        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   July 12, 2011 Session

       STATE OF TENNESSEE v. CHARLES JACKSON AND WILLIS
                          HOLLOWAY

               Direct Appeal from the Criminal Court for Shelby County
                        No. 09-01388     Lee V. Coffee, Judge


               No. W2010-01133-CCA-R3-CD - Filed February 17, 2012


A Shelby County Criminal Court Jury convicted each of the appellants, Charles Jackson and
Willis Holloway, of two counts of aggravated robbery, a Class B felony; two counts of
aggravated kidnapping, a Class B felony; and one count of aggravated burglary, a Class C
felony. After a sentencing hearing, they received effective forty-four-year sentences. On
appeal, the appellants contend that (1) the trial court erred by refusing to allow them to cross-
examine a co-defendant about her engaging in prostitution before the crimes; (2) the trial
court erred by admitting the co-defendant’s complete written statement into evidence; (3) the
trial court erred by giving each juror a copy of the statement; (4) the trial court erred by
failing to redact the statement; and (5) the evidence is insufficient to support the convictions.
Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial
court erred by admitting the co-defendant’s complete statement into evidence but that the
error was harmless. Therefore, the appellants’ convictions are affirmed.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                                     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.

Mark Mesler, Memphis, Tennessee, for the appellant, Charles Jackson, and Joseph S.
Ozment, Memphis, Tennessee, for the appellant, Willis Holloway.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Anita Spinetta and Rachel Newton,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION
                                  I. Factual Background

       The record reflects that a Shelby County Grand Jury charged the appellants and two
co-defendants in a seven-count indictment. Specifically, the appellants were charged jointly
as follows: count one, aggravated robbery of Clarence Powers; count two, aggravated
robbery of Nadine Powers; count three, aggravated kidnapping of Clarence Powers; count
four, aggravated kidnapping of Nadine Powers; and count five, aggravated burglary. Their
co-defendants, Kim West and Larrisa Richardson, were charged jointly in counts six and
count seven with facilitation of aggravated robbery.

        At the appellants’ trial, eighty-five-year-old Clarence Powers testified that in
September 2008, he had a house for rent on Sparks Street in Memphis. The house was next
door to his own home. On September 16, Mr. Powers showed the rental house to Charles
Jackson and spent five to ten minutes with Jackson. Jackson liked the house and made an
appointment for his sister to see it sometime between 10:30 and 11:00 a.m. the next day. On
the morning of September 17, Mr. Powers took his wife to a chemotherapy appointment, and
they returned home between 10:30 and 11:00 a.m. As soon as they got home, someone rang
the doorbell. Mr. Powers said that his wife answered the door and that a man told her, “‘I’m
here to look at the house.’” Mrs. Powers walked away from the door, and Jackson and Willis
Holloway came inside. Mr. Powers said Jackson pointed a gun at him and told him, “‘Okay.
It’s a hold up.’” Meanwhile, Holloway ran to the back of the house. Mr. Powers stated that
Jackson ordered him onto the floor, stood over him, and said, “‘They say you got a safe in
here. . . . Give me the combination on it.’” Mr. Powers denied having a safe, and Jackson
grabbed him by his belt, carried him into the den, and threw him onto a love seat. Holloway
brought Mrs. Powers into the room and threw her onto a couch. Mr. Powers said that
Jackson told Holloway, “‘Go out to the truck and get a brand new roll of tape and bring it
back in.’” Holloway left and returned with a roll of duct tape. He taped Mrs. Powers’s hands
behind her back, taped her legs together, and put tape on her face. Then he taped up Mr.
Powers the same way. The appellants began ransacking the house. Mr. Powers said that a
few minutes later, “the house got silent.” He managed to free himself, locked the front door,
and freed his wife. The appellants returned to the house and tried to get in the front door but
found it locked. They left, and Mr. Powers telephoned the police. He said the appellants
took all of his wife’s jewelry, his new “pump gun,” seven hundred fifty dollars that had been
in a drawer, and a small safe containing eight thousand dollars.

       Mr. Powers testified that the robbery lasted twenty to thirty minutes and that he was
not injured. At some point, the police showed him some photograph arrays, but he did not
identify anyone. Later, officers showed him additional arrays, and he identified the
appellants as the robbers. At the appellants’ preliminary hearing in February 2009, Mr.
Powers was shown two men in court. He positively identified Holloway as one of the

                                              -2-
robbers but misidentified another man as the second robber. Jackson was not even in the
courtroom at the time of the identifications. Mr. Powers said he later realized his mistake
and informed someone in the courtroom. He said he wore glasses only to read.

       On cross-examination, Mr. Powers testified that both of the appellants had guns
during the robbery and that Holloway put on gloves before he taped up Mrs. Powers. Jackson
did not put on gloves. At first, Mr. Powers stated that he picked out the appellants’
photographs three or four hours after the robbery. However, he later acknowledged that
according to the date he wrote on the appellants’ photograph arrays, he identified them as the
robbers on October 7, 2008. He did not get any of his property back.

        Eighty-three-year-old Nadine Powers testified that on the morning of September 17,
2008, her husband took her to get a radiation treatment. They returned home about 10:30
a.m. She said that “[a] little while” later, someone knocked on the door and rang the
doorbell. She answered the door and saw a man and woman standing there. The man asked
to speak with her husband. Mrs. Powers said that she turned away from the door, that a man
“jumped in” behind her, and that she went to her bedroom in the back of the house. A few
minutes later, the man who had been standing at the door rushed into the room. He was
holding a pistol, pointed it at her face, and told her to get onto her knees. She said that she
was “scared to death” and that the man asked her about a vault. He shook everything out of
her purse and took four watches and fifty dollars that had been in it. He forced her to go into
the den, sat her on the couch, and bound her with duct tape. After her husband cut her loose,
she ran to the front of the house, looked out a window, and saw a dark-colored van backing
out of the driveway. Items were scattered all over the house. The robbers took property from
her closet and a small safe containing eight thousand dollars.

        Mrs. Powers testified that she was not injured during the robbery. The police came
to her house and showed her photograph arrays, but she did not recognize anyone. The
police showed her additional arrays on October 9, 2008, and she identified the woman who
was standing at her front door. She said she also identified the photograph of the man who
bound her with tape. Mrs. Powers identified Holloway in court as the man who knocked on
her door and bound her hands and feet with duct tape on September 17, 2008. She said she
did not see the second robber on September 17, 2008. On cross-examination, Mrs. Powers
testified that she did not get any of her property back.

       Officer Marcus Tucker of the Memphis Police Department testified that he and his
partner responded to a robbery call at the Powers home and were the first officers on the
scene. Duct tape was on a table in the living room and on a dresser in a bedroom. Officer
Tucker spoke with the victims and gathered information about the suspects. On cross-
examination, Officer Tucker testified that he tried to lift fingerprints off the doorknobs on

                                              -3-
the front storm door and wooden door but did not find any prints.

        Officer Patricia Turnmire of the Memphis Police Department’s Crime Scene
Investigation Unit went to the victims’ home on September 17 and took photographs. The
house had not been roped off, and many family members were in the home, which was
unusual. Officer Turnmire said that too many people were in the crime scene area and that
the scene was “contaminated with people [wandering] around and picking up items.” Duct
tape that had been removed from one of the victim’s hands and wrists was in an ash tray on
a table in the living room. Duct tape also was on the dining room table and on a dresser in
a bedroom. Officer Turnmire found a flashlight on a bed in a bedroom, and the flashlight
was turned on. She collected the duct tape, the flashlight, and other items, including two or
three boxes.

        On cross-examination, Officer Turnmire testified that she arrived at the house
sometime in the afternoon. After she arrived, officers made everyone in the house leave. Due
to the contamination of the scene, she did not process it for fingerprints.

        Jeffrey Garey of the Memphis Police Department’s Crime Scene Investigation Unit
testified that he processed the evidence collected by Officer Turnmire. The evidence
included a flashlight, a shoe box, and three wads of duct tape. He said he found “ridge
detail” on the shoe box and lifted a latent print off the box. Two pieces of duct tape also
contained ridge detail.

        Martin Milner of the Memphis Police Department’s Crime Scene Investigation Unit
testified that he evaluated the prints found by Jeffrey Garey. The ridge detail on the shoe box
was insufficient to make an identification. The prints lifted off the duct tape did not match
the appellants.

        Kim West testified that she was charged with facilitation of aggravated robbery in this
case and pled guilty. She also had a 2005 conviction for robbery. She said that on
September 17, 2008, she participated in the crimes with the appellants and Larrisa
Richardson. She said she was walking down the street when Holloway, whom she knew as
“Skeet,” attacked her and forced her to act as the lookout. She said that she served as the
lookout “[d]own the street on Sparks” and that the appellants ran inside the victims’ home
when the door opened. Holloway entered the house first, Jackson followed him, and
Richardson stood outside the door. West said that the appellants and Richardson had arrived
at the victims’ home in a brown and white van and that she did not ride to the victims’ home
with them. She said she never saw anyone with a gun on September 17, 2008. However, she
acknowledged that in her October 18, 2008 statement to police, she said the appellants had
guns. She explained, “The only thing I said that I remember [was] I saw [Richardson]

                                              -4-
knocking on the door and I saw them run in. I didn’t ever say they had . . . handguns. I don’t
remember saying that.”

       West testified that on the morning of September 17, she had heard Holloway and
Richardson talking about “going to do a hit” but that “I hear that all the time. I didn’t know
what they was talking about at the time.” She said she heard them talking at “Mr. [Willie’s]
house,” a place where people stayed when they did not have anywhere else to go. She said
that Charles Jackson also was at Mr. Willie’s house but that she only heard Holloway and
Richardson talking about committing the crimes. After the crimes, West saw the victims’
property at Mr. Willie’s house. She said she saw a safe, jewelry, cellular telephones, and
“stuff like that.” She said the State had not offered her anything in exchange for her
testimony.

        On cross-examination, West acknowledged that when she first spoke with the police,
she denied being involved. However, the police told her that her three co-defendants had
accused her of setting up the robbery and that she would never get out of jail if she did not
talk with the officers. She said Sergeant Frank Winston also told her that he would let her
go home if she told him “‘anything about anything.’” She said she was scared but told the
police the truth and “what I saw with my own eyes.” She said she told the police that she saw
Richardson knock on the victims’ door and that she saw the appellants run inside the house.
West acknowledged that according to her statement to police, she rode to the victims’ home
with Richardson and the appellants in a van. However, at trial, she denied riding in the van
and said, “Some of that stuff [the police] had in there in the statement, they just punched up
together that I didn’t even say, about the guns and the van and stuff and then the van, I don’t
remember saying that.” She acknowledged signing her statement and initialing every page.
She also acknowledged telephoning Melody Holloway, Willis Holloway’s sister, from jail
and telling her that the appellant did not have anything to do with the crimes. She said she
told Melody Holloway “what she wanted to hear. That’s all.”

        At the conclusion of West’s testimony, the trial court allowed the State to introduce
West’s four-page typed statement to police into evidence. According to the statement, West
initially denied participating in the crimes. However, she later said Holloway forced her to
participate by putting an ice pick to her neck and threatening to “stick” her. She also said,
in pertinent part, the following: Holloway and Richardson planned the crimes on the
morning of September 17, 2008. Holloway, Richardson, and Jackson borrowed a brown and
white van, and West rode with them in the van to the victims’ home. Holloway drove,
Jackson sat in the front passenger seat, Richardson sat behind Holloway, and West sat behind
Jackson. When they arrived at the victims’ house, West got out of the van and “walked off
and walked straight down Birdsong.” Richardson knocked on the victims’ door and “played
as the sister.” When the door opened, Holloway ran inside the house, and Jackson ran in

                                              -5-
after him. West said in the statement, “I did not have anything to do with that [s***]. I seen
them and I just walked off. I was the lookout, to let them know if the police or if somebody
was coming.”

        Larrisa Richardson testified that she used to be Charles Jackson’s girlfriend and that
she knew Kim West and Willis Holloway from “the neighborhood.” At the time of the
crimes, Richardson and Jackson were living in a room at a rooming house. On September
17, 2008, Richardson participated in the crimes with West, Holloway, and Jackson. She said
she knocked on the victims’ front door and walked away. Someone answered the door, and
the appellants went into the house. Richardson said she did not know why she participated
in the crimes, but she acknowledged telling the police she participated in order to get money
for her son’s birthday.

        On cross-examination, Richardson testified that on the morning of September 17,
2008, she and Holloway walked to the victims’ home. They did not drive a van. West served
as the lookout, but Richardson never saw her. Richardson said that she and Holloway stood
at the victims’ door, that she knocked on the door, and that she “walked off.” Jackson was
not standing at the door with them, and she did not know where he was. Sometime after the
crimes, the police took her to the police department twice for questioning. The first time, she
would not speak with them because she was scared. The second time, she agreed to speak
with them because they said she was going to be charged with two counts of aggravated
robbery. She acknowledged that the police came to her and Jackson’s room on October 8,
2008, and that she signed a consent to search form. She also acknowledged that she pled
guilty to facilitation of aggravated robbery in exchange for diversion upon successful
completion of a probation sentence. She acknowledged that she violated her probation and
that she was testifying in order to help her case.

       On redirect examination, Richardson testified that she decided to speak with the police
“to do what I had to do for my son.” She said she told the police the truth.

        Sergeant Myron Fair of the Memphis Police Department’s Robbery Bureau testified
that he and Sergeant Frank Winston showed six-photograph arrays to Clarence Powers soon
after the crimes. The arrays did not contain the appellants’ photographs, and Mr. Powers did
not identify anyone. On October 7, 2008, the officers showed additional arrays to Mr.
Powers. Mr. Powers picked out the appellants’ photographs and identified them as the
robbers.

        On cross-examination, Sergeant Fair acknowledged that Holloway’s face was tinted
red in the photograph array. He said the tint made Holloway’s photograph “[j]ust a little bit
different” than the other photos in the array. He said he took Nadine Powers’ statement in

                                              -6-
January 2009, four months after the crimes.

        Sergeant Frank Winston of the Memphis Police Department’s Robbery Bureau
testified that he arrived at the victims’ home about 12:30 p.m. on September 17, 2008.
Several bedrooms had been ransacked, and Sergeant Winston saw a flashlight on one of the
beds. Based on information he received about the crimes, he developed four potential
suspects. He put together photograph arrays containing the suspects’ photos. The arrays did
not contain the appellants’ photographs because the appellants were not suspects at that time.
Sergeant Winston showed the arrays to the victims, but the victims did not identify anyone.
At that point, Sergeant Winston did not have anymore leads in the case. Later, a confidential
informant (CI) gave him the names of Holloway, Jackson, West, and Richardson. Sergeant
Winston put together three photograph arrays. One array contained Jackson’s photograph,
one contained Holloway’s photograph, and one contained Richardson’s photograph. He
showed the two arrays containing the appellants’ photographs to Clarence Powers, and Mr.
Powers identified the appellants as the robbers. Sergeant Winston did not show the two
arrays to Mrs. Powers because she said she could not identify any of the males involved in
the crimes. However, Sergeant Winston showed the all-female array containing
Richardson’s photograph to Mrs. Powers, and she identified Richardson as the woman she
saw standing at her front door. The police arrested Richardson, and Sergeant Winston spoke
with her. Richardson waived her rights and identified Holloway, Jackson, and West as
participants in the crimes. The police also arrested West. West waived her rights, gave a
statement about the crimes, and identified photographs of Holloway, Jackson, and
Richardson.

        On cross-examination, Sergeant Winston testified that when he arrived at the crime
scene, the only people in the victims’ home were the victims and police officers. No one else
was allowed inside. When Sergeant Winston left, the victims’ family went inside the house.
Sergeant Winston said he did not remember another officer’s telling him that the crime scene
had been contaminated or that people needed to be removed from the home. He
acknowledged that the CI received something, such as money, in exchange for the CI’s
information. When Sergeant Winston first talked with Richardson, she lied to him. However,
she eventually admitted her involvement. He said that when the police arrested West, she
was “very defensive” and pretended not to know anything about the crimes. However, she
finally admitted her involvement. Sergeant Winston did not tell West she was going to spend
the rest of her life in jail. He said he did not obtain statements from Clarence and Nadine
Powers until January 2009 because “they were afraid to come outside by themselves” and
because he had to cancel several appointments with them due to his being dispatched to other
cases.

       On redirect examination, Sergeant Winston testified that he spoke with the victims on

                                              -7-
September 17, 2008, and on January 9, 2009. The State asked him if the victims’ versions
of events changed between the day of the crimes and January 2009, and he said, “Not at all.”
He said that West’s statement was typed and that she had an opportunity to correct it. She
initialed every page and signed the statement.

       Melody Holloway, Willis Holloway’s sister, testified for her brother that West
telephoned her numerous times from jail. Melody Holloway did not know West, but they
discussed the charges against the appellant.

       Lenwood Reed testified for Charles Jackson that he was the Logistics Manager for
DSC Logistics and the Senior Pastor for First Baptist Church. He said that he had known
Jackson for three or four years and that they met “through ministry.” They became friends,
and Jackson visited Reed’s home to wash Jackson’s clothes, mow the yard, and clean out the
garage. Reed said he was “almost sure” Jackson had a girlfriend in September 2008. One
day, Reed received a telephone call from a woman, who was crying and talking about how
much she loved Jackson. She told Reed, “‘Well, I did what I had to do for me[.]’” He said
he did not understand what she meant until later. Defense counsel asked Reed if he
remembered seeing Jackson on September 17, 2008. At first, Reed said no. However, he
then said he saw Jackson that day because he saw Jackson “on a normal basis.” On cross-
examination, Reed testified that the woman on the telephone identified herself by her
nickname but that he did not remember what she said.

       Charles Jackson testified that on September 17, 2008, he and Richardson were living
in a room at Mr. Willie’s rooming house. When the appellant woke that morning,
Richardson was not there. He waited on her for a while and helped Mr. Willie, who was
disabled. Afterward, he went to the store to get something for Mr. Willie and returned to the
rooming house. Richardson still had not returned, so the appellant walked up the street. He
did not see Richardson, so he rode a bus toward downtown. He got off the bus and visited
with some people he knew, including the mother of his two daughters. About 9:15 a.m., the
appellant got onto another bus and rode downtown. He got off the bus and telephoned
Lenwood Reed. Reed picked him up, they got something to eat, and they went to Reed’s
house. The appellant was at the house about forty-five minutes and washed some clothes he
had there. About 12:30 p.m., Reed drove him back to the rooming house. The appellant said
he did not know West but had seen her at a store previously. The appellant said he had never
seen the victims and denied being a member of a gang or robbing people. He said West
could have been lying about his involvement in the crimes in order to protect someone. He
acknowledged having a 2002 conviction for felony theft.

        On cross-examination, Jackson testified that he knew Holloway “from the streets.” He
said that Richardson smoked marijuana but that he did not smoke marijuana or crack cocaine.

                                             -8-
He said he did not have a job and paid for his room at the rooming house by selling drugs.
The State asked how he remembered his whereabouts on September 17, 2008, and he said,
“Simple and plain, that’s what happened. I mean, it’s me that’s doing it so I remember it. .
. . [I]t’s been in my mind since I’ve been in here.” He said he was arrested for the crimes on
October 7, 2008.

       The jury found the appellants guilty as charged. After a sentencing hearing, they
received ten years for each of their aggravated robbery and aggravated kidnapping
convictions, Class B felonies, and four years for their aggravated burglary convictions, Class
C felonies. The trial court ordered that the sentences be served consecutively for effective
sentences of forty-four years in confinement.

                                        II. Analysis

                               A. Cross-examination of West

        The appellants argue that the trial court improperly ruled that they could not question
Kim West about her engaging in prostitution just before the crimes. The State argues that
the trial court properly excluded West’s testimony about prostitution. We agree with the
State.

        On cross-examination, West acknowledged that she had been charged previously with
prostitution. Defense counsel asked, “In fact you were participating in prostitution the day
that this happened[?]” The State objected, and the trial court held a jury-out hearing. During
the hearing, West testified that on the morning of the crimes, she walked to Sparks Street and
engaged in an act of prostitution with a man in his home. The man’s house was across the
street from the victims’ house. When West and the man finished, he told her to look out a
window. She said she looked out the window and saw Richardson and the appellants
standing at the victims’ door. Richardson was knocking on the door. West said that when
she left the man’s house, Holloway forced her to be the lookout by threatening to stab her
with an ice pick.

        Counsel for Holloway argued that West’s testimony about being engaged in
prostitution on the morning of the crimes was admissible because it showed why she was on
Sparks Street and was inconsistent with her statement to police in which she said she rode
to the victims’ home in a van. The trial court concluded that West’s engaging in prostitution
on the morning of the crimes was irrelevant to any issue in the case and that even if it was
relevant, its probative value was substantially outweighed by the danger of unfair prejudice.
Regarding West’s explanation for how she got to Sparks Street on September 17, the trial
court ruled that it was inconsistent with her statement to police and that the defense could

                                              -9-
impeach her with the prior inconsistent statement. The trial court stated,

              Ask her where she claims she was and where she was leaving,
              but inside of the home turning a trick with a John does not add
              any relevance to this jury, so all questions about Johns or
              prostitution, those acts are not admissible, but you may certainly
              ask whether or not she’s given a prior statement and indicated
              she was at a home on a street and that she walked outside of the
              home and whatever else she claims that she did[.]

       The appellants contend that they should have been allowed to ask West about her
engaging in prostitution on the morning of the crimes and that the trial court’s refusing to
allow them to ask her about the prostitution violated their right to confrontation. They argue
that the jury would have found West’s inconsistent and “ridiculous” version of events
incredible.

        Generally, evidence must be relevant to some issue at trial in order to be admissible.
See Tenn. R. Evid. 402. “‘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; see
also State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999). However, even relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403. It is within the trial court’s discretion to determine whether the proffered evidence is
relevant; thus, we will not overturn the trial court’s decision absent an abuse of discretion.
See State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). “Under this standard,
we will not reverse unless the trial court applied an incorrect legal standard, or reached a
decision which is against logic or reasoning that caused an injustice to the party
complaining.” State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008) (internal quotations and
citations omitted).

        In this case, West testified during the jury-out hearing that she walked to a man’s
house on the morning of the crimes, engaged in a sexual act with him, looked out a window,
and saw Richardson and the appellants standing at the victims’ door. We agree that West’s
engaging in a sexual act with the man was irrelevant to any issue at trial. The trial court
allowed the defense to cross-examine West about how she got to Sparks Street and the
inconsistency between her statement and her trial testimony. The trial court did not abuse
its discretion by ruling that the defense could not cross-examine West about her engaging in
prostitution just before the crimes.

                                             -10-
                           B. Admissibility of West’s Statement

       The appellants contend that the trial court erred by allowing the State to introduce
West’s complete, typed statement to police into evidence. The State argues that the trial
court properly allowed the prosecution to introduce the statement. We conclude that the trial
court erred but that the error was harmless.

        After the defense cross-examined West, the State asked that the trial court admit her
four-page typed statement into evidence. During a jury-out hearing, the trial court found that
West’s statement was inconsistent with her trial testimony and that “the statement does
appear to have been made under circumstances that indicates it is in fact trustworthy.” The
trial court held that the statement was admissible pursuant to Tennessee Rules of Evidence
803(26), which provides an exception to the hearsay rule and allows some inconsistent
statements to be admitted as substantive evidence. The defense disagreed with the trial court,
arguing that the entire statement was not admissible because “if you broke down every
sentence in this [statement], that the vast majority of the things that are in here, have been
admitted to [by] her.” The defense also argued that the statement was not trustworthy
because West gave the statement as a result of the officers’ telling her that her co-defendants
had accused her of setting up the robbery and because she was trying to get out of jail.
Regarding the trustworthiness of the statement, the trial court said, “The Court has to make
an inquiry as to whether or not the statement was made under circumstances indicating
trustworthiness. Whether or not the statement is true, that’s a jury question.” The trial court
maintained that the entire statement was admissible.

       When the jury returned to the courtroom, the trial court announced that it was
allowing West’s statement and Advice of Rights form to be admitted into evidence; that the
statement and form would be entered as exhibits number twenty-six and twenty-seven,
respectively; and that each juror would receive a copy of the two exhibits. The trial court did
not instruct the jurors that they could consider West’s statement substantively. However,
during the jury charge, the trial court instructed the jury as follows:

                      Impeaching a witness: A witness may be impeached by
              proving that the witness has made some material statements at
              some point before the witness testified which are different from
              his or her testimony on the witness stand. However, unless
              entered as a numbered exhibit by the court and allowed to be
              taken by you back to the jury room when you deliberate, proof
              of any prior inconsistent statements may be considered by you
              only for the purpose of determining whether the witness is
              telling the truth at trial. The contents of the prior inconsistent

                                             -11-
              statement are not to be considered as proof in the trial.

                     ....

                     Prior consistent statements: Prior consistent statements
              are admissible to rehabilitate a witness or to respond to
              impeachment by a prior inconsistent statement. The prior
              consistent statements cannot be considered by the jury as
              substantive evidence and is to be used only in assessing the
              credibility of the witness. Any prior consistent statements can
              be used only as corroboration of the in court testimony of the
              witness after impeachment [by] opposing counsel.

       “[I]t is well-established that trial courts have broad discretion in determining the
admissibility of evidence, and their rulings will not be reversed absent an abuse of
discretion.” State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). Hearsay is defined as “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.” Tenn. R. Evid. 801(c).
Generally, hearsay is not admissible during a trial unless the statement falls under one of the
exceptions to the rule against hearsay. See Tenn. R. Evid. 802. Tennessee Rule of Evidence
803(26) provides a hearsay exception for a testifying witness’s prior inconsistent statement.
The statement is admissible substantively if the following conditions are satisfied:

              1. The statement must be admissible under Tennessee Rule of
              Evidence 613(b).

              2. The declarant must testify at the trial or hearing and be
              subject to cross-examination about the statement.

              3. The statement must be audio or video recorded, written and
              signed by the witness, or given under oath.

              4. The trial court must conduct a jury-out hearing to determine
              by a preponderance of the evidence that the prior statement was
              made under circumstances indicating trustworthiness.

Tenn. R. Evid. 803(26) & Advisory Commission Comments. Tennessee Rule of Evidence
613(b) provides that “[e]xtrinsic evidence of a prior inconsistent statement by a witness is
not admissible unless and until the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the witness thereon, or

                                             -12-
the interests of justice otherwise require.”

       Turning to the instant case, West’s statement to police was inconsistent with her trial
testimony on two key points. First, West testified on direct examination that she did not see
the appellants with guns. The State confronted her with her statement to police, and she said
she did not remember telling the police that the appellants had guns. Second, West testified
on direct examination that the appellants and Richardson drove a van to the victims’ home
and that she did not ride in the van with them. On cross-examination, defense counsel for
Jackson confronted West with her statement to police, and West denied telling the police
about a van.

        The appellants argue that the trial court erred by allowing West’s entire statement into
evidence as opposed to admitting only those portions of her statement that were inconsistent.
We agree. The title of Tennessee Rule of Evidence 803(26) plainly states that it applies to
prior inconsistent statements, and the Advisory Commission Comments to the rule explain
that the rule’s reference to Tennessee Rule of Evidence 613 “makes clear that only prior
inconsistent statements, and not consistent statements, are within the ambit of this rule.” Our
review of West’s statement reveals that much of it was consistent with her trial testimony.
Therefore, those consistent portions of her statement were not admissible pursuant to
Tennessee Rule of Evidence 803(26).

       The appellants also argue that the trial court erred by admitting the entire statement
into evidence because West should have been confronted with every question and answer in
her statement. Once again, we agree with the appellants. West was given the opportunity
to explain or deny only the portions of her statement regarding the guns and the van. She
was not confronted about any other parts of her statement. Therefore, even if those parts had
been inconsistent with her trial testimony, they would not have been admissible as
substantive evidence because the first factor in Rule 803(26), that the statement be admissible
under Tennessee Rule of Evidence 613(b), was not satisfied.

       Finally, the appellants argue that the trial court erred regarding the fourth factor
because the prior statement was not made under circumstances indicating trustworthiness.
Our review of the trial transcript shows that the trial court questioned West extensively
during the jury-out hearing about the circumstances in which she gave her statement to the
police. West told the court that she smoked marijuana on October 16, 2008, two days before
she gave her statement. However, she also informed the court that she told the police the
truth on October 18 and that she told them “what I saw with my own eyes.” The trial court
noted that West gave the officers specific information about her personal background, such
as her address, telephone number, and social security number, and that her statement was
“very detailed” regarding the crimes. Therefore, we cannot conclude that the trial court erred

                                               -13-
in determining by a preponderance of the evidence that Richardson made the statement under
circumstances indicating trustworthiness.

        Having determined that the trial court erred by allowing the complete statement into
evidence, we must now determine whether the error was harmless. In a related argument,
the appellants note that several portions of West’s improperly admitted statement were highly
prejudicial. For example, in the statement, West said that Jackson “[sells] crack, robs people
and he is down with that crip [s***]” and that Holloway “is known for burglary and robberies
in Bunker Hill and people don’t [f***] with him.” She also stated that the appellants
borrowed the van from “some dude” and that the appellants “gave him some dope and money
for letting them use it.” When the police asked her why the appellants left the house but
returned, she said, “[Richardson] asked Holloway if the people seen their face and [Jackson]
said ‘I don’t give a [f***] it is cripping with me’. [Jackson] said ‘I will kill them.’”

       At the motion for new trial hearing, the trial court found that even if portions of
West’s statement were consistent with her testimony, the trial court properly instructed the
jurors that they could not consider a witness’s prior consistent statements as substantive
evidence. However, just prior to the instruction on consistent statements, the trial court
informed the jury that “unless entered as a numbered exhibit by the court and allowed to be
taken by you back to the jury room when you deliberate, proof of any prior inconsistent
statements may be considered by you only for the purpose of determining whether the
witness is telling the truth at trial.” The trial court admitted West’s statement as a numbered
exhibit and allowed the jury to take it into the deliberation room. Therefore, in our view, the
jury could have interpreted the trial court’s instruction on inconsistent statements to mean the
jury could consider West’s entire statement substantively.

        That said, while some of the inadmissible portions of West’s statement were
prejudicial, the evidence against the appellants was strong. Clarence Powers testified that
he spent about ten minutes with Jackson on September 16. Less than one month after the
crimes, Mr. Powers identified Jackson and Holloway as the men who robbed him on
September 17. Mr. Powers also identified the appellants at trial. West and Richardson
described the appellants’ participation in the crimes, and their versions of the events were
consistent with each other and the victims’ versions. For example, Richardson and West
both testified that Richardson stood at the door with Holloway and that Richardson knocked
on the door. Nadine Powers identified Richardson and Holloway as the individuals she saw
at the door. She also testified that she saw a dark-colored van back out of her driveway after
the robbery, and the trial court properly admitted the portion of West’s statement in which
she said the appellants used a brown and white van. Therefore, we conclude that although
the trial court erred by allowing West’s complete statement into evidence, the appellants have
failed to demonstrate that the error affected the jury’s verdicts. See Tenn. R. App. P. 36(b);

                                              -14-
State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008).

                               C. Copies of West’s Statement

        The appellants contend that the trial court erred by allowing each juror to have a copy
of West’s statement. Specifically, the appellants argue that because no other exhibits were
copied and distributed to the jury, distributing West’s statement “placed undue emphasis on
that portion of the trial.” However, Tennessee Rule of Criminal Procedure 24.1(b)(1) allows
a trial court to provide copies of exhibits to jurors “[w]hen the court deems it helpful.” In
this case, the trial court explained that it was giving each juror a copy of West’s statement
because “[i]f I gave you one document and asked you all to read it right now, it might take
another forty five minutes to an hour for all fourteen people to read that one document.
That’s why I’ve given you a copy for your notebook.” Moreover, the trial court instructed
the jury that

              the fact that you’ve been given a copy of exhibit twenty-six and
              twenty-seven does not indicate that those documents have any
              greater or less importance than any of the other exhibits . . . .
              [T]here’s no significance to the fact that you have a copy of
              exhibits twenty-six and twenty-seven, other than to save time
              when you’re looking at multiple pages.

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).

      Granted, for the reasons discussed in the previous section, the trial court should not
have distributed copies of West’s complete statement to the jury. However, it was not
improper for the trial court to give each juror a copy of the admissible portions of the
statement.

                                 D. Redaction of Statement

        The appellants contend that the trial court should have granted their motions for a
mistrial because the trial court failed to redact West’s statement before the court distributed
the statement to the jury. The State claims that the appellants have waived this issue. We
agree with the State.

       The day after the trial court admitted West’s complete statement into evidence and
distributed copies to the jury, the appellants moved for a mistrial, arguing that the trial court
should have redacted the statement because it contained prejudicial information about gang

                                              -15-
affiliations and prior bad acts. The trial court denied the motion, stating,

               The defense did not make a timely objection and the defense had
               an opportunity to object to parts of the statement if you wanted
               to. [You did] not object to parts of the statement. You said,
               “We want the whole statement out,” and I’m told this morning,
               “Well, Judge, now that the statement is in, there’s some thing
               that maybe we should have objected to.”

               If there were, and I’m not going to rule in retrospect because a
               timely objection was not made, if there had been a timely
               objection made, the Court would have conducted an inquiry and
               would have made a decision as to whether or not certain parts of
               that statement should have in fact been redacted. Since a timely
               objection was not made, it is waived.

       We agree that the appellants waived the issue by failing to request that the prejudicial
portions of the statement be redacted. See Tenn. R. App. P. 36(a); State v. Dale Jarnigan,
C.C.A. No. 296, 1989 Tenn. Crim. App. LEXIS 882, at *8 (Tenn. Crim. App. Dec. 19, 1989).
In any event, we have already determined that the admission of West’s entire statement was
harmless. Therefore, the appellants are not entitled to relief.

                                E. Sufficiency of the Evidence

        Finally, the appellants claim that the evidence is insufficient to support the convictions
because Clarence Powers misidentified a man at the appellants’ preliminary hearing as one
of the robbers and because Nadine Powers’ identification of Holloway at trial was suspect
because she told the police shortly after the crimes that she could not identify any of the
males involved. The appellants also contend that the evidence is insufficient because no
physical evidence linked them to the crimes. The State argues that the evidence is sufficient
to support the convictions. 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

                                               -16-
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 burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Taken in the light most favorable to the State, the evidence is sufficient to support the
convictions. Clarence Powers identified the appellants as the robbers within a month of the
crimes and at trial. Nadine Powers identified Holloway at trial as the man who bound her
with duct tape. The jury heard and assessed the victims’ testimony and determined that their
identifications of the appellants were credible and reliable. Moreover, Richardson and West
testified that they participated in the crimes with the appellants and that they saw the
appellants enter the victims’ home. Their versions of the events were consistent with the
victims’ testimony. Although Jackson testified that he was with Lenwood Reed at the time
of the crimes, the jury, not this court, determines the credibility of the witnesses and the
weight and value to be given their testimony. Therefore, the evidence is sufficient to support
the convictions.

                                       III. Conclusion

       Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the trial court erred by admitting West’s complete statement to police into evidence.
However, we conclude that the error was harmless and affirm the appellants’ convictions.


                                                     _________________________________
                                                     NORMA McGEE OGLE, JUDGE




                                              -17-
