         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 21, 2001
                   STATE OF TENNESSEE v. JERRY BREEDING
                  Direct Appeal from the Criminal Court for Overton County
                            No. 3820    Leon C. Burns, Jr., Judge



                    No. M2001-00043-CCA-R3-CD - Filed January 25, 2002


The defendant appeals his conviction of aggravated robbery for the armed robbery of the Union Bank
and Trust in Rickman, Tennessee. We conclude that the defendant did not prove his claim of
ineffective assistance of counsel and the record supports the trial court’s finding that the defendant
personally waived his right to testify. Furthermore, the record reveals that the defendant introduced
evidence about an uncharged crime in order to impeach testimony by a witness for the state and,
therefore, cannot challenge the introduction of such evidence on appeal. The trial court properly
fulfilled its duty to act as a thirteenth juror. In addition, there is sufficient evidence to support the
defendant’s conviction for aggravated robbery. The judgment of the trial court is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT, JR., JJ., joined.

Michael R. Giaimo, Livingston, Tennessee, for the appellant, Jerry Breeding.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
William Edward Gibson, District Attorney General; and Owen G. Burnett, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                              OPINION

         The defendant, Jerry Breeding, was indicted for theft of property with a value of over ten
thousand dollars, unlawful possession of a handgun, and two counts of aggravated robbery. The trial
on the unlawful possession of a handgun charge was severed by an agreed order. After a trial on the
remaining charges, a jury found the defendant guilty of aggravated robbery and assessed a fine of
eighteen thousand dollars. The trial court imposed a fine of eighteen thousand dollars and ordered
the defendant to serve thirty (30) years in prison as a career offender. The defendant filed a timely
motion for a new trial, which was denied by the trial court. A timely notice of appeal followed. The
following four issues are raised in this appeal: (1) whether there was sufficient evidence to support
the conviction for aggravated robbery, (2) whether the defendant received effective assistance of
counsel, (3) whether the trial court erred by allowing the state to question a witness about the
defendant’s uncharged criminal conduct, and (4) whether the trial court failed to perform its function
as thirteenth juror.
                                               FACTS
        Diane Sidwell and Vickie Harvey, tellers at the Union Bank and Trust in Rickman,
Tennessee, testified at the defendant’s trial about a bank robbery that occurred in March of 1996.
Ms. Sidwell was working behind the teller counter when two men walked into the bank wearing
stockings over their faces. One of the men had a gun and ordered Ms. Sidwell and Ms. Harvey to
“get [their] hands up!” Ms. Sidwell immediately hit the silent alarm button located in her teller
window. While the two tellers stood with their hands in the air, the gunman went behind the counter
and emptied each teller’s cash drawer into a cloth bag. Then the two men left the bank. Ms. Sidwell
sounded the alarm a second time and went to lock the bank’s door. As she was locking the door,
she heard gravel spin and saw a light blue Mercury Cougar leaving the bank parking lot. Ms.
Sidwell watched the car until it was out of sight and then called the Sheriff’s Department to report
the robbery. Ms. Sidwell could not identify either of the men because of the stockings but believed
both men were Caucasian. She also noticed that they were both wearing gloves. Ms. Sidwell was
not able to “identify” the license plate number of the car she saw leaving the bank after the robbery.
At the request of police, she viewed a light blue Mercury Cougar a few hours after the robbery.
Although Ms. Sidwell was unable to positively identify it as the car she saw earlier, she testified that
it looked “exactly like” the light blue Mercury Cougar she saw after the robbery.

         Ms. Harvey’s testimony was substantially similar to Ms. Sidwell’s. Ms. Harvey indicated
that she followed Ms. Sidwell to lock the door to the bank and also saw a light blue Mercury Cougar
leaving the bank parking lot. Ms. Harvey observed that the driver of the car was wearing a stocking
over his face but was not able to “identify” the car’s license plate number. Later that afternoon, Ms.
Harvey was asked to independently view the same light blue Mercury Cougar as Ms. Sidwell. Like
Ms. Sidwell, she indicated that it looked “exactly like” the one she saw leaving the bank after the
robbery. Both tellers also testified that five hundred dollars in bait money was taken from each of
their teller drawers. The bait money was exclusively in ten-dollar bills.

        Randy Dodson, an assistant security officer for the Union Bank and Trust in Rickman,
Tennessee, was called pursuant to bank policy after the robbery occurred. Mr. Dodson prepared a
report indicating that a total of $17,594.00 had been stolen from the bank. This amount included one
thousand dollars in bait money. As a matter of course, bait money is bundled together and placed
in each teller’s drawer with the rest of the money. The serial number of each bait bill is recorded on
a form, which also identifies the teller drawer where the bait money is located. The bait money is
not otherwise identifiable to someone other than the teller. Both Ms. Sidwell and Ms. Harvey had
five hundred dollars in bait money in their teller drawer on the day of the robbery. Mr. Dodson
identified the two bait money forms that listed the serial number for each of the bills that were taken
from Ms. Sidwell’s and Ms. Harvey’s drawer.

         Mr. Dodson’s wife, also a bank employee, verified that she personally prepared the bait
money taken from Ms. Harvey’s drawer. Ms. Dodson testified that the serial numbers listed on the
form were in her handwriting. During her testimony, Ms. Dodson was handed a ten-dollar bill and
asked to determine whether it matched the serial number for any of the bills that she had prepared
as bait money for Ms. Harvey’s drawer. Ms. Dodson testified that the ten-dollar bill was one of the
bait bills taken from Ms. Harvey’s teller drawer.

         Terry McBride and Gene Johnson, employees at Gene Johnson’s Tires, testified about the
ten-dollar bill identified by Ms. Dodson. Mr. McBride testified that the defendant used the ten-dollar
bill to pay on his account a week after the robbery. Mr. Mc Bride had been alerted by the FBI that




                                                  -2-
the defendant was suspected of committing the robbery and had been asked to watch for ten-dollar
bills. At approximately eight o’clock a.m., one week after the robbery, the defendant paid thirty
dollars on his account with four five-dollar bills and one ten-dollar bill. Mr. McBride took the ten-
dollar bill out of the register after the defendant left and gave it to his boss, Gene Johnson. Later that
day, he saw someone from the sheriff’s office come to the station and examine the bill. At ten-forty
p.m., an FBI agent came to the station to retrieve the bill. At that time, Mr. McBride was asked to
initial the bill in order to identify it as the one he had taken from the defendant earlier that day.
        Mr. Johnson, the owner of the station, verified that the FBI had requested that Mr. Johnson
and his employees hold any ten-dollar bills passed by the defendant. A week later, Mr. McBride
brought him a ten-dollar bill, which the defendant had used to pay on his account. Mr. Johnson
immediately called the sheriff’s department to report what had happened and to give them the serial
number from the bill. Later, someone from the sheriff’s department asked Mr. Johnson to hold the
bill. Mr. Johnson put the bill in an envelope and placed the envelope in his safe. He eventually
turned the bill over to an FBI agent, who came to the service station to pick it up later that evening.

         Debbie Moody was the defendant’s girlfriend at the time of the robbery. Her sister, Tammy
Arney, testified at the defendant’s trial. Ms. Arney testified that at the time of the robbery, her sister
owned a light blue Mercury Cougar, which was the one identified by both bank tellers. She further
testified that she saw the defendant driving her sister’s car near the bank on the day of the robbery.
She also noticed that there was a male passenger in the car with the defendant.

         Michael Moody, Debbie Moody’s brother, also testified that he saw a light blue Mercury
Cougar on the day of the robbery. Mr. Moody was working on his car in his driveway when he saw
two men in a light blue Mercury Cougar drive past his house. Five or ten minutes later, he saw the
Cougar return heading in the other direction. Both times the Cougar was following a tan four-door
car. A few weeks later, he saw the defendant riding in the Cougar with his sister, Debbie Moody.
The defendant asked Mr. Moody to come to his side of the car where the defendant showed him a
“little blue bag” full of money. Mr. Moody also observed that the defendant bought a new set of
chrome wheels, a new mig welder, a new air compressor, and had his car painted after the robbery.

        At the time of the robbery, Bonnie Moody, Michael and Debbie Moody’s mother, lived on
the same road as Michael Moody. She testified that on the day of the robbery she also saw what she
believed to be her daughter’s light blue Mercury Cougar following a light tan car past her house.
The road was a dead end with a wooded area at the end. Ms. Moody saw the two cars turn onto a
dirt logging road and then return past Ms. Moody’s home about ten minutes later. Ms. Moody could
not, however, identify the occupants of either car.

        During the testimony of Tammy Arney, Bonnie Moody, and Michael Moody, questions were
raised about an unrelated criminal charge against the defendant, which had been dismissed. The
specific facts of the charge were not discussed. However, the charge apparently involved both
Michael Moody and the defendant. Both Ms. Moody and Ms. Arney admitted to disliking the
defendant because of the unrelated incident involving one of their family members.

        Vincent Bryant, a childhood acquaintance of the defendant, testified that he was at a gas
station in Rickman on the day of the robbery. Mr. Bryant recalled that there was a ski boat with girls
in bikini swimwear at the gas station. While watching the girls, Mr. Bryant noticed that the
defendant and the defendant’s brother were also at the gas station. He observed that they were in a
Mercury Cougar that looked to be a grayish or silverish color. Mr. Bryant could only see the rear




                                                   -3-
of the Cougar because the ski boat was parked in between Mr. Bryant and the Cougar.
       A friend of the defendant, Lonnie Greenwood, testified that he was riding in the car with the
defendant and Debbie Moody a few years after the robbery. According to Mr. Greenwood, the
defendant told him that the Union Bank and Trust in Rickman was a “pushover” as they drove past
the bank. Mr. Greenwood’s testimony was part of a plea bargain agreement on a charge that was
pending against him when he gave police a statement inculpating the defendant in the instant
charges.

        Michael Hollerman, an inmate who was incarcerated with the defendant prior to his trial for
the instant charges, testified about statements the defendant made to him concerning the robbery.
According to Mr. Hollerman, the defendant admitted to him that he had robbed the Union Bank and
Trust in Rickman. The defendant also indicated that his girlfriend’s mother had seen him after the
robbery driving a car that fit the description of the car used in the robbery. Mr. Hollerman reported
his conversations with the defendant to authorities because he was concerned that the defendant was
going to harm his girlfriend’s mother.

        Two witnesses testified for the defendant. Paschal Denson testified that he lived on the same
road as Bonnie and Michael Moody. On the day of the robbery, Mr. Denson was home during the
time that Bonnie and Michael Moody testified that they saw a light blue Mercury Cougar drive past
their homes and return a few minutes later. According to Mr. Denson, he was waiting for the mail
to arrive and was watching outside. Mr. Denson did not see a blue Mercury Cougar drive past his
home. Additionally, Bobby Roberts testified that he saw the defendant immediately after the robbery
at the defendant’s home, which was in Gainesboro, Tennessee. Mr. Roberts was at a hardware store
near the Union Bank and Trust in Rickman when he heard on a police scanner that the bank had been
robbed. He immediately drove to the defendant’s home and observed the defendant standing in “his
garage smoking a cigarette.”


                                            ANALYSIS

       The defendant raises four issues in this appeal: (1) whether there is sufficient evidence to
support the defendant’s conviction, (2) whether he received effective assistance of counsel, (3)
whether the trial court properly allowed testimony concerning an uncharged crime allegedly
committed by the defendant, and (4) whether the trial court fulfilled its role as a thirteenth juror.


                                    I. Sufficiency of Evidence

        The defendant contends that the evidence is insufficient to support the jury’s finding that he
committed aggravated robbery. The defendant concedes that there was sufficient evidence to
establish that a robbery was committed but argues that the evidence was insufficient to identify him
as the person who committed the robbery.

        The defendant has the burden of demonstrating to this Court that the evidence is insufficient
because a verdict of guilt removes the presumption of innocence and replaces it with a presumption
of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). When an accused challenges the
sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential




                                                 -4-
elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443
U.S. 307, 322-25, 99 S. Ct. 2781 (1979), 61 L. Ed. 2d 560. On appeal, the state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of the witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, not this Court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). This Court may not substitute its own inferences for those drawn by the trier of fact from
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

        The determination of identity is a question of fact for the jury to determine, after
consideration of all the evidence. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993).
Furthermore, the identity of an accused may be established by either direct evidence, circumstantial
evidence, or a combination of the two. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). In
the instant case, there was no direct evidence to establish the identity of the perpetrator. However,
a conviction may be based entirely on circumstantial evidence when the facts are “‘so clearly
interwoven and connected that the finger of guilt is pointed unerringly at the defendant and the
defendant alone.’” State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985) (quoting State v. Crawford,
470 S.W.2d 610, 613 (1971)). There must be an evidentiary basis upon which the jury can “exclude
every other reasonable theory or hypothesis except that of guilt.” Pruitt v. State, 460 S.W.2d 385,
390 (1970). It is important to keep in mind, however, that “the standard for appellate review is the
same whether the conviction is based upon direct or circumstantial evidence.” State v. Vann, 976
S.W.2d 93, 111-12 (Tenn. 1998) (appendix).

        Although circumstantial in nature, we conclude that the evidence taken as a whole is
sufficient to support the defendant’s conviction for aggravated robbery. Viewed in the light most
favorable to the state, the evidence in the instant case established the following facts. Two, masked,
Caucasian men robbed the Union Bank and Trust in Rickman at gun point. One of the men fled in
a light blue Mercury Cougar. The defendant’s girlfriend owned a light blue Mercury Cougar,
identified by both bank tellers as looking “exactly like” the car they saw fleeing the bank after the
robbery. Two witnesses, Tammy Arney and Vincent Bryant, observed the defendant driving his
girlfriend’s light blue Mercury Cougar on the day of the robbery. A week after the robbery, the
defendant passed a ten-dollar bill at a service station, which was later identified as part of the five
hundred dollars in bait money that was stolen from the bank. A few weeks after the robbery,
Michael Moody saw the defendant with “a little blue bag” that was full of money. While driving
past the bank sometime after the robbery, the defendant told Lonnie Greenwood that the bank was
a “pushover.” Finally, the defendant told Michael Hollerman that he had robbed a bank and was
afraid that the authorities were “on to him.” This issue is without merit.


                              II. Ineffective Assistance of Counsel

        The defendant contends that he received ineffective assistance of counsel at his trial. We
begin by noting that the defendant’s trial counsel filed a motion to withdraw after the motion for a
new trial had been filed but before the trial court heard the motion. The trial court granted the
motion to withdraw and appointed new counsel to represent the defendant in the hearing on his
motion for a new trial and on appeal. At the defendant’s request, new counsel amended the motion
for a new trial to include a claim of ineffective assistance of counsel. As this Court has previously
cautioned and the trial court reiterated to this defendant, ineffective assistance of counsel claims are
best pursued in a post-conviction petition rather than on direct appeal. Indeed, once the merits of



                                                  -5-
the issue are addressed by this Court on direct appeal, the defendant may not revisit the issue in a
post-conviction petition. See State v. Anderson, 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992). The
defendant expressly acknowledges the admonitions of the trial court and this Court but proceeds with
his ineffective assistance of counsel claim in this direct appeal.
         The defendant argues that his trial counsel was ineffective because (1) she failed to
investigate the mental illness of Lonnie Greenwood, a state witness, and to impeach Mr. Greenwood
on cross examination with information about such mental illness, (2) she failed to call Debbie
Moody, the defendant’s former girlfriend, to testify, (3) she failed to subpoena or call as witnesses
various persons requested by the defendant, (4) she failed to subpoena business records from the
service station where the defendant allegedly passed bait money, and (5) she refused the defendant’s
request to testify on his own behalf. Encompassed in the defendant’s argument concerning his
ineffective assistance of counsel claim is a claim that the defendant was denied his fundamental right
to testify. Because the analysis for such a claim differs from an ineffective assistance of counsel
claim, we will address that issue separately.

        A claim of ineffective assistance of counsel raised on direct appeal is a mixed question of law
and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Questions concerning the credibility of
the witnesses, the weight and value to be given testimony, and the factual issues raised by the
evidence are to be resolved by the trial judge. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).
On appeal, we are bound by the trial court's findings of fact unless we conclude that the evidence in
the record preponderates against those findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.
App. 1990). The trial court's conclusions of law, however, are reviewed de novo. Fields v. State,
40 S.W.3d 450, 457-58 (Tenn. 2001). Thus, a trial court’s findings of fact are reviewed de novo
with a presumption of correctness, while a trial court's conclusions of law are reviewed de novo with
no presumption of correctness.
        In order to succeed on an ineffective assistance of counsel claim, the defendant must prove
that the attorney’s performance was deficient by showing that the advice given or services rendered
fell below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). In addition, the defendant must prove that he was prejudiced by his
counsel’s deficient performance by showing that the result of the trial proceeding would have been
different but for the attorney’s error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984); Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). The burden is
on the defendant to prove both prongs of the test by clear and convincing evidence. State v. Burns,
6 S.W.3d 453, 461 n.5 (Tenn. 1999) (relying on State v. Anderson, 835 S.W.2d 600, 607 (Tenn.
Crim. App. 1992).

        In reviewing counsel's conduct, a “fair assessment . . . requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689, 104 S. Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation as long as choices are informed ones based
upon adequate preparation. Henley, 960 S.W.2d at 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982).

       In the instant case, the defendant’s former counsel testified at the evidentiary hearing on the
defendant’s motion for a new trial. She testified that she made every effort to subpoena every
witness that the defendant requested but acknowledged that she was unable to locate some of the




                                                   -6-
witnesses. The trial record reveals that she advised the defendant that she had not been able to
subpoena several witnesses who could be important to the defense. She inquired, on the record,
whether the defendant wished to proceed with the trial on that day without such witnesses. The trial
judge also questioned the defendant, on the record, about whether he understood what trial counsel
was saying and whether he wished to proceed. The defendant indicated that he understood and
consistently responded that he wished to proceed with the trial without the witnesses. With respect
to the defendant’s allegation that trial counsel refused his request to call Debbie Moody as a witness,
trial counsel testified that Ms. Moody appeared in the courtroom during the middle of the trial and
said that she would hurt the defense if called as a witness. Trial counsel made a tactical decision not
to call Ms. Moody based on her belief that Ms. Moody’s testimony would not be beneficial to the
defense. The defendant was not present during the conversation between Ms. Moody and trial
counsel but was later informed by trial counsel that Ms. Moody would not be testifying because her
testimony would not help the defense.

        After hearing all the evidence, including testimony by the defendant, the trial court found that
the defendant had failed to prove that he was prejudiced by trial counsel’s alleged errors. We agree.
Bare allegations are insufficient to support proof of the claim. Indeed, when an ineffective assistance
of counsel claim is predicated upon counsel’s failure to present witnesses or introduce evidence, such
witness’s testimony and evidence should be offered at the evidentiary hearing in order for the trial
court to determine whether the failure to call a witness or introduce evidence prejudiced the
defendant. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). This defendant did
not present testimony by Ms. Moody or any of the other people that he claims should have been
called as witnesses to prove that their testimony would have helped the defense had they testified.
The business records of the service station were not introduced to prove that they contained
exculpatory information. The mental health records of Mr. Greenwood, alleged to have a lengthy
history of serious mental illness, were not introduced to show what, if any, effect they would have
had on Mr. Greenwood’s credibility if they had been used to impeach his trial testimony.

       We conclude that the defendant has not proven by clear and convincing evidence that the
outcome of his trial would have been different but for the alleged errors made by trial counsel.
Because the defendant must prove both that trial counsel’s performance was deficient and that he
was prejudiced by the deficient performance in order to prevail on an ineffective assistance of
counsel claim, we need not reach the question of whether trial counsel’s performance was deficient.
Henley, 960 S.W.2d at 580; Goad, 938 S.W.2d at 370. Accordingly, the trial court’s finding that the
defendant received effective assistance of counsel is affirmed.


                                         III. Right to Testify
         Encompassed within the defendant’s allegation that he received ineffective assistance of
counsel is the assertion that he was denied the right to testify. Specifically, the defendant alleges
that he repeatedly asked trial counsel to call him as a witness and that after advising the defendant
that it was not in his best interest to testify, trial counsel refused to call the defendant as a witness.
The defendant maintains that he never acquiesced to his attorney’s request that he not testify and that
the decision not to testify was the unilateral decision of his attorney.

       We begin by noting that the Tennessee Supreme Court, in Momon v. State, adopted a
procedural safeguard to ensure that all future criminal defendants are aware of their right to testify
and that they personally waive that right. 18 S.W.3d 152, 157 (Tenn. 1999). This procedural




                                                   -7-
requirement, however, was not a new constitutional rule that required retroactive application. Id.
at 162-63. The defendant acknowledges that the procedural requirement is, therefore, inapplicable
to this case because the supreme court’s decision in Momon was filed after the defendant’s trial. The
defendant, however, cites to Momon to “underscore the fundamental nature of [the right to testify].”
         Tennessee courts have long recognized that a criminal defendant has a fundamental
constitutional right to testify. Momon, 18 S.W.3d at 157. Only the defendant may effectuate a valid
waiver of this right. Id. at 161. In determining whether the defendant has personally waived the
right to testify, this Court should “indulge every reasonable presumption against the waiver of a
fundamental right.” Id. at 162. The waiver of a defendant’s right to testify will not be presumed
from a silent record. Id. “In the absence of evidence to show that [a] defendant personally waived
[the] right to testify, we must presume that he did not.” State v. Simmons, No. M2000-01199-CCA-
R3-CD, 2001 Tenn. Crim. App. LEXIS 359 at * 6 (Tenn. Crim. App., at Nashville May 11, 2001).

        In the instant case, the defendant’s trial counsel corroborated that the defendant repeatedly
told her, both before and during the trial, that he wanted to testify. She consistently responded to
the defendant’s requests by advising him against testifying. However, she also testified that it was
ultimately the defendant’s decision whether to testify. Trial counsel informed the defendant of the
basis for her advice not to testify. In her opinion, the defendant’s testimony would likely be
impeached with his prior convictions; his testimony would possibly open the door to questioning
about other bad acts; and she observed that the defendant’s version of the events was not consistent
with that of other witnesses. Trial counsel testified that she “knew he should never testify” but
maintained that the final decision not to testify was made by the defendant. After being repeatedly
advised that it was not in his best interest to testify, the defendant said “okay” and followed his
attorney’s advice.

       The defendant denies ever agreeing with trial counsel not to testify. According to the
defendant, he reiterated his request to testify even after his trial counsel advised him against it. The
defendant testified that he believed that it was his decision whether to testify but that trial counsel
refused to call him as a witness. In the defendant’s words, “She wouldn’t put me up there.”

        We conclude that the record does not preponderate against the trial court’s finding that the
defendant personally waived his right to testify. Although trial counsel strenuously advised the
defendant not to testify on numerous occasions, the ultimate decision not to testify was the
defendant’s. The defendant admitted that he knew that he had a right to testify and that he knew that
the decision whether or not to testify was his to make. Furthermore, the record reveals that the
defendant was not afraid to insist upon a course of action different from that advised by his counsel.
He made the final decision not to request a change of venue against the strong advice of his trial
counsel. He also made the final decision to pursue an ineffective assistance of counsel claim on
direct appeal against the strong advice of both the trial court and his appellate counsel. Based upon
such information, the trial court was within its discretion to accredit trial counsel’s testimony on the
issue and conclude that the defendant made the decision to waive his right to testify. This issue is
without merit.


                 IV. Admission of Testimony Concerning Uncharged Crimes

       The defendant next alleges that the trial court erroneously admitted testimony by a state’s
witness, Bonnie Moody, about a prior criminal charge against the defendant, which had been



                                                  -8-
dismissed. The criminal charge to which the defendant refers stemmed from an allegation that the
defendant had inappropriate sexual relations with a minor, Jamie Moody. The state did not question
Bonnie Moody, Jamie Moody’s aunt, about the prior criminal charge during direct examination.
Defense counsel, however, questioned her about the charge on cross-examination in order to show
that Ms. Moody had a bias against the defendant. Defense counsel did not go into the specifics of
the charge but questioned Bonnie Moody about whether she had “hard feelings” for the defendant
because of the prior criminal charge. In response, the prosecution attempted to get into the specifics
of the charge during re-direct examination of Ms. Moody. We note, however, that the trial court did
not allow the state to question Ms. Moody about the details of the charge but instead immediately
interrupted the prosecutor, admonished him for asking the question, and instructed the jury not to
consider the testimony about such charge in their determination of the defendant’s guilt.

        In Tennessee, evidence that a criminal defendant has committed some other crime or bad act
independent of that for which he is charged is generally inadmissible. Tenn. R. Evid. 404(b); State
v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993). However, if evidence that a defendant has committed
an act separate and apart from the one for which the defendant is on trial is relevant to some material
matter at issue in the case on trial and if its probative value is not outweighed by the danger of its
prejudicial effect, the evidence may be admitted. Tenn. R. Evid. 404(b); Howell, 868 S.W.2d at 254.
Furthermore, because of the risk of unfair prejudice to the defendant, Rule 404(b) establishes special
procedures which must be followed before evidence of prior bad acts may be admitted. See Tenn.
R. Evid. 404(b), Advisory Committee Comments. When a trial court substantially complies with
the procedural requirements of the rule, its determination will not be overturned absent an abuse of
discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

        In the instant case, the trial court did not admit evidence of the prior criminal charge over the
defendant’s objection. Therefore, the predicate procedural requirements for admission of such
evidence were not applicable. Indeed, it was the defendant who first introduced evidence of the fact
that such a prior charge existed in order to show the bias of Bonnie Moody. When the state
attempted to question Ms. Moody about the specifics of the charge on re-direct, the defendant
objected, and the trial court sustained the objection. Further attempts by the prosecution to elicit the
same information were interrupted by the trial court even before the defendant had the opportunity
to object. In addition, the trial court gave a curative instruction to the jury instructing them to only
consider the prior criminal charge in determining whether Ms. Moody had a bias against the
defendant. The only testimony that Bonnie Moody gave about the prior criminal charge after the
trial court’s curative instruction to the jury was that her previous testimony about the charge was
truthful and that she took the charge “very seriously.”
         We conclude that the trial court did not err with respect to the admission of testimony
regarding the defendant’s prior criminal charge. The defendant made a tactical decision to question
Bonnie Moody about the existence of the charge in order to show her bias. He may not now
challenge the admission of that evidence on appeal. Furthermore, the trial court did not admit
testimony about the specific facts of the charge. In contrast, the trial court sustained two objections
to the state’s attempt to elicit such testimony and gave a curative instruction to the jury. This issue
is without merit.


                                     V. Thirteenth Juror Role

        In the defendant’s motion for a new trial, the defendant asked the trial court to evaluate the




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sufficiency of the evidence and the weight of the evidence from the thirteenth juror standpoint. The
defendant contends that the trial court failed to perform its mandatory function as thirteenth juror.
According to the defendant, the trial court should have re-weighed the evidence and set aside the
jury’s verdict. The defendant claims that the trial court gave undue deference to the jury’s resolution
of factual conflicts and determinations of witness credibility.

         Rule 33(f) of the Tennessee Rules of Criminal Procedure imposes upon a trial court judge
the mandatory duty to serve as the thirteenth juror in every criminal case. Tenn. R. Crim. P. 33(f);
State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995). Approval by the trial judge of the jury’s verdict
as the thirteenth juror is a necessary prerequisite to the imposition of a valid judgment. Id. A trial
court’s role as a thirteenth juror, however, is distinguishable from its role in evaluating the
sufficiency of the evidence. In performing the duties of a thirteenth juror, the trial court is
concerned about whether the verdict is supported by the weight of the evidence presented at trial.
State v. Moats, 906 S.W.2d 431, 433-35 (Tenn. 1995). The trial court should independently re-
weigh the evidence and assess the credibility of the witnesses.

         This Court may presume that the trial court has performed its function as thirteenth juror
when the trial judge overrules a motion for new trial. Carter, 896 S.W.2d at 122. However, if the
record reflects that the trial court was dissatisfied with or disagreed with the jury’s verdict or the
weight of the evidence, made statements indicating that the trial court misunderstood its
responsibility or authority to act as thirteenth juror, or absolved itself of the responsibility of acting
as thirteenth juror, this presumption does not apply, and this Court must grant a new trial. Moats,
906 S.W.2d at 434-36.
       In the instant case, the trial court, at the hearing on the motion for new trial, made the
following comments:
               It was a circumstantial case and it was a case that had to be put
               together with every strand of circumstance and it went to the jury on
               a question of whether or not the State had proven beyond a reasonable
               doubt and the jury so found. And this court is of the opinion that
               there is sufficient evidence to support that verdict and their evidence
               was believable. This court has no reason to set aside from the
               thirteenth juror standpoint either or sufficiency or credibility of the
               witnesses.

                    Some of the witness were suspect. Hollerman was in prison
             and made some statements that were attributed to the defendant and
             also was cross examined about what might happen to him.
             Greenwood was in custody and testified that he pled guilty and he
             was testifying to [make a deal] and was testifying to the truth.
             Whether it was [the truth] or not was a question for the jury to
             determine.
(Emphasis added.)

        Because the trial court is obligated to make its own determination concerning the credibility
of the witnesses, the defendant argues that the trial court’s statement that “it was for the jury to
determine” the truthfulness of the suspect witness is illustrative of its failure to fulfill the role of
thirteenth juror. We disagree. This Court’s interpretation of the trial court’s findings is that the trial
court was addressing both the defendant’s insufficient evidence claim and his thirteenth juror claim.




                                                  -10-
Some of the statements were relevant to the sufficiency analysis and some were relevant to the
thirteenth juror analysis. However, it is clear from the trial court’s statement that “this court has no
reason to set aside from the thirteenth juror standpoint either or [the] sufficiency [of the evidence]”
that the trial court recognized that there was a difference. Additionally, the finding that the evidence
“was believable” demonstrates that the trial court independently weighed the evidence as a thirteenth
juror. Thus, we conclude that the trial court properly fulfilled its role as the thirteenth juror. This
issue is without merit.


                                          CONCLUSION

        We conclude that the defendant has failed to prove that he received ineffective assistance of
counsel nor does the record preponderate against the trial court’s finding that the defendant
personally waived his right to testify. Furthermore, our review of the record does not support the
defendant’s allegations that the trial court erroneously admitted evidence of an uncharged crime or
failed to perform its function as thirteenth juror. Finally, the evidence is sufficient to identify the
defendant as the perpetrator of the charged offense of aggravated robbery. Consequently, the
judgment of the trial court is affirmed.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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