         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     June 26, 2007 Session

         STATE OF TENNESSEE v. MARCUS DWAYNE WELCOME

                       Appeal from the Criminal Court for Knox County
                         No. 81546 Richard R. Baumgartner, Judge



                  No. E2006-01839-CCA-R3-CD - Filed September 26, 2007



JOSEPH M. TIPTON , P.J., concurring.

         I concur in the result and most of the reasoning in the majority opinion. I write separately
because I believe the trial court should have, as it originally ruled, barred use of the defendant’s
aggravated robbery conviction for impeachment. The main conduct of aggravated robbery that
relates to dishonesty is essentially a theft. In the present case, the state had evidence of two prior
theft convictions and two other acts of theft with which to impeach the defendant. To allow use, as
well, of an aggravated robbery conviction in this aggravated robbery trial would add little probative
value on the issue of the defendant’s credibility compared to the substantial prejudice it would have
by involving an offense similar to the offense on trial.

         I do not believe, though, that the defendant has established prejudice. The defendant did not
testify. His counsel stated to the court that the defendant would have testified he was not present at
his uncle’s home during the robbery and that he had no role in any robbery of his uncle. Given such
a conclusory, non-testimonial offer of proof and the unrefuted testimony of the defendant’s uncle,
I do not believe the error “more probably than not affected the judgment.” T.R.A.P. 36(b).



                                                      ____________________________________
                                                      JOSEPH M. TIPTON, PRESIDING JUDGE
