        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE                                     04/01/2020
                          AT JACKSON
                               September 5, 2018 Session

                STATE OF TENNESSEE v. MARCELLUS HURT

                  Appeal from the Criminal Court for Shelby County
                      No. 15-04826       Lee V. Coffee, Judge


                             No. W2017-02179-CCA-R3-CD


ROBERT H. MONTGOMERY, JR., J., dissenting in part; concurring in part.

       Respectfully, I disagree with the majority opinion’s conclusions that the victim’s
testimony regarding the cost of the repairs to his car was inadmissible hearsay and that
admission of this evidence necessitates a new trial for the vandalism conviction.

        The record reflects that the victim testified the damage to his car was repaired and
that the prosecutor asked the victim, “And do you know what it [cost] to have that
repaired?” Trial counsel objected on the basis that the question elicited inadmissible
hearsay evidence. The trial court overruled the objection and permitted the victim to
testify that the repairs cost $8,700 and that the victim paid a $500 deductible.

        The majority opinion concludes that this testimony was “based upon” inadmissible
hearsay and was, therefore, inadmissible. I disagree. Hearsay “is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). “A declarant is a ‘person
who makes a statement,’” and “hearsay occurs when a declarant makes an out-of-court
statement to a witness who repeats it in court.” Neil P. Cohen et al., Tennessee Law of
Evidence § 8.01[4][c], [e] (6th ed. 2011). The victim, based upon his personal
knowledge and experience of having the car repaired, testified regarding the cost to repair
the damage. Likewise, the testimony does not involve an out-of-court statement. The
testimony is not hearsay. The victim was asked if he knew the repair cost, and his
response was within the victim’s “personal knowledge of the matter.” Tenn. R. Evid.
602. As a result, I conclude that the trial court did not err by allowing the victim to
testify about his personal knowledge of the repair cost. I would affirm the Defendant’s
vandalism conviction.

       I join the majority opinion in all other respects.


                                               ____________________________________
 ROBERT H. MONTGOMERY, JR., JUDGE




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