        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville May 15, 2012

           STATE OF TENNESSEE v. JAMES RANDALL ROSKAM

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2010-C-2679     Cheryl Blackburn, Judge


                No. M2011-02071-CCA-R3-CD - Filed August 20, 2012


A Davidson County Criminal Court Jury convicted the appellant, James Randall Roskam, of
aggravated robbery, a Class B felony, and the trial court sentenced him as a Range II,
multiple offender to twenty years in confinement. On appeal, the appellant contends that the
evidence is insufficient to support the conviction and that the State impermissibly elicited
testimony from its witnesses about his prior bad acts in violation of Rule 404(b), Tennessee
Rules of Evidence. Based upon 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 is Affirmed.

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

Elaine Heard, Nashville, Tennessee, for the appellant, James Randall Roskam.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Anton Jackson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                  I. Factual Background

        The victim, Santiago Martinez, testified at trial that in July 2010, he was homeless and
living in Nashville. To make money, the victim sold The Contributor, a newspaper focusing
on homeless people. The victim usually sold his newspapers at the corner of 4th Avenue and
Broadway from 8:00 a.m. to about 11:00 p.m., and he always wrote his name on any five-,
ten, and twenty-dollar bills he received in case he was robbed. The victim said that on the
night of Saturday, July 17, 2010, he was selling newspapers when a man approached. The
man told the victim that he was “going to collect taxes,” pulled a knife, and put it against the
victim’s stomach. The victim felt the knife and saw that it had a stone handle. He said the
knife was more than six inches long and “kind of scary.” The man was wearing a dark shirt
and jeans, was carrying a backpack, had a hat or bandana, and smelled of alcohol. The
victim said he had seen the man one time previously when they were on a bus “going to a
meal” for the homeless.

       The victim testified that the man told him that “if you don’t give me the money, I’m
going to stick you.” The victim gave the man a five-dollar bill, and the man ran west on
Broadway. The victim said that as the man was fleeing, the man said, “I got some money
now, I got some money now, I can go drink.” The victim used his Safe Link cellular
telephone to call 911. At some point, the police brought the man, who was the appellant, to
the victim, and the victim identified him as the robber. The victim also identified the
appellant at trial as the robber. The State showed the victim a five-dollar bill with the name
“Santiago” written on it, and the victim identified it as the bill he gave to the appellant. He
said that he did not give the money to the appellant in order for the appellant to buy beer and
that he had no intention of drinking beer with the appellant on the night of July 17.

        On cross-examination, the victim acknowledged that he testified at the appellant’s
preliminary hearing. When asked if he said at the hearing that he did not see the knife’s
handle, he stated, “It’s kind of hard to remember. It’s been a while now.” The victim usually
made one hundred to two hundred dollars per day selling newspapers. However, on July 17,
2010, he had been working all day and had only five dollars. He said that the robbery
occurred about 10:30 p.m., but he acknowledged that he said at the preliminary hearing the
robbery occurred about 7:30 or 8:00 p.m. He did not remember if tourists were around him
at the time of the robbery. He denied that the appellant asked to “split” a pack of beer with
him and said that he did not know what the appellant did with the knife after the robbery.

        Officer Michael Eva of the Metropolitan Nashville Police Department (MNPD)
testified that about 10:30 p.m. on July 17, 2010, he responded to the victim’s robbery call.
The victim and his girlfriend were present, and the victim was upset and concerned about his
money. The victim was not intoxicated. The victim claimed the robber approached him,
pulled a knife, demanded money, and threatened to stab him. The victim said the robber was
wearing a black shirt and blue jeans and was carrying a backpack. The victim also told the
officer that the robber’s name was “Roscoe” and that he gave the robber a “marked” five-
dollar bill. The victim later identified the appellant as the man who robbed him.

      On cross-examination, Officer Eva testified that he was on bike patrol when he
responded to the victim’s call. He was about one-half block away from the robbery and

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arrived at the scene within one or two minutes. He did not look for a knife after the robbery,
and a knife was never found.

       Officer Brian Theriac of the MNPD testified that he was on bike patrol on the night
of July 17, 2010, and learned about the robbery. The robber had been described as a white
male, who went by the name “Roscoe.” The robber supposedly was wearing blue jeans and
a black shirt and carrying a backpack. Officer Theriac rode along Broadway and saw the
appellant, who matched the robber’s description, walking over the railroad tracks just west
of 10th Avenue. Officer Theriac yelled, “Roscoe,” and the appellant answered, “[Y]eah,
what.” Officer Theriac asked the appellant where he was coming from, and the appellant
said Broadway. The appellant allowed Officer Theriac to search him. The officer found a
five-dollar bill marked with the victim’s name and arrested the appellant.

        On cross-examination, Officer Theriac testified that he did not find a knife on the
appellant’s person. He looked for the knife along Broadway but did not find it. The
appellant did not attempt to flee from him, was not nervous or upset, and was cooperative.
Officer Theriac said the appellant claimed “he was going to get beer” at the nearby gas
station.

       Officer Keith Holley of the MNPD acknowledged that he transported the appellant
back to the corner of 4th Avenue and Broadway for a “showup.” The appellant smelled of
alcohol, and the victim identified him as the robber.

       On cross-examination, Officer Holley testified that many people were usually at 4th
Avenue and Broadway on a Saturday night, especially in the summertime. He said he did not
look for a knife.

      At the conclusion of the State’s proof, the jury convicted the appellant of aggravated
robbery, a Class B felony. After a sentencing hearing, the trial court sentenced him as a
Range II, multiple offender to twenty years in confinement to be served at eighty-five
percent.

                                        II. Analysis

                              A. Sufficiency of the Evidence

       The appellant contends that the evidence is insufficient to support the conviction
because the victim’s testimony was “wholly unreliable,” the knife was never found, and the
appellant did not seem nervous or upset when Officer Theriac approached him. The State
claims that the evidence is sufficient. We agree with the State.

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        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); see
also 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. See
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. See 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. See 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 burden of demonstrating to this court that the
evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Taken in the light most favorable to the State, the evidence shows that on the night
of July 17, 2010, the victim was selling newspapers. The appellant approached him, put a
knife to his stomach, and demanded money. The victim recognized the appellant, knew him
as “Roscoe,” and gave him a five-dollar bill marked with the victim’s first name. A short
time later, Officer Theriac saw a man matching the robber’s description. When he yelled
“Roscoe,” the appellant answered. Officer Theriac searched the appellant and found the
marked five-dollar bill, and the victim identified the appellant at the scene and in court as the
man who robbed him. Although the appellant claims that the victim’s testimony was
unreliable, the jury, not this court, was in the best position to assess the credibility of the
witnesses. The jury obviously accredited the victim’s testimony, as was its prerogative.
Therefore, the evidence is sufficient to support the conviction.

                                      B. Prior Bad Acts

        The appellant contends that the State impermissibly elicited testimony from its
witnesses about his prior bad acts. The State argues that the issue has been waived and that
any error does not rise to the level of plain error. We conclude that the appellant is not
entitled to relief.

       Before trial, the appellant filed a motion to prohibit the State’s witnesses from
mentioning “any other crimes Mr. Roskam is not charged with that may have occurred at any
point, specifically that ‘Mr. Roskam had been going around robbing homeless people.’”
According to the appellant’s brief, the trial court granted the motion and “gave specific
instructions to the prosecution to neither mention nor elicit any information from witnesses

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regarding the excluded propensity, character, bad acts material.” However, the appellant did
not include the transcript of the motion hearing in the appellate record.

        The appellant contends that the State intentionally elicited prior bad act evidence from
its witnesses three times in violation of Tennessee Rule of Evidence 404(b).1 In the first
instance, the State asked the victim if he had seen the robber previously, and the victim
answered yes. The State asked him, “Did you have any other contact or interaction with the
person that had robbed you?” The victim answered, “At one time I did. He was robbing on
the bus.” The defense objected, and the trial court ordered the jury to “[d]isregard the last
statement.” In the second instance, the State asked Officer Eva, “When you arrived on the
scene, who all was present?” Officer Eva stated, “The victim Mr. Martinez, his girlfriend
Ms. Ives. There was a second victim. I can’t recall his name.” The defense again objected,
and the trial court told the parties to approach the bench. The State said, “Judge, I’ve
explained to them that they could not go into that line[.]” The trial court replied, “That’s two
witnesses in a row.” The court told the jury, “Disregard the last answer and treat it as if you
had never known it.” In the third instance, the State asked Officer Eva, “And once the
suspect was apprehended did you recognize him, the defendant?” Officer Eva stated, “As
far as past dealings, I don’t think I’ve had any past dealings.” The defense objected for a
third time, and the trial court asked the parties to approach the bench. The trial court told the
State, “The question was a lousy question. . . . [O]bviously there is some history.” Defense
counsel stated, “I mean, if this continues, I’m going to have to move for a mistrial.” The
trial court said, “Right. Officer Eva only answered the question asked him. And that wasn’t
a good question.” The court instructed the jury, “Disregard the question and the answer.”

        Tennessee Rule of Evidence 404(b) provides, “Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in conformity
with the character trait. It may, however, be admissible for other purposes.” Those other
purposes include “identity, intent, motive, opportunity, or rebuttal of mistake or accident.”
State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).

       In this case, the appellant alleges that the trial court granted his motion and prohibited
the State’s witnesses from testifying about his prior bad acts. However, as noted by the State,
the appellant has failed to include the transcript of the motion hearing in the record on
appeal. The appellant carries the burden of ensuring that the record on appeal conveys a fair,
accurate, and complete account of what has transpired with respect to those issues that are
the bases of appeal. Tenn. R. App. P. 24(b); see also Thompson v. State, 958 S.W.2d 156,
172 (Tenn. Crim. App. 1997).



       1
           The appellant does not claim he is entitled to relief based upon prosecutorial misconduct.

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        Nevertheless, we will briefly address the appellant’s argument. Initially, we note that
the third statement, Officer Eva’s response that “[a]s far as past dealings, I don’t think I’ve
had any past dealings [with the appellant],” did not make any reference to prior bad acts.
Regarding the remaining two statements, that the appellant was robbing on the bus and that
the robbery in question involved two victims, the defense objected after each statement, and
the trial court instructed the jury to disregard the statement. Generally, we presume that a
jury has followed the trial court’s instructions. See State v. Butler, 880 S.W.2d 395, 399
(Tenn. Crim. App. 1994).

        The appellant also did not request a mistrial. See Tenn. R. App. P. 36(a). The
defendant concedes that he did not request a mistrial based upon the State’s misconduct but
argues that he is entitled to plain error relief because the trial court should have sua sponte
declared a mistrial when the appellant brought the improper statements to the court’s
attention.

        A mistrial should be declared in criminal cases only in the event that a manifest
necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.
1991). In other words, a mistrial is an appropriate remedy when a trial cannot continue or
a miscarriage of justice would result if it did. State v. McPherson, 882 S.W.2d 365, 370
(Tenn. Crim. App. 1994). Before plain error may be recognized, the error must be “an
especially egregious error that strikes at the fairness, integrity, or public reputation of judicial
proceedings.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994); see also
Tenn. R. App. P. 36(b). In Adkisson, this court listed the following factors to be considered
in determining whether to address plain error: (a) the record must clearly establish what
occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected; (d) the accused did
not waive the issue for tactical reasons; and (e) consideration of the issue is necessary to do
substantial justice. Id. at 641-42.

        Turning to the instant case, the appellant failed to include a transcript of the motion
hearing, which would have included the parties’ arguments, the evidence presented, and the
trial court’s oral findings. Therefore, the record does not clearly establish what occurred in
the trial court. Moreover, the appellant objected after the statements, and the trial court
instructed the jury to disregard them. Thus, the appellant has not established that a
substantial right was adversely affected. Finally, defense counsel was aware of the option
to request a mistrial but chose not to do so. Therefore, the appellant has not established that
he did not waive the issue for tactical reasons. The appellant is not entitled to plain error
relief.




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                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.


                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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