           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                           March 6, 2001 Session

                   STATE OF TENNESSEE v. ORLANDO CRAYTON

                       Direct Appeal from the Circuit Court for Gibson County
                                 No. 15530     Donald Allen, Judge



                         No. W2000-00213-CCA-R3-CD - Filed June 27, 2001


The defendant, Orlando Crayton, was convicted of aggravated assault, reckless endangerment,
unlawful carrying or possession of a weapon, and two counts of vandalism under $500.00. The trial
court sentenced the defendant to 11 months, 29 days for each vandalism count, six years for
aggravated assault, two years for reckless endangerment and 11 months, 29 days for unlawful
possession of a weapon. Because the sentences were ordered to be served concurrently, the effective
sentence is six years. In this appeal of right, the defendant challenges (1) the admissibility of
evidence indicating the defendant’s gang affiliation; (2) the admission of an estimate regarding the
damage to a vehicle; and (3) the admission of a hearsay statement. The judgment is affirmed.


                     Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Orlando Crayton.

Paul G. Summers, Attorney General & Reporter; Laura E. McMullen, Assistant Attorney General;
Clayburn Peeples, District Attorney General; and Theodore Neumann, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                                    OPINION

        On February 13, 1998, at around 10:00 p.m., a fight involving the defendant, Orlando
Crayton, his friend, Courtney Von Shon Martin1, and the victim, Marcus Williams, occurred inside
a McDonald’s restaurant in Trenton. Other customers were also involved. According to the police,
several tables and chairs were destroyed inside the restaurant. Shortly after the fight moved into the

       1
           Martin was convicted of aggravated assault stemming from his involvement in the facts of this case.
parking lot, gunshots destroyed one of the restaurant’s plate glass windows and damaged a vehicle
parked in the restaurant lot. The police reported that the defendant had fired the shots.

        At trial, the victim testified that when he entered the restaurant, the defendant was speaking
to certain people in a "threatening manner," calling them "punks . . . and [saying] he’s in their
neighborhood and they ain’t going to do nothing to him." The victim recalled that when he walked
by the defendant, the defendant informed him that he was "marked" as a "hit" because he was a
"vice lord." The victim and the defendant argued and began to fight. The victim described the
altercation as a one-on-one fight until Martin attempted to intervene. At this point, the victim’s
friend hit Martin and then "everybody else jumped up." When the scuffle moved outside, the victim
saw the defendant reach into the passenger’s side of a car and grab what looked like a handgun. The
victim claimed that when the defendant passed the gun to Martin, who loaded it, he directed those
standing behind him to return to the restaurant. They discovered, however, that the door had been
locked, and Martin began shooting at the victim. According to the victim, Martin then fired at least
two shots in his direction and two more at a parked car as Martin and the defendant left the scene.
The victim also stated that a female in the Martin car had taken the weapon from under the backseat
and handed it to Martin. On cross-examination by the defense, the victim acknowledged that he once
shot at police officers in North Carolina after they caught him selling illegal drugs. He also admitted
that he had a prior burglary conviction.

        Daron Sells, the owner and operator of the McDonald’s restaurant, testified that after the
incident, there was a hole in a window and numerous tables and chairs had been overturned. The
cost of a replacement window was $365.40.

        James Weaver, an investigator with the Trenton Police Department, testified that when he
arrived at the scene, there were several people in the parking lot area and several more inside the
restaurant. After learning that a shooting had occurred, he found a broken window on the north side
of the restaurant near the entrance. Officer Weaver discovered a spent round in the base of a wall.
In the parking lot, he observed a car with a window shot out and a flat tire.

        Stacy Mayberry, who was a restaurant customer, testified that he observed the argument
between "some boys from Trenton and some boys from Milan." He was still at the restaurant when
the fight "broke out." Mayberry recalled that when the fight moved outside, he heard gunshots. He
could not identify who fired the weapon. Mayberry learned after the police arrived that a window
and wheel rim of his Chevrolet Caprice had been struck by bullets. He testified that the repair
estimate was $295.85.

        Eric Mayberry, was with his brother Stacy on the night of the crimes. He testified that the
fight began when the victim struck the defendant. Soon afterward, "everybody started fighting."

        At trial, Martin testified that he alone was responsible for the shooting. He stated that after
the fight moved outside, he went to his car, opened the door, grabbed a pistol and fired shots at a
small crowd of people standing near the entrance of the restaurant. Describing himself as a friend


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of the defendant, Martin claimed that he had left a basketball game just before arriving at the
McDonald’s. He had driven to the restaurant in his white Chevrolet Impala. The defendant rode
with Cecelia Adams. Martin contended that the fight began when the victim struck the defendant
from behind and then some 12 people "started jumping on him." He insisted that the defendant did
not hand him the gun and that the defendant had no knowledge of any gun in his car. Martin testified
that after he fired the shots, the defendant "jumped" in the backseat of his Impala and that he then
drove away. Martin acknowledged that he "got rid" of his gun about 10 minutes following the
incident. He contended that Ms. Adams was never in his car and that the defendant was nowhere
near the weapon when it was fired. Martin testified that he went for his gun because eight or more
people had "jumped" him and pursued him and the defendant as they ran outside.

        The defendant testified that he attended the basketball game on the night at issue and was a
passenger in Ms. Adams’ vehicle as she drove to the restaurant. As he exited the restaurant’s
bathroom, he heard Martin yell "[W]atch out." The defendant claimed that he was struck by the
victim and fell to the ground when the victim continued his assault. He was helped outside after the
victim discontinued the attack. He claimed that he found Martin’s vehicle when he heard the
gunshots. He further claimed that he did not know who fired the shots until Martin confessed. The
defendant, who conceded he was drunk, contended that he never saw a gun in Martin’s possession.

         During the rebuttal stage of the trial, Guy Steven Howe of the Trenton Police Department
testified that as he transported the defendant and Martin from Milan to Trenton after their arrest,
Martin asked what would happen to them. The officer revealed that after informing them that they
were being held on a "drive-by" and asking why the shooting had occurred at a McDonald’s, Martin
said, "[T]hat’s where we found him . . . . [T]hat’s where he’s getting his ass shot at."

                                                    I

       The defendant first asserts that the trial court erred by admitting character evidence
concerning his gang affiliation. In particular, he maintains that he was prejudiced by testimony that
he had put "a hit out" on the victim because he was a "vice lord."

          Rule 404 of the Tennessee Rules of Evidence governs the admissibility of character evidence.
Although the rule is usually applied to other crimes, wrongful acts, or misconduct, the language of
the rule does not require that the acts covered by the rule be either criminal or wrongful. It states that
"[e]vidence 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." Tenn. R. Evid. 404(b). According to
the clear language of the rule, evidence of an act that may be neither criminal nor overtly wrongful
is still subject to the requirements of Rule 404(b) if the state introduces the evidence to prove that
a defendant acted in conformity with a given character trait. See Woodson v. Porter Brown
Limestone Co., 916 S.W.2d 896, 908 (Tenn. 1996) (evidence relating to carefulness excluded); State
v. Christopher David Wilson, No. 02C01-9502-CC-00045, slip op. at 18 (Tenn. Crim. App., at
Jackson, Dec. 1, 1997) (Rule 404(b) not limited to other crime evidence). The general rule
excluding such evidence is based on the recognition that the evidence may lead a jury to convict a


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defendant for an apparent propensity or disposition to commit a crime regardless of the strength of
the evidence concerning the offense on trial. State v. Bordis, 905 S.W.2d 214, 232 (Tenn. Crim.
App. 1995); State v. Tizzard, 897 S.W.2d 732, 743-44 (Tenn. Crim. App. 1994). In those instances
where the conduct or acts are similar to the crimes on trial, the potential for such a result increases.
Bordis, 905 S.W.2d at 232.

        In our view, evidence concerning gang affiliation is character evidence subject to Rule
404(b). Here, the defendant's character was never an issue. Although evidence of a prior act is not
admissible to prove propensity or disposition to commit a crime, it may arguably be relevant to
issues such as identity, intent, motive, or rebuttal of accident or mistake. Tenn. R. Evid. 404
Advisory Commission Comments; State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985). Therefore,
unless the evidence was relevant to a material issue such as intent or motive, the testimony should
have been excluded.

       In allowing the statement to be submitted as evidence, the trial court ruled as follows:

       [I] think [the testimony] is relevant. This is something [the defendant] apparently
       said directly to [the victim] which apparently is what started this altercation, so I
       think it is relevant.

       We agree. The victim’s testimony was relevant to establish a motive for the altercation. In
our view, the probative value of the evidence outweighed the danger of unfair prejudice.

                                                   II

       Next, the defendant claims that the trial court erred by admitting an estimate of repairs for
the parked vehicle that was damaged in the shooting. He maintains that the evidence should not
have been allowed because the person who prepared the estimate did not testify at trial. The
defendant asks that one of the two vandalism convictions be set aside.

        Initially, the state concedes that it did not establish a proper foundation to justify admission
of the estimate under the business records exception of the hearsay rule. See Tenn. R. Evid. 803(6).
The state maintains, however, that because there was sufficient evidence to convict the defendant
for vandalism under $500.00, any error was harmless.

       Business records are admissible as an exception to the rule against the introduction of hearsay
evidence. See Tenn. R. Evid. 803(6). They may be introduced by the custodian of those records or
any other qualified witness. See State v. Baker, 842 S.W.2d 261, 264 (Tenn. Crim. App. 1992). The
custodian of the records to be introduced must be able to testify as to the identity of the records, the
mode of preparation, and whether the records were made in the regular course of business at or near
the time of the recorded event. Id. In this case, the records custodian did not testify to the
authenticity of the records.



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        In our view, however, the error was harmless. There was substantial evidence to convict the
defendant for vandalism under $500.00 notwithstanding the inadmissibility of the estimate of repairs.
Here, there was evidence that the defendant handed a gun to Martin, who shot twice at Stacy
Mayberry’s car. There was also testimony that one of the shots destroyed the car window while the
other struck the wheel and flattened a tire. So long as there was some damage, the evidence was
sufficient to support the conviction for the vandalism to the car.

                                                  III

        In his last argument, the defendant contends that the trial court erred by allowing the
testimony of Officer Howe, which was offered to rebut statements made by Martin. The defendant
argues that the evidence was hearsay involving a collateral matter, too vague and ambiguous to have
probative value.

       The trial court ruled on the issue as follows:

       If Mr. Martin hadn’t testified, this statement wouldn’t be coming in at all in this trial,
       . . . but since he has testified it’s coming in strictly for impeachment purposes. . . .

        We agree. Rule 613 of the Tennessee Rules of Evidence permits the use of prior inconsistent
statements to impeach a witness. The opposing party may interrogate the witness regarding such
statements as long as the witness is "afforded an opportunity to explain or deny the same."
Tennessee Rule of Evidence 616 provides that "[a] party may offer evidence by cross-examination,
extrinsic evidence, or both, that a witness is biased in favor of or prejudiced against a party or
another witness." In discussing the proper foundation for admission of extrinsic evidence of a prior
inconsistent statement, our supreme court cited with approval the procedures traditionally employed
before the implementation of Rule 613:

       This practice required that a witness' attention be drawn to the place, persons present,
       time of the statement, and to the substance of the statement before extrinsic evidence
       of the prior inconsistent statement could be used to impeach the witness' credibility.
       The foundational requirements were to: (1) provide the witness an opportunity to
       admit, deny, or explain the prior inconsistent statement; (2) refresh the witness'
       memory; and (3) allow the witness to respond intelligently to the impeachment
       attempt.

State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998).

        Here, Martin was asked on cross-examination whether he made a statement to Officer Howe
while being transported from Milan to Trenton. Initially, Martin claimed that he could not remember
being transported to Trenton. Upon further questioning, Martin admitted to being transported to
Trenton, but then claimed he could not recall making a specific statement concerning the restaurant



                                                  -5-
shooting. Because Martin was afforded the opportunity to explain or deny the statement, Howe’s
testimony was properly allowed to impeach the statement.

        The defendant next maintains that the testimony should have been excluded because it
involved a collateral matter that was not relevant or material to his prosecution. We disagree. The
"collateral fact rule" limits the introduction of extrinsic proof of contradictory facts regarding
collateral or irrelevant matters testified about during direct examination. See State v. West, 844
S.W.2d 144, 149 (Tenn. 1992). Here, Martin testified that he acted alone and that the defendant was
not involved in the shooting. In his statement to Officer Howe, however, Martin implied that he and
the defendant had acted together in the shooting. In our view, the statement was material to Martin’s
credibility on the central issue.

        The defendant next argues that the statement was vague and ambiguous. Because the
statement involved terms such as "we" and "him" without an explanation as to who the individuals
were, the defendant argues a lack of probative value. The sole purpose of the cross-examination was
to impeach Martin’s testimony. The credibility of the witnesses, the weight to be given their
testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusively to the
jury as the trier of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). It was the
obligation of the jury to ascertain the meaning, if any, of Martin’s statements. This court may neither
reevaluate the evidence nor substitute its inferences for those drawn by the trier of fact. State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

       Finally, the defendant contends that the statement was unduly prejudicial and outweighed any
substantive probative value. See Tenn. R. Evid. 403. We disagree. Simply because evidence is
prejudicial does not mean that it must be excluded as a matter of law. See State v. Gentry, 881
S.W.2d 1, 6 (Tenn. Crim. App. 1993). In this case, the statement was probative as to the credibility
of Martin’s testimony regarding the level of the defendant’s involvement in the shooting.
Accordingly, the judgment is affirmed.



                                                       ____________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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