        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                 MIDDLE DIVISION AT NASHVILLE

                                 January 15, 2013 Session

           STATE OF TENNESSEE v. ROBERT WAYNE GARNER
                           _____________________________

   APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT FOR GILES
                       COUNTY AT PULASKI
                  No. 15034 Jim T. Hamilton, Judge
                 _______________________________

              No. M2011-02581-CCA-R3-CD - Filed September 30, 2013

                          _______________________________

The appellant, Robert Wayne Garner, appeals his jury convictions for first degree murder
in perpetration of a felony, a Class A felony, see Tenn. Code Ann. § 39-202(a)(1);
aggravated arson, a Class A felony, see Tenn. Code Ann. § 39-14-302; and theft of
property valued over ten thousand dollars, a Class C felony, Tenn. Code Ann. § 39-14-
103. The appellant received the mandatory minimum sentence for first degree felony
murder of life in prison. The trial court additionally sentenced the defendant to serve
twenty-five years for his conviction of aggravated arson and three years for his conviction
of theft. The latter sentences were ordered to be served concurrently, but consecutively to
the life sentence for felony murder, for a total effective sentence of life plus twenty-five
years. On appeal Garner alleges insufficiency of the evidence; trial court error allowing
hearsay testimony; trial court error not allowing impeachment of a witness with a prior
conviction; and trial court error in allowing the hearsay of a phone call. After a thorough
review of the record, we affirm the judgments of the trial court.

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

P AUL G. S UMMERS, Sr. J., delivered the opinion of the Court in which JAMES C URWOOD
W ITT, Jr., J., joined, and J OSEPH M. T IPTON, P. J., concurred in results.

Mr. Stanley K. Pierchoski, Pulaski, Tennessee, for appellant, Robert Wayne Garner.

Robert E. Cooper, Jr. Attorney General and Reporter; Brent C. Cherry, Senior Counsel,
Assistant Attorney General; Lawrence R. Nickell, Jr. and Kyle E. Dodd, Assistant District
Attorney, for the appellee, State of Tennessee.
                                         OPINION

                           I. Facts and Procedural Background


       On August 13, 2011, Robert Wayne Garner, after a jury trial, was convicted of first
degree murder in perpetration of a felony, aggravated arson, and theft of property over
$10,000 and less than $60,000. The jury heard 44 witnesses and viewed 61 exhibits. The
District Attorney General presented this circumstantial evidence case. The murder of
Brenda Wilburn was a heinous crime. Ms. Wilburn was assaulted, bound, gagged, and her
house burned down around her. After three days of testimony and seven hours of
deliberation, the jury verdict was unanimous on all counts. Garner was sentenced to life in
prison plus 25 years.
                                      II. Facts and Analysis

(a) Sufficiency of the evidence

       Trial proof indicates Robert Wayne Garner needed money. Mr. Garner was behind
in his rent; his electric bill was due; and his daughter’s car needed expensive repairs. His
wife had previously pawned her jewelry for needed cash. He earned only $125 in his last
paycheck as a truck driver. Mr. Garner found a way to get the money he needed. A former
tenant of Brenda Wilburn, Garner had visited her only a few days earlier and was familiar
with her house. Garner knew Ms. Wilburn kept money in her home, knew she wore
expensive jewelry, and knew she lived alone.

       The prosecutor’s theory of the case was that Garner entered her home on Highway
64 near Pulaski, Tennessee, around 10:00 a.m. on January 19, 2011, and assaulted Ms.
Wilburn. He tightly tied her hands behind her back and bound her ankles with electrical
wire. Garner placed a plastic bag containing her blood-covered panties over her head. He
followed with a second plastic bag, tied securely, effectively smothering Ms. Wilburn. A
piece of clothing was found tied around her neck strangling her. Trial testimony revealed
Ms. Wilburn probably suffered greatly during the last few minutes of her life.

      Garner set fire to the house and fled the premises. Later investigation revealed Ms.
Wilburn was already dead when the flames consumed her body. The fire burned for about
an hour before a passerby saw smoke and flames coming from the house and called 911.

        Firefighters arrived and found a rapidly growing, very hot fire. A quick
investigation found Ms. Wilburn’s cars still on the premises. Three firemen attempted to
enter the dwelling and effectuate a rescue. Firefighters were repelled by the excessive heat
and were unable to proceed more than a few feet into the house. Tennessee Bureau of
Investigation (TBI) and local police were called to the scene. It took several hours for the
fire to cool so debris could be cleared. The intense fire collapsed the two story house into a
single mound of smoking embers.


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       Investigators, sifting the rubble, found the body of Ms. Wilburn located in what was
once a walk-in closet. Her body was severely burned. She had first, second, third and
fourth degree burns over 90% of her body. Her hands and feet were completely burned off.
Clothing protected her head from complete destruction, and the plastic bags on her head
were only partially burned. She was nude from the waist down.

      The proof showed that while the fire was still burning, Garner had unexplained
money. The same day he paid his electrical bill, his rent and offered to make extra
payments. That same afternoon he paid cash for the repairs to his daughter’s car and
payments on his furniture. Garner gave his wife money to pay her probation fees and to go
shopping at Walmart. Mrs. Garner paid probation fees of five times the amount she
normally paid each week.

        Appellant’s wife liked jewelry, and Garner gave her a large two-carat solitaire ring
and a diamond necklace. The solitaire ring had a unique flaw that made it positively
identifiable as belonging to Ms. Wilburn. The ring appraised for $12,000, and the necklace
for $750.

      The proof showed Mrs. Garner told people Mr. Garner had given her the new
jewelry, including the two-carat diamond solitaire ring and the diamond necklace. Garner
gave her the jewelry immediately after the incident at Ms. Wilburn’s house. Garner also
gave her money to redeem her previously pawned jewelry. When Mr. Garner’s wife asked
him where he got the money and jewelry he responded “you’re better off if you don’t
know.” The investigation revealed no credible alternative explanation for Mr. Garner’s
sudden possession of wealth.

       The circumstantial proof continued. Mrs. Garner went to Walmart with a friend and
while in the parking lot showed her friend cash totaling $4,800 in one-hundred dollar bills.
       The total bills Mr. and Mrs. Garner paid and the money his wife displayed was
roughly equal to the amount of money known to be in Ms. Wilburn’s possession shortly
before her death. Police, canvassing local pawn shops, found pawned jewelry items
including a pendant necklace belonging to Mrs. Wilburn. The pawn ticket showed Mrs.
Garner pawned the pendant a few days after the murder. Mrs. Garner was questioned by
the police, and she wore the unique solitaire ring to the police station for her interview.

       A local citizen found a credit card with Ms. Wilburn’s name on it lying near a mail
box and notified police. Investigators searched along the road from near where Garner
lived ending at Ms. Wilburn’s house. They found two other credit cards also belonging to
Ms. Wilburn, a used condom, pair of shoes and some other items. The shoes were similar
to a pair of shoes worn by Mr. Garner previously during a police interview. All items
gathered were subjected to tests, and only the credit cards were conclusively tied to the
case.

      Mr. Garner attempted to establish an alibi. He failed. Garner had served as a police
informant for drug related purchases. He called his police contact the afternoon of the fire
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and asked what the police knew about the fire. Garner also called Sheena Huntley, a
former business associate, and indicated he had an alibi for the time of the fire, even
though there was no reason Sheena Huntley should suspect he would need one.

       When Garner was arrested, he told police a story of meeting two men. According to
Garner, these same two men had previously assaulted Mr. Garner at a motel. Garner insists
he met the two men at the same motel and purchased a bag of assorted jewelry from them
for $100. Mr. Garner stated a man (Mr. Gentry) living at the motel was present and could
verify his purchase. Upon inquiry by police and in testimony during trial, Mr. Gentry, the
man Mr. Garner said would confirm his alibi, vehemently denied ever seeing Mr. Garner
at the motel and denied any transaction ever took place in his presence.

       When the sufficiency of the evidence is challenged, the appellate court's standard
of review is whether, considering the evidence in the light most favorable to the
prosecution, any trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Tenn. R. App. P. 13(e).

       A guilty verdict by the jury, approved by the trial court, accredits the testimony of
the witnesses for the state and resolves all conflicts in favor of the prosecution’s theory.
State v. Bland, 958 S.W. 2d 651, 659 (Tenn. 1997). “A verdict of guilty removes the
presumption of innocence and replaces it with a presumption of guilt and the defendant
has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. On appeal, the state is entitled to the strongest legitimate view of the evidence
and to all reasonable and legitimate inferences that may be drawn from it. State v. Hall, 8
S.W.3d 593, 599 (Tenn. 1999). “Questions about the credibility of witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved
by the trier of fact, and this Court does not re-weigh of re-evaluate the evidence.” State v.
Evans, 108 S.W. 3d 231, 236 (Tenn. 2003). This court also may not substitute its
inferences, drawn from circumstantial evidence, for those drawn by the trier of fact. State
v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The defendant bears the burden of proving that
the evidence was not sufficient to sustain the conviction. Hall, 8 S.W.3d at 599.

       In determining whether the evidence supporting a conviction is insufficient, the
appellate court does not ask itself whether is believes that the evidence established guilt
beyond a reasonable doubt, but 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).

       These rules are applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. See
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).



                                              -4-
       The evidence was circumstantial. No direct evidence places Mr. Garner at the scene
of the crime. The intensity of the fire had degraded much of the DNA. The only conclusive
DNA evidence was from Ms. Wilburn, a couple of gloves and a used condom gathered in
a roadside search. The condom and gloves could not be associated with the crime, and the
DNA did not match any known persons. Mr. Garner argues that because DNA found in a
used condom and some gloves found along the road did not match him, it is proof that he
was not the perpetrator of Ms. Wilburn’s murder or the theft of her money and jewelry.
Neither Ms. Wilburn’s nor Mr. Garner’s DNA was found on the condom or gloves. The
condom and gloves neither proves nor disproves any issue.

       The jury had an opportunity to hear all the witnesses and judge their credibility.
The evidence was presented over several days. The state presented proof that the crimes
were meticulously investigated. The defense had ample opportunity to cross-examine all
witnesses. The evidence was judged by the jury sufficient to convict beyond a reasonable
doubt.

       Appellant asserts the evidence of record is insufficient, as a matter of law, to sustain
a verdict of guilty beyond a reasonable doubt. The evidence is circumstantial but,
interpreted in the light most favorable to the prosecution, is adequate to support Mr.
Garner’s convictions beyond a reasonable doubt.

       Appellant refers to Marable v. State, 313 S.W.2d 451 (Tenn. 1958), where the
defendant was convicted of second degree murder of her husband, based solely on
circumstantial evidence. There, the Tennessee Supreme Court stated that in cases of
circumstantial evidence, “the facts must exclude every other reasonable theory or
hypothesis except that of guilt.” Id at 456. However, since Marable was decided in 1958,
our Supreme Court decided State v. Dorantes, 331 S.W. 3d 370 (Tenn. 2011), in which the
court determined that in circumstantial evidence cases the state does not have the duty to
exclude every other reasonable hypothesis except that of guilt and adopted the standard
enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307
(1979). In Jackson, the Court rejected a higher standard for circumstantial evidence, and
held that direct and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence. Dorantes, 331 S.W.3d at 381. This Court does not re-
evaluate the evidence and substitute different interpretations of evidence.

        The state alleged appellant perpetrated the offenses of aggravated arson and/or theft
in which the victim was killed. The evidence of theft and arson is overwhelming. Inferring
Garner’s commission of arson and theft is permissible because the petitioner possessed
Ms. Wilburn’s property in close temporal proximity to the crimes. Ms. Wilburn’s death,
by reasonable inference, is related to the theft and arson; it was reasonable for the jury to
infer that the defendant is responsible for the death of Ms. Wilburn.

       Interpreting the totality of the evidence in the light most favorable to the
prosecution, we find no reversible error exists, we find the evidence on all crimes
sufficient beyond a reasonable doubt.
                                          -5-
(b) Admissibility of Evidence

       The appellant also argues the trial court erred in admitting testimony of Ms.
Rackley, the victim’s neighbor and friend, regarding a conversation with the victim nine
days before the murder. Ms. Rackley testified that the victim called her one evening. The
victim, who sounded “very nervous” asked Ms. Rackley to “turn on all [her] outside lights
because someone, whom the victim did not name, was in her house to pay a debt. The
appellant asserts the testimony was hearsay and testimonial in nature.

       Hearsay is generally inadmissible under Tenn. R. Evid. 802. According to
Tennessee. Rules of Evidence 801(c), “hearsay” is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. However, evidence rules allow for exceptions to the general hearsay
exclusion. The record reveals the witness testified to her impression of the deceased
victim’s state of mind in that the victim was nervous and scared because someone she did
not fully trust was in her house. The testimony is admissible under two exceptions to the
general hearsay exclusion.

      Tennessee Rules of Evidence 803(3), Covers “Existing Mental, Emotional, or
Physical Condition” and states in part:

       A statement of the declarant’s then existing state of mind, emotion,
       sensation, or physical condition (such as intent, plan, motive, design, mental
       feeling, pain, and bodily health), but not including a statement of memory
       or belief to prove the fact remembered or believed…

      Another hearsay exception also applies. Ms. Rackley testified that Ms. Wilburn was
nervous and scared. Ms. Wilburn was concerned for her safety and called her friend
expressing her fear. The visitor was still in her home. Under Tenn. R. Evid. 803(2)

          A excited utterance is “a statement relating to a startling event or
          condition made while the declarant was under the stress of excitement
          caused by the event of condition.

       In our view, these exceptions to the hearsay rule applied.

       That said, we note that Appellant claims that the hearsay testimony violated his
right of confrontation as guaranteed by the Sixth Amendment to the federal constitution
and article 1, section 9 of the Tennessee Constitution. See U.S. Const. amend. VI; Tenn
Const. Art. I, § 9. Although the provisions are not coterminous, our supreme court “‘has
largely adopted the standards used by the United States Supreme Court...in determining
whether the Tennessee constitutional right has been violated.’” State v. Parker, 350
s.w.3D 883, 897-98 (Tenn. 2011) (quoting State v. Maclin, 183 S.W.3d 335, 343 (Tenn.
2006); see also State v. Lewis, 235 S.W.3d 136, 144 (Tenn. 2007).
                                            -6-
       In Crawford v. Washington, 541 U.S. 36 (2004), The United States Supreme Court
departed from decades’ long precedent and held for the first time that “[W]here
testimonial evidence is at issue ...the Sixth Amendment demands ...unavailability and the
prior opportunity for cross-examination.” Crawford, 541 U.S. at 68. “Where
nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to
afford the States flexibility in their development of hearsay law.” Id. In Crawford, the
Court laid the groundwork for what came to be known as “the primary purpose” test for
distinguishing testimonial from non-testimonial statements.

       The Court refined the test in later opinions:

       Statements are nontestimonial when made in the course of police
       interrogation under the circumstances objectively indication that the primary
       purpose of the interrogation is to enable the police assistance to meet the
       ongoing emergency. They are testimonial when the circumstances objectively
       indicate that there is no such ongoing emergency, and that the primary
       purpose of the interrogation is to establish or prove past events potentially
       relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006) The Court noted that the objective
evaluation of “the circumstances in which the encounter occurs and the statements and
actions of the parties” is necessary to determine whether a statement is testimonial or
nontestimonial. Michigan v. Bryant —U.S.—,—, 131 S.Ct.1143, 1156 (2011)

       A “statement is nontestimonial if the primary purpose is something other that
establishing or proving past events potentially relevant to prosecution, such as providing
or enabling assistance to resolve an ongoing emergency.” State v. Franklin, 308 S.W.3d
799, 817 (Tenn. 2010)

      In the present case, Ms. Wilburn’s statements to Ms. Rackley were nontestimonial,
and consequently, the constitutional right of confrontation did not pose a bar to the
admission of the statements.

       Despite determining that neither the hearsay rule nor the constitutional provisions
for confrontation would bar the admission of the statements in this case, we must conclude
that the statements are irrelevant ans should have been excluded pursuant to Tennessee
Rule of Evidence 402 upon proper objection.1 “‘Relevant 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 Pursuant to Rule 402, “[e]vidence which is not relevant is


       1
        The appellant made a contemporaneous but non-specific objection to Ms. Rackley’s
testimony.
                                            -7-
not admissible.” Tenn. R. Evid. 402 In our view, the victims statements to Ms. Rackley
about being nervous over a person in her home nine days before the offenses were
committed does not make any fact of consequence to the case more or less probable. Thus,
the statement should have been excluded upon a proper objection. See Tenn. R. Evid. 103
(providing that “[e]rror may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected,” and when the ruling is one
admitting evidence, “a timely objection or motion to strike appears on the record, stating
the specific ground of objection us the specific ground was not apparent from the
context”).

      This observation notwithstanding, any error admitting the testimony was harmless,
See Tenn. R. App. P. 36(b). The evidence against the Appellant was overwhelming and
Ms. Rackley’s testimony added little to nothing else.

(c) Impeachment of Witness Using Prior Conviction over Ten Years Old

       Appellant asserts the trial court abused its discretion and improperly precluded him
from impeaching the state’s witness, Mr. Gentry, with prior convictions for theft. Garner
gave police a statement in which he said Gentry was present when Garner purchased the
stolen jewelry from two men at the Star Motel. The defense notified the prosecution of the
prior convictions as required under Tennessee Rules of Evidence 609(b). The state
introduced evidence of a prior conviction in 2004 for sale of cocaine by Mr. Gentry. Upon
direct examination Mr. Gentry did not confirm Mr. Garner’s story and denied any
knowledge of the incident. The prosecutor objected to a defense question of Mr. Gentry,
regarding a prior conviction for theft. Judge Hamilton held an unrecorded sidebar
discussion, and the state’s motion to exclude was sustained. The following note is in the
record:

       “The State’s objection to Defendant’s admitting into evidence two class A
      Theft convictions from 1994 and 1996 for impeachment of the State’s witness
      Jerry Gentry is sustained. The Court sustained because the convictions were
      more than ten years old. Said occurred during sidebar with the court reporter
      not present.”

Mr. Gentry’s convictions were greater than ten years old, and the court excluded them
under Tennessee Rules of Evidence 609(b).

      Tennessee Rules of Evidence 609(b) states in part:

              Evidence of a conviction under this rule is not admissible if a period
              of more than ten years has elapsed between the date of release from
              confinement and commencement of the action or prosecution; if
              witness was not confined, the ten-year period is measured from the
              date of conviction rather than release. Evidence of a conviction not
              qualifying under the preceding sentence is admissible if the


                                          -8-
              proponent gives the adverse party sufficient advance notice of intent
              to use such evidence to provide the adverse party with a fair
              opportunity to contest the interests of justice that the probative
              value of the conviction, supported by specific facts and
              circumstances substantially outweighs its prejudicial effect.

      Mr. Garner asserts the judge abused his discretion by failing to have a hearing to
determine if the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.

       The sidebar discussion was not memorialized, and no detailed record of the
discussion exists. The petitioner has the burden to prove that the judge abused the trial
court’s discretion. The record of the state’s objection to the use of Mr. Gentry’s prior
convictions based on Tennessee Rules of Evidence 609(b) does not preclude the judge
from having considered whether the probative value of the conviction, supported by
specific facts and circumstances, substantially outweighs its prejudicial effect. No record
exists allowing this Court to find judicial abuse of discretion. In the absence of clear,
contrary evidence, decisions of the trial court are accorded great deference. This type of
evidentiary decision is within the purview of the trial court and will not be overturned
absent abuse of discretion.

(d) Admissibility of Recorded Call

        Mr. Garner asserts the recorded call between him and Mrs. Garner, recorded at the
jail, was inadmissible hearsay and should not have been played for the jury.

       A statement by a party opponent is not excluded by the hearsay rule. Tenn. R.
Evid. 803(1.2)(A). Furthermore, the statement is not hearsay because it was not used for
the truth of the matter asserted. The statements made by the Appellant are admissible as
an admission by a party opponent.

       The statements were used to prove the Appellant was trying to align his story with
that of his wife’s. The statements of Appellant are admissible. The truth of the matters
discussed during the call was not an issue at trial, only that the conversation took place;
and the Appellant and his wife attempted to make their stories match. We hold the trial
court properly denied the objection.
                                        III. Conclusion

      Having carefully reviewed the record and based on the foregoing, we affirm the
judgments of the trial court in all respects.

                                                ______________________________________
                                                PAUL G. SUMMERS, Senior Judge




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