        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs May 8, 2012

                  STATE OF TENNESSEE v. BRIAN LE HURST

                 Appeal from the Criminal Court for Davidson County
                     No. 2008C2864 _____Steve R. Dozier, Judge




               No. M2010-01870-CCA-R3-CD - Filed December 20, 2012




J AMES C URWOOD W ITT, J R., J., concurring.

               I respectfully concur in the results in this case. My departure relates to only
one issue – the rationale for affirming the trial court’s admission into evidence a portion of
a recording of the victim’s telephone call to the police in which the victim expressed his
concern over the defendant’s behavior. Assuming that this evidence passes the hearsay
barrier as evidence of the victim’s state of mind, I would have held that the victim’s state of
mind as expressed in the recording was irrelevant to the issues on trial. I note that the
recording itself does not express the date of the telephone call, but the prosecutor’s oral, in-
court preface to the playing of the recording indicates to the trial court that the call was
placed on June 5, 2008. Given the somewhat banal comment offered on the recording and
the remoteness of nearly three weeks, I see no relevancy of the statement to the issues joined
at trial. That said, I would have also held that the error was harmless.




                                                   JAMES CURWOOD WITT, JR., JUDGE
