there was no significance in the
order in which the photographs appeared and instructed her to identify a person only if she
was “a hundred percent certain that that is the person [who] committed the offense.” After
viewing the photo lineup, Ms. Scales identified Defendant as the person who committed the
offense.
Trial

        The victim, Kimberly Scales, testified that in May, 2005, she lived in an apartment on
Avondale Circle with her six-year-old son and her roommate. In the early morning hours of
May 6, 2005, she was lying on the couch in the living room. Her son was asleep in the
bedroom. Ms. Scales had fallen asleep on the couch before she heard her son call out for her.
She jumped up and began to run to him. She testified that as she passed by the kitchen, she
noticed that the back door was open. There was a black male standing beside the stove,
reaching to turn off the light above the stove. She asked who he was and what he was doing
in her house, and she picked up a chair to defend herself. She asked again who he was, and
he ran out of the house. She testified that he did not make any movements towards her.

        Ms. Scales testified that the intruder was wearing a dark-colored hooded sweatshirt
and blue jeans. The outside floodlights were on as well as the range hood light, and she saw
the intruder’s face when the hood on his sweatshirt slid back away from his face after she
startled him. When he left, Ms. Scales called the police. She described the intruder to the

                                             -2-
police. She testified that Detective McShepard subsequently showed her a photo lineup, and
she identified Defendant as the person who was in her house. She also identified Defendant
in court. Ms. Scales testified that nothing was missing from her house.

       Detective McShepard testified that he responded to a home invasion call at Ms.
Scales’ residence. When he arrived, Ms. Scales provided a physical description of the person
who entered her home. Ms. Scales stated that he was a black male with a bald head,
approximately 200 to 220 pounds and six feet and one inch tall. He was approximately 30
years old, and he was wearing a dark hooded sweatshirt and blue jeans. Detective
McShepard testified that Officer Johnny Lawrence attempted to collect latent fingerprints
from the scene, but the prints taken were unidentifiable. Detective McShepard testified that
he did not observe any indications of a forced entry at Ms. Scales’ home.

        Detective McShepard testified that Defendant became a suspect in this case, and
Detective McShepard compiled a photo lineup to show Ms. Scales. Detective McShepard
acknowledged that the background in Defendant’s photograph was different and testified that
he had “absolutely no control over the backgrounds.” Detective McShepard read a form
“called advice to witness viewing a photographic display” to Ms. Scales before she viewed
the photo lineup. He showed the photo lineup to Ms. Scales on May 9, 2005, and she
identified Defendant in the photo lineup. Detective McShepard testified that “[t]here was
no hesitation.” He testified that he “absolutely did not say anything to [Ms. Scales]” about
having already identified a suspect in the investigation.

       Defendant did not testify or present any other proof at trial.

Analysis

Motion to suppress

        Defendant asserts that the trial court erred in denying his motion to suppress evidence
of the victim’s identification of Defendant. Defendant first contends that the victim’s
identification of Defendant at trial was not independent of her previous photo identification.
Defendant argues, “she, at best, only identified [the defendant] as the person she had
previously selected from the photo lineup[.]” Defendant also asserts that the photo lineup
was “unduly suggestive and prejudicial” because the background in the picture of Defendant
was white and the backgrounds in the other photographs were not, and “the police had made
clear to the victim prior to her viewing of the lineup they had a particular suspect in mind
thus sending the message that that person would be in the lineup.”




                                              -3-
       Regarding Defendant’s assertion that Ms. Scales’ in-court identification of Defendant
was not sufficiently independent of her identification in the photo lineup, the following
testimony is pertinent:

        Q.      Okay. Do you see the person in court today who broke into your
                house on May 5 th –

        A.      The man that I identified. Yes, I do.

        Q.      Would you please point him out and describe what he’s wearing?

        A.      He’s to my left, here.

        Q.      What kind of clothes is he wearing?

        A.      He’s got the white shirt on.

        Q.      You don’t want to look at him, do you?

        A.      No.

        Q.      Okay. Ms. Scales, are you sure that this is the man here today who
                broke into your house on that occasion?

        A.      Yes, sir.

       Defendant concedes on appeal that Defendant is the person about whom Ms. Scales
was testifying. Ms. Scales answered that she saw the man she identified in the photo lineup
in court, and she testified that the man she identified in the photo lineup was the man who
was inside her house. She also answered affirmatively that the man she identified in court
was the man who broke into her house. Ms. Scales’ testimony sufficiently identified
Defendant as the person who was inside her house.

        Defendant also asserts that his picture was “illuminated by the difference in
background from the other photos in the lineup . . . .” He argues that the “grossly dissimilar”
background in Defendant’s photo, taken together with Ms. Scales knowledge that
investigators had identified a suspect, made the photo lineup overly suggestive. Defendant
contends the trial court erred by denying his motion to suppress the results of the photo
lineup.



                                               -4-
       An appellate court may consider the evidence presented at the suppression hearing as
well as at trial in determining whether the trial court properly denied a pretrial motion to
suppress. State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). In conducting our
review, it is a settled principle that “[f]indings of fact made by the trial judge after an
evidentiary hearing of a motion to suppress are afforded the weight of a jury verdict, and this
court will not set aside the trial court’s judgment unless the evidence contained in the record
preponderates against his findings.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)
(quoting State v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992)). In addition, the
Tennessee Supreme Court has stated:

         Questions of credibility of the witnesses, the weight and value of the
         evidence, and resolution of conflicts in the evidence are matters entrusted
         to the trial judge as the trier of fact. The party prevailing in the trial court
         is entitled to the strongest legitimate view of the evidence adduced at the
         suppression hearing as well as all reasonable and legitimate inferences that
         may be drawn from that evidence. So long as the greater weight of the
         evidence supports the trial court’s findings, those findings shall be upheld.
         In other words, a trial court’s findings of fact in a suppression hearing will
         be upheld unless the evidence preponderates otherwise.

Id. at 23.

        Our analysis of this issue is based upon the United States Supreme Court’s holding
in Simmons v. U.S., 390 U.S. 377 (1968), and Neil v. Biggers, 409 U.S. 188 (1972). In
Simmons, the Court held that “convictions based on eyewitness identification at trial
following a pretrial identification by photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.” 390 U.S. at 384. In Neil v.
Biggers, the Court established a two-part analysis which the trial court must apply to
determine the validity of a pretrial identification. 409 U .S. at 198-200. First, the trial court
must determine whether the identification procedure was unnecessarily suggestive. Id. at
198. Next, if the trial court determines that the identification was unnecessarily suggestive,
it must then consider whether, under the totality of the circumstances, the identification
procedure was nonetheless reliable. Id. at 199. In Tennessee, it is unnecessary to apply the
totality of the circumstances test described in Biggers if the trial court determines that the
identification procedure was not unnecessarily suggestive. See State v. Butler, 795 S.W.2d
680, 686 (Tenn. Crim. App. 1990) (declining to apply the totality of the circumstances test
when a lineup was not found to be unnecessarily suggestive).




                                               -5-
        When a defendant argues that a lineup is suggestive based on differences between the
subjects of the lineup, this Court has required that the subjects be “grossly dissimilar” before
it will find that the lineup is impermissibly suggestive. See State v. Edwards, 868 S.W.2d
682, 694 (Tenn. Crim. App. 1993) (citing U.S. v. Wade, 388 U.S. 218 (1967); Young v. State,
566 S.W.2d 895 (Tenn. Crim. App. 1978); Shye v. State, 506 S.W.2d 169 (Tenn. Crim. App.
1973)).

       The trial court denied Defendant’s motion to suppress Ms. Scales’ identification
testimony. At the conclusion of the suppression hearing, the trial court made the following
findings of fact:

        I do not find based solely on the background distinctions that the
        photographic array is unduly suggestive to the extent that it may have
        resulted in a misidentification, mistaken identification of constitutional
        proportions.

        Yes, there is no question that there is a difference in the backgrounds.
        There are really two or three different backgrounds on this photo array. . .
        . But I do not find that that, in and of itself, based on what the Court has
        heard at this time violates any due process principles or is impermissibly
        suggestive.

        Based on our review of the record, we agree with the trial court and conclude that
there was nothing unnecessarily suggestive about the photo lineup. The lineup contains
photographs of six African American males, all of whom appear to be of similar age, similar
in size, and all are bald with some facial hair. Each photograph is uniform in size. The
background in Defendant’s photo is white. The backgrounds in the other five photos are also
light in color, either gray or white with darker shadows, but none are as white as the
background in Defendant’s photo. Two pairs of the photos appear to have the same
background, and another photo has a different background. All of the photos have similar
backgrounds, however, and the differences are not pronounced. There is nothing about the
background in any of the photos to draw the viewer’s attention away from or toward any
particular man in the photos. Defendant’s photo is not “grossly dissimilar” to the others in
the lineup.

       Defendant cites this Court’s opinion in State v. Albert W. Bentley, No. M2010-01882-
CCA-R3-CD, 2011 WL 6916762 (Tenn. Crim. App., at Nashville, Dec. 29, 2011), no Rule
11 app. filed, in which this Court affirmed the trial court’s denial of the defendant’s motion
to suppress, finding that the photo lineup was not unnecessarily suggestive. Defendant
distinguishes this case on the basis that the backgrounds in the photo lineup in Bentley

                                              -6-
“appear[ed] to be similar, if not identical.” (Emphasis added). We are not persuaded by this
distinction. Also in Bentley, this Court held that the detective’s statement to the victim in
that case that the police had identified fingerprints and his question about whether the victim
knew the defendant were not unnecessarily suggestive. Id. at *6 (citing State v. Christopher
M. Black, No. M2007–00970–CCA–R3–CD, 2010 WL 681405, at *14 (Tenn. Crim. App.,
at Nashville, Feb. 26, 2010), perm. app. denied, (Tenn., Aug. 26, 2010) (holding detective’s
statements to witness before a photographic lineup that police had a “‘possible suspect’” or
a “‘DNA match’” were not unnecessarily suggestive). Detective McShepard testified at the
suppression hearing that Ms. Scales was aware that police had a suspect in this case;
however, at trial, Ms. Scales denied assuming that police had a suspect when she viewed the
photo lineup, and Detective McShepard denied that he made any statements to Ms. Scales
about investigators having a suspect. Even if Ms. Scales knew when she viewed the photo
lineup that the police had a suspect, that would not necessarily invalidate the photo lineup,
and Defendant offers no authority in support of such contention. Defendant is not entitled
to relief on this issue.

Evidence that Defendant’s photo in the photo lineup was a booking photo

        Defendant asserts that the trial court erred by allowing Detective McShepard to testify
that the photo of Defendant used in the photo lineup was a booking photo. Defendant argues
that this testimony was not relevant and was more prejudicial than probative.

        In order to be admissible, evidence must be relevant and probative to an issue at trial.
State v. McCary, 922 S.W.2d 511, 515 (Tenn. 1996); see also Tenn. R. Evid. 402. Evidence
is relevant if it has “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. However, even relevant evidence may be excluded at trial
if the probative value of that evidence “is substantially outweighed . . . by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403. The determination of relevancy is left to the discretion of the trial court, and this Court
will not overturn a trial court’s ruling in this regard in the absence of an abuse of discretion.
State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).

        At the pretrial hearing on Defendant’s motion to suppress, Detective McShepard
testified that Defendant “had been a suspect in several other burglaries in the area, including
one particular one. So he was developed as a suspect based on his height, weight and age
information that was provided by the victim.” After ruling that the photo lineup was
admissible, the trial court expressed concern that the State not present evidence that
Defendant had been suspected in other burglaries and that his photo was a booking photo.



                                               -7-
       In accordance with the trial court’s instruction to avoid such testimony, Detective
McShepard testified at trial about the process of constructing a photographic lineup but did
not state how Defendant was developed as a suspect in this case or how he obtained
Defendant’s photo for the lineup. The State asked Detective McShepard, “[W]as
[Defendant] developed as a suspect in this case?” to which Detective McShepard answered,
“Yes, sir, he was.” On cross-examination, defense counsel questioned Detective McShepard
about the photo lineup and asked, “[S]o you’re obviously not going to have any control over
the background in that picture, in particular, right?” On redirect examination, the State asked
Detective McShepard, “[W]hy was the background white in the picture that [Defendant] was
taken.” He began to explain that “[t]he Sheriff’s Department had completed a renovation of
the booking area,” and defense counsel objected. The trial court then allowed Detective
McShepard to testify that the Sheriff’s Department had completed a renovation of the
booking area and some colors on the wall were changed by painting.

       Regarding the admissibility of “mug shots,” this Court has previously held:

        The defendant objected to the introduction of pictures taken of him on the
        day of the offense because the pictures were obviously police photographs,
        which are commonly referred to as “mug shots.” The admissibility of
        photographs is within the discretion of the trial judge, and unless this Court
        can say the prejudicial effect of a photograph far outweighs the probative
        value thereof, the trial judge will not be found to have abused his discretion.
        State v. Banks, 564 S.W.2d 947 (Tenn. 1978).

        The danger in the introduction at trial of mug shots of an accused is that an
        inference of previous criminal activity may arise. However, mug shots
        alone are not sufficient to cause such inference. U.S. v. Calarco, 424 F.2d
        657 (2nd Cir. 1970). The mug shots in this case bore the date of the
        offense. Obviously, the pictures would not raise any inference of prior
        criminal activity.

State v. Washington, 658 S.W.2d 144, 146 (Tenn. Crim. App. 1983).

        Defendant’s position at trial was that the background in the photo of Defendant was
so distinct that it somehow impermissibly highlighted Defendant in the photo lineup. The
State asserts on appeal that Detective McShepard’s testimony was relevant to “dispel[ ] the
idea that investigators were conspiring to secure an identification of the defendant by
improper means.” We disagree. While the identification of Defendant by the victim in the
photo lineup is a fact of consequence to the trial, Detective McShepard’s testimony about the
photo background was not relevant to refute Defendant’s suggestion that the photo lineup

                                              -8-
was improperly suggestive. It was the color of the background in each photo, not the reason
why the background color was as it was, that was relevant. However, the prejudicial effect
of testimony that Defendant’s photo was taken in the booking area of the sheriff’s office is
minimal. There was no evidence presented that Defendant had been suspected of other
burglaries in the area or that he had in fact been previously convicted of other crimes. The
error was harmless. Defendant is not entitled to relief on this issue.

Relevance of victim’s nonappearance at first trial date

        Defendant asserts that the trial court should have allowed him to cross-examine the
victim about her failure to appear at the originally scheduled trial date because it reflected
on the victim’s credibility. The State responds that such evidence is not relevant and that the
trial court’s limitation on Defendant’s cross-examination of the victim was proper.

        The trial in this case was originally scheduled to begin on August 30, 2010. On that
date, the trial court conducted a hearing on Defendant’s motion to suppress. Following the
hearing and voir dire, the court announced that the victim, Ms. Scales, was not present. The
State explained that Ms. Scales had indicated that she did not have notice “that this was
going to happen today, and that she wanted to prosecute but was not able to come today, or
something like that.” The trial court then stated its efforts to locate Ms. Scales as follows:

               And I also, in the presence of the attorneys, attempted to make
        contact with her as well, and got voicemails. I called her both on my office
        phone, as well as my cell phone in case she wasn’t answering because of the
        prefix of my office number.

               Based on that I sent out a material witness warrant bond set on it
        [sic] and sent two of my staff, along with the State’s investigator to her
        address, where she is verified to still be living and they just called me back.
        Her daughter was still there, her daughter did make contact with her on the
        phone. Her daughter conveyed to her mother, what was conveyed to her by
        my staff, which was, if she came back to the house right now and joined
        them in coming to court and testifying, that when her testimony was over
        with she would be allowed to leave and everything would be fine.
        However, if she refused to come that she, the material warrant had issued
        and that when she was found she would be taken into custody and if she
        couldn’t post the bond it would be unclear how long she would be in jail.
        She said she didn’t care, she wasn’t going to be here today, and hung up.




                                              -9-
                And her daughter has not provided us any information on where Ms.
        Scales is at the present time, so they don’t know where to go looking. So,
        that’s it in a nutshell.

       The trial court denied Defendant’s oral motions to dismiss for failure to prosecute and
for speedy trial and set a new trial date for October 4, 2010. The State subsequently filed a
motion to prohibit Defendant from making references to the victim’s failure to appear at the
prior court date. In the motion, the State asserted without any citation to authority “that Ms.
Scales prior failure to come to court is completely irrelevant and not probative of any issue
regarding her credibility or truth-telling ability.” At a hearing on the State’s motion, the
following exchange occurred:

        [Defense counsel]: Respectfully, Your Honor, I think it absolutely has
        everything to do with credibility and it goes beyond just the fact that she
        failed to appear in court, it’s the fact that she’s been telling different stories
        to your court officers. At one point she said she was in Mt. Juliet, and at
        one point she said she was in Memphis. One point she said she forgot she
        had to come to trial today. So the issue is more that she is kind of blowing
        all the smoke all over the place and I feel I should at least be able to ask her
        –

        [Prosecutor]: Your Honor, she never said she was going to Memphis. Her
        sister, I think said that, and I don’t know what the reason for that is, and she
        never did said [sic] she didn’t know she didn’t have to come to court or she
        forgot, she just basically felt like she didn’t have enough notice to come to
        court and it was inconvenient for her to come to court on that da[y]. We
        obviously corrected that.

                But I don’t think there is a different story that she’s told. She said
        she was in Mt. Juliet, she’s maintained she was in Mt. Juliet and I think
        that’s, I mean that’s the truth. As far as I can tell she certainly wasn’t at her
        house.

        THE COURT: I’m going to grant the motion. I don’t think it has any
        relevance to the issues in this case, and quite frankly the, I’m not sure until
        she came in here with the attorney, Mr. Mayo, we never really did address
        it at that time, that there was any direct communication with her. It was her
        daughter not her sister –

        [Defense counsel]: Yes, sir.

                                              -10-
        THE COURT: – who happened to be at the house.

        [Prosecutor]: I know her sister at some point called somebody.

        THE COURT: I think that’s true. I think her sister called and talked to one
        of the court officers, and then there was some communications with her
        daughter at her residence and her daughter said she was not there. And she
        communicated some things, but none of them came from the witness
        [her]self. I don’t think she’s ever given an explanation except through her
        attorney.

        [Defense counsel]: Respectfully, Judge, the fact of the matter is that she
        actually knew she had court that day, and that she was coming in here and
        basically making up excuses for why she wasn’t here. And at the very least
        I’d like to be able to ask her about a conversation I had with her where she
        told me that she was coming to court on Monday, and she knew she had
        court and all this stuff. Then she comes in and starts telling the court that
        she didn’t have notice and she didn’t realize, she didn’t remember, whatever
        her excuse has been. And it’s obviously more than just, you know, oh, it
        was inconvenient. And so, I think that’s at least probative to her credibility
        as a witness and whether the jury can believe that she feels comfortable, you
        know, basically saying whatever she wants to the Court.

        THE COURT: Well, I’m going to grant the motion.

       As we stated earlier in this opinion, relevant evidence is evidence that has “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. We review a trial court’s determination as to relevance of evidence for an abuse of
discretion. State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).

       Although Defendant did not request to make an offer of proof by examining Ms.
Scales about her absence at the originally scheduled trial date, the above quoted exchange,
including the trial court’s recitation of the events concerning Ms. Scales’ absence and
defense counsel’s statements to the court about his pretrial conversation with Ms. Scales, are
sufficient to allow our review of the issue.

       Defendant asserts that because the only evidence of Defendant’s identity as the
perpetrator is Ms. Scales’ identification of him, her credibility was at issue in the trial.
Defendant argues, “it would have been relevant to cross-examine Scales [about] whether it

                                             -11-
was her uncertainty over her identification of the Defendant that led to her refusal to come
to court and testify the first time the case was set for trial.” We agree with Defendant, and
thus disagree with the trial court’s conclusion that evidence of Ms. Scales’ refusal to appear
at the originally scheduled trial date was not relevant to her credibility. We believe that at
the very least, Ms. Scales’ flagrant refusal to obey a lawful subpoena to appear at a court
proceeding does in fact directly reflect on her credibility as a witness. If nothing else, it
could lead to an inference that a person who refuses to obey a subpoena without just reason
would also refuse to accept the solemnity of an oath to tell the truth. For this reason, we
conclude that the trial court abused its discretion by not allowing Defendant to cross-examine
Ms. Scales about her failure to appear. In light of the crucial nature of Ms. Scales’ testimony
to the State’s case, we conclude that the error is not harmless. Accordingly, the conviction
must be set aside and this case remanded for a new trial.

Lay testimony regarding fingerprint evidence

        Defendant contends that the trial court erred by allowing Detective McShepard to
testify as to why no fingerprints were able to be developed in this case. Detective
McShepard testified on direct examination that Officer Johnny Lawrence attempted to lift
latent prints from the range hood, which Ms. Scales testified she saw Defendant reaching for
to turn off the light. Detective McShepard testified, and a report introduced into evidence
shows, that the prints were unidentifiable. About the results of the report, Detective
McShepard testified, “It means that the, they were unidentifiable. There was a lot of grease
inside of that particular kitchen area, so the prints were of no value.” Defendant did not
object to the report or Detective McShepard’s testimony.

      On cross-examination, defense counsel asked Detective McShepard whether he had
viewed the fingerprints again since 2005 in light of advancements in fingerprint technology,
and Detective McShepard testified that he had not. On redirect examination, Detective
McShepard testified:

        Q:      So, basically the technology that [defense counsel] is asking about
                is that [the fingerprint examiner] would look at the same fingerprint
                [five] years later and compare it against the same fingerprints five
                years later and I guess, he’s insinuating she would come up with a
                different result this time; is that fair?

        A.      I can say with an absolute certainty that she wouldn’t come up with
                anything other than what was unidentifiable, of no value, from 2005.




                                             -12-
        The State argues that Defendant has waived review of this issue by failing to make
a contemporaneous objection at trial. Appellate relief is generally not available when a party
is “responsible for an error” or has “failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of any error.” Tenn. R. App. P. 36(a); see State v.
Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). Nevertheless, even if Defendant
had not waived this issue by failing to object, we conclude that any error was harmless. The
fingerprint evidence did not inculpate Defendant, and Defendant was not prejudiced by
Detective McShepard’s testimony. Defendant is not entitled to relief on this issue.

Sufficiency of the evidence

       Defendant next asserts that the evidence at trial was insufficient to support his
conviction for aggravated burglary. Specifically, Defendant contends that the State failed
to prove any intent to commit a theft.

       Our standard of review when a defendant challenges 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 (1979). This rule
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). In the absence of direct evidence, a criminal offense
may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d
237, 241 (Tenn. 1973). The jury decides the weight to be given to circumstantial evidence,
and “[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted).
“The standard of review [for sufficiency of the evidence] is the same whether the conviction
is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        This 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). Questions
regarding witness credibility, conflicts in testimony, and the weight and value to be given to
evidence were resolved by the jury. State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003). “A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.1973).



                                              -13-
       This Court must afford the State the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the
evidence. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Smith, 24
S.W.3d 274, 279 (Tenn. 2000)). “Because a verdict of guilt removes the presumption of
innocence and imposes a presumption of guilt, the burden shifts to the defendant upon
conviction to show why the evidence is insufficient to support the verdict.” State v. Thacker,
164 S.W.3d 208, 221 (Tenn. 2005).

       In order to sustain a conviction for aggravated burglary, the evidence must show that
Defendant entered the victim’s residence, without her consent, and with the intent to commit
a felony, theft or assault. Tenn. Code Ann. § 39-14-402, -403.

        Ms. Scales testified that when she saw Defendant in her home, she immediately
confronted him, asking him why he was in her home and picking up a chair “for protection.”
The jury could reasonably infer that Ms. Scales had not given Defendant her consent to be
in her home. Defendant argues that “there was no evidence of any intent to commit a theft.”
This Court has held that specific intent may be established by circumstantial evidence. State
v. Burkley, 804 S.W.2d 458, 460 (Tenn. Crim. App. 1990). In Burkley, this Court held that
“[w]hen one enters, without authorization, an occupied dwelling which contains valuable
property, a jury is entitled to infer that the entry was made with the intent to commit a
felony.” 804 S.W.2d at 460 (citing Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973)).

        Defendant asserts that because there was no evidence of forced entry and nothing
appeared to have been taken from the victim’s residence, that the evidence does not support
a finding of intent to commit a theft. However, we conclude that the jury could reasonably
infer that Defendant intended to commit a felony once inside the victim’s home. Defendant
is not entitled to relief on this issue.

                                      CONCLUSION

      For the reasons set forth herein, the judgment of the trial court is reversed and
remanded for a new trial.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




                                             -14-
