                                                                                         05/23/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              December 12, 2017 Session

           STATE OF TENNESSEE v. BOBBY RAY GRAVES, JR.

                  Appeal from the Circuit Court for Warren County
                   No. 14-CR-372      Larry B. Stanley, Jr., Judge
                      ___________________________________

                           No. M2017-00088-CCA-R3-CD
                       ___________________________________

A Warren County Circuit Court Jury convicted the Appellant, Bobby Ray Graves, Jr., of
failure to appear, a Class E felony, and the trial court sentenced him to six years in
confinement. On appeal, the Appellant contends that the evidence is insufficient to
support the conviction because the State failed to prove that he “went into hiding to avoid
prosecution” and that the State committed prosecutorial misconduct during closing
arguments. Based upon the oral arguments, the record, and the parties’ briefs, we affirm
the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Nathan Scott Luna (on appeal), Murfreesboro, Tennessee, and Rick Stacy (at trial),
McMinville, Tennessee, for the appellant, Bobby Ray Graves, Jr.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Lisa Zavogiannis, District Attorney General; and Thomas J. Miner,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       At trial, Jonathan Crouch, a correction officer with the Warren County Sheriff’s
Department (WCSD), acknowledged that on September 13, 2013, he appeared before the
Warren County Grand Jury and asked for an indictment against the Appellant for
introducing contraband into a penal institution, a felony. In September 2014, Crouch
received a subpoena to appear and testify at the Appellant’s trial for the offense, which
was set for October 7, 2014. Crouch, other witnesses, and the Appellant’s attorney were
present for trial on October 7. However, the Appellant was not present, so the trial did
not go forward. On cross-examination, Crouch testified that he did not know why the
Appellant did not appear and acknowledged that the Appellant’s case for introducing
contraband into a penal institution still had not gone to trial.

       Ryan Julian Moore testified that he represented the Appellant in the case for
introducing contraband into a penal institution. Moore appeared with the Appellant at the
Appellant’s arraignment, and the trial court set a trial date. The Appellant was out on
bond while awaiting trial, and he and Moore maintained contact. The State asked Moore
what information he obtained from the Appellant in order to stay in contact with him, and
Moore answered, “Well, his whereabouts, telephone numbers. You know, we would also
typically get email addresses. [The Appellant] did not have an email address to my
understanding.”

        Moore testified that the Appellant’s trial initially was set for May 20, 2014, but
had to be continued to July 2, 2014. Moore spoke with the Appellant by telephone and
met with him in person to make him aware of the date change. At some point, the
Appellant’s trial was reset for October 7, 2014. On June 27, 2014, Moore contacted the
Appellant by telephone to discuss the new trial date. On July 10, 2014, Moore and the
Appellant met in Moore’s office, and Moore “reaffirmed” to the Appellant that October 7
was the date for trial. On September 26, 2014, the Appellant and Moore met in Moore’s
office to discuss trial strategy.

        Moore testified that as October 7 approached, he began to worry that the Appellant
might not show up for trial because the Appellant’s bondsman, Len Murray, was having
“trouble” locating the Appellant. Moore began trying to contact the Appellant and used
five different telephone numbers to try to reach him but was unsuccessful. Moore did not
try to contact the Appellant by mail. The Appellant’s brother, Brandon Graves, lived in
Knoxville, and Moore received a telephone call from Graves the day before trial. On
October 7, 2014, the Appellant’s witnesses appeared for trial, but the Appellant did not
appear. Moore said he did not remember if he tried to contact the Appellant after
October 7.

       On cross-examination, Moore testified that the Appellant was having “some
marital difficulties” before trial. He said that he did not know if the Appellant owned a
car and that he did not know why the Appellant did not appear for trial.

      Len Murray testified that he retired from the Rutherford County Sheriff’s
Department in 2007, went into the bail bonding business, and was a licensed bail
bondsman. The Appellant’s bail for introducing contraband into a penal institution was
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set at $2,500, and Murray signed the Appellant’s bail bond on June 4, 2014. At that time,
the Appellant’s trial date was July 2, 2014. However, the trial was later reset for October
7, and Murray advised the Appellant of the new date.

       Murray testified that when he signed the Appellant’s bond, the Appellant was
required to provide him with addresses and telephone numbers so that he could stay in
contact with the Appellant. While the Appellant remained on bond, the Appellant was
required to report to Murray every Tuesday by telephone so that Murray could “verify
phone numbers, addresses, where [he] is staying, is he working anywhere.” Murray said
the Appellant complied with that requirement “until probably the last three weeks prior to
the October court date.” Murray explained,

              I believe it was probably about the last week and a half in
              September and then all the way up to the trial date I did not
              hear from him. I tried making contact with him, the co-signer
              but we were -- at that point he still had not failed to appear. I
              was trying to make contact with him and was unable to do so.

Murray became concerned about his liability on the bond. He talked with the bond’s co-
signer; the Appellant’s wife; and the references the Appellant had provided, but “nobody
seemed to know where he was at.” Murray’s boss also contacted the Appellant’s brother.

       Murray testified that he was present in court on October 7 but that the Appellant
did not appear. That same day, a scire facias and a warrant for the Appellant’s arrest
were issued. Murray obtained a certified copy of the warrant and began looking for the
Appellant. He stated,

              We started our search at that time here, in other counties and
              whatnot, trying to locate [the Appellant], interviewing people,
              following leads. We spent a considerable amount of time and
              money, gasoline, mileage, trying to locate [the Appellant] but
              at that point we had not and it wasn’t until I was contacted by
              the probation, State probation services that [the Appellant]
              had been arrested in Knoxville.

Murray had a cellular telephone with him at all times, and the Appellant knew how to
contact him. If the Appellant had contacted Murray and said he did not have a ride to
court, Murray would have tried to arrange transportation for him.

      On cross-examination, Murray testified that he knew prior to October 7, 2014, that
the Appellant was no longer living with the Appellant’s wife. However, he did not know
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prior to that date that the Appellant was from Knoxville. Murray acknowledged that he
did not know why the Appellant did not appear for trial on October 7, 2014.

       Deputy Newman Ford of the WCSD testified that he used to be a correction
officer at the Warren County Jail and was supposed to testify against the Appellant on
October 7, 2014. However, the Appellant did not appear for trial. On cross-examination,
Deputy Ford acknowledged that the contraband involved a cellular telephone, not drugs.
At the conclusion of his testimony, the State rested its case.

         The Appellant testified that he originally was from Knoxville and that his brother
still lived there. When the Appellant married his wife, he moved to Warren County. In
2000, the Appellant pled guilty to five aggravated robberies and served time in prison. In
2012, he pled guilty to felony thefts and shoplifting. He said he pled guilty to all of the
offenses because he was guilty. While he was serving time in jail for the felony thefts, he
was charged with introducing contraband into a penal institution. He decided to go to
trial on the charge because he was not guilty.

       The Appellant testified that while he was awaiting trial, he was released from jail.
He met with his attorney, Ryan Moore, and stayed in contact with him. The Appellant
and his wife lived in Warren County, the Appellant remained in Warren County, and he
was prepared to go to trial on July 2, 2014. However, at the end of June 2014, the trial
date was reset to October 7, 2014. The Appellant remained in contact with Moore and
met with him. In August, the Appellant’s wife “put [him] out,” and he was living “[o]n
the streets here and there.” He did not own a car, so a friend gave him a ride to
Knoxville. The Appellant intended to return to Warren County for trial on October 7 and
“felt good” about his defense.

        The Appellant testified that on October 7, his brother was driving him from
Knoxville to Warren County. They left Knoxville at 7:00 or 7:30 a.m. in plenty of time
for court. However, about an hour into the trip, the Appellant’s brother’s car “started
messing up” on Interstate 40, so they pulled over. The car was “smoking,” and they
could not drive it. The Appellant’s brother telephoned the Warren County Courthouse to
let “them” know the Appellant would be “a little late.” During the call, the Appellant’s
brother learned that an “FTA,” or failure to appear, had been issued for the Appellant.
The Appellant’s brother telephoned a friend, and the Appellant and his brother waited
about forty-five minutes for the friend to come get them. While they were waiting, they
got the car “up and running,” and the friend followed them back to Knoxville. The
Appellant did not go to Warren County and did not contact his attorney or his bondsman.
He acknowledged that he regretted how he handled the situation.



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        On cross-examination, the Appellant testified that he spoke with Moore within a
week before the scheduled trial. He said that he did not remember the date he spoke with
Moore but that “I remember speaking with him.” The Appellant acknowledged that his
brother and his brother’s friend were not present to testify for him about why he was
unable to appear for trial on October 7. He said that he was no longer on speaking terms
with his brother and that he did not know his brother’s friend. The Appellant
acknowledged that he was on probation when he went to Knoxville and that he violated
his probation by going there. He also acknowledged that he knew he would be arrested
for the probation violation if he returned to Warren County on October 7.

       At the conclusion of the proof, the jury convicted the Appellant of failure to
appear. After a sentencing hearing, the trial court found him to be a career offender and
sentenced him to the statutorily-required punishment of six years to be served at sixty
percent release eligibility. See Tenn. Code Ann. § 40-35-108(c) (providing that a career
offender must serve the maximum punishment in Range III); Tenn. Code Ann. § 40-35-
112(c)(5) (providing that the maximum punishment in Range III for a Class E felony is
six years); Tenn. Code Ann. § 40-35-501(f) (providing that a career offender does not
become eligible for release until serving sixty percent of the sentence).

                                       II. Analysis

                             A. Sufficiency of the Evidence

       The Appellant contends that the evidence is insufficient to support the conviction
because the State failed to prove that he “went into hiding to avoid prosecution.” The
State argues that the evidence is sufficient. We agree with the State.

       When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court 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); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
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burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).

       A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “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) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘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)).

        As charged in this case, “[i]t is unlawful for any person to knowingly fail to appear
as directed by a lawful authority if the person . . . [k]nowingly goes into hiding to avoid
prosecution or court appearance.” Tenn. Code Ann. § 39-16-609(a)(5). The indictment
specified that the “prosecution or court appearance” being avoided by the Appellant was
“trial.” It is a defense to prosecution that the person “had a reasonable excuse for failure
to appear at the specified time and place.” Tenn. Code Ann. § 39-16-609(b)(2).

        The Appellant contends that the evidence is insufficient to support the conviction
because all of the State’s witnesses testified that they did not know why he did not appear
for trial on October 7; thus, the evidence does not show that he was “hiding to avoid
prosecution.” We disagree with the Appellant.

        Taken in the light most favorable to the State, the evidence shows that the
Appellant knew he was to appear for trial on October 7, 2014, and that he provided his
attorney, Ryan Moore, and his bondsmen, Len Murray, with addresses and telephone
numbers so they could maintain contact with him while he was awaiting trial. In the
months leading up to the trial date, the Appellant kept in contact with Moore and made
required weekly telephone calls to Murray. Two or three weeks before trial, though, he
suddenly and inexplicably stopped contacting Murray. Concerned, Murray began trying
to find the Appellant by using the telephone numbers, addresses, and references the
Appellant had provided to Murray for the express purpose of Murray’s being able to
locate the Appellant. Moore, aware that Murray could not find the Appellant, also used
numerous telephone numbers the Appellant had provided but was unable to get in touch
with him. The Appellant did not appear on the day of his scheduled trial, and he never
notified Moore or Murray about the reason for his absence or his location. Murray used
various resources to try to track down the Appellant after he did not appear for trial but
still was unable to find him. Murray did not learn the Appellant’s whereabouts until the
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police arrested the Appellant in Knoxville. From these facts, we conclude that the jury
heard circumstantial evidence from which it reasonably could infer that the Appellant did
not appear for trial on October 7 because he was hiding to avoid trial. Accordingly, we
conclude that the evidence is sufficient to support the conviction.

                               B. Prosecutorial Misconduct

       The Appellant contends that the State committed prosecutorial misconduct during
closing arguments. The State argues that the Appellant is not entitled to relief. We agree
with the State.

      In order to prevail on a claim of prosecutorial misconduct, the Appellant must
demonstrate that the conduct committed by the prosecution was so inflammatory or
improper that it affected the verdict to his detriment. Harrington v. State, 385 S.W.2d
758, 759 (Tenn. 1965); State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App. 1997). In
making this determination, this court is guided by five factors:

              1. The conduct complained of viewed in context and in light
              of the facts and circumstances of the case.

              2. The curative measures undertaken by the court and the
              prosecution.

              3. The intent of the prosecutor in making the improper
              statement.

              4. The cumulative effect of the improper conduct and any
              other errors in the record.

              5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also State v. Buck,
670 S.W.2d 600, 609 (Tenn. 1984). We note that “the Judge factors should only be
applied to claims of improper prosecutorial argument,” as in this case, not claims of
unconstitutional prosecutorial comment. State v. Jackson, 444 S.W.3d 554, 591 n.50
(Tenn. 2014). “[T]he State bears the burden of proving unconstitutional prosecutorial
comment or argument harmless beyond a reasonable doubt, whereas a defendant bears
the burden of proving prejudice when prosecutorial argument is merely improper.” Id.

       Regarding prosecutorial misconduct during closing arguments, it is well-
established that closing argument is an important tool for both parties during a trial; thus,
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counsel is generally given wide latitude during closing argument, and the trial court is
granted wide discretion in controlling closing arguments. See State v. Carruthers, 35
S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such, arguments must
be temperate, based upon the evidence introduced at trial, relevant to the issues being
tried, and not otherwise improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5
(Tenn. Crim. App. 2003).

        In Goltz, 111 S.W.3d at 6, this court outlined “five general areas of prosecutorial
misconduct” that can occur during closing argument: (1) intentionally misleading or
misstating the evidence; (2) expressing a personal belief or opinion as to the truth or
falsity of the evidence or defendant’s guilt; (3) making statements calculated to inflame
the passions or prejudices of the jury; (4) injecting broader issues than the guilt or
innocence of the accused; and (5) intentionally referring to or arguing facts outside the
record that are not matters of common public knowledge. “In determining whether
statements made in closing argument constitute reversible error, it is necessary to
determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

        Although the Appellant takes issue with five statements made by the prosecutor
during the prosecutor’s closing arguments, he did not object to four of those statements.
A defendant’s failure “to proffer contemporaneous objections to the challenged remarks”
waives the issue on appeal. State v. Robinson, 146 S.W.3d 469, 518 (Tenn. 2004); see
Tenn. R. App. P. 36(a). During oral arguments, counsel for the Appellant made a cursory
request that we review the four statements for plain error. Tenn. R. App. P. 36(b)
(providing that “[w]hen necessary to do substantial justice, [this] court may consider an
error that has affected the substantial rights of a party at any time, even though the error
was not raised in the motion for a new trial or assigned as error on appeal”). However,
given that the Appellant made no legal argument in his brief or at oral arguments as to
why the prosecutor’s statements rise to the level of the heightened plain error standard,
we decline counsel’s request. Therefore, we will only address the statement to which
trial counsel objected.

       During the State’s rebuttal closing, the prosecutor stated as follows:

                     The offer of proof that you’re given in this case by the
              defendant to explain his lack of presence is that he tried to get
              here but he broke down on the interstate. His brother was
              with him. A friend came and got them and rather than
              bringing him on to McMinnville to address the failure to
              appear that had been issued and try to get that resolved, they

                                            -8-
              turned around and went back to Knoxville and never bothered
              to contact the court again.

                     Now, the defense has offered to put responsibility for
              disproving that off on me but that’s the defense’s theory,
              theory that was being offered for the first time today. I didn’t
              know to call his brother.

        At that point, defense counsel requested to approach the bench and stated, “There
is no obligation on our part to provide anything of that nature until today. That is what
trial is for.” The trial court responded, “I think that may need clarifying. Yes today
would have been the day to put forth whatever evidence you had. [The prosecutor] may
have inadvertently implied that there was another day that that should have been done but
anyway, go ahead.” The prosecutor continued as follows:

              Today would have been the day. It’s his evidence. He does
              not have his brother here. He doesn’t have his brother’s
              friend here. He doesn’t have anybody from the clerk’s office
              here to explain about receiving that phone call. He doesn’t
              have any explanation as to why he didn’t proceed on to
              McMinville when he had a ride, why he didn’t take care of
              the problem. He offers that up to you as reasonable doubt for
              convicting him. It’s not.

        The Appellant contends that the argument about his failure to have his brother or
his brother’s friend testify at trial “injected a broader issue than that of the defendant’s
guilt or innocence,” which violates Goltz. We conclude that the State did not commit
prosecutorial misconduct. During cross-examination of the Appellant, the State asked if
his brother, his brother’s friend, or anyone from the courthouse who took his brother’s
telephone call was present to testify for him. The Appellant did not object to the State’s
questions and answered each question in the negative. Therefore, the prosecutor’s
argument was based on the evidence at trial. Moreover, during the State’s initial closing
argument, the prosecutor argued that if the Appellant’s story about having car trouble on
the highway were true, then the Appellant’s brother and brother’s friend would have
testified for him. The prosecutor further argued that because the Appellant did not call
his brother or his brother’s friend to testify, the jury could conclude that their testimony
would not have been favorable to the Appellant. Again, the Appellant never objected to
the prosecutor’s statements.

       We note that the missing witness rule allows a party to argue and have the jury
instructed “that if the other party has it peculiarly within his power to produce a witness
                                           -9-
whose testimony would naturally be favorable to him, the failure to call that witness
creates an adverse inference that the testimony would not favor his contentions.” State v.
Middlebrooks, 840 S.W.2d 317, 334 (Tenn. 1992). However, before a party may invoke
the missing witness rule, the record must demonstrate that (1) the witness had knowledge
of material facts; (2) a relationship existed between the witness and the opposing party
that would naturally incline the witness to favor that party; and (3) the missing witness
was available to the process of the court for trial. State v. Francis, 669 S.W.2d 85, 88
(Tenn. 1984); Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979). The Appellant did not
argue at trial that the prosecutor’s cross-examination questions or closing arguments
violated the missing witness rule. He also does not raise the rule on appeal. Given the
Appellant’s failure to object to the State’s questioning at trial, the Appellant’s failure to
object to the State’s initial closing argument, and the Appellant’s failure to make any
argument regarding the missing witness rule at trial and on appeal, we conclude that he is
not entitled to relief. See Tenn. R. Evid. 36(a).

                                     III. Conclusion

     Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the trial court.
                                         ____________________________________
                                         NORMA MCGEE OGLE, JUDGE




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