        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                December 7, 2010 Session

             STATE OF TENNESSEE v. GREGORY D. ROBERTS

               Direct Appeal from the Circuit Court for Fayette County
                        No. 6361    J. Weber McCraw, Judge


               No. W2010-01538-CCA-R3-CD - Filed March 30, 2011


The defendant, Gregory D. Roberts, was convicted by a Fayette County jury of illegal voting,
a Class D felony, for having intentionally voted in a November 2008 election knowing that
he was ineligible to vote due to his felony convictions for infamous crimes. He was
subsequently sentenced by the trial court as a Range II offender to four years in the
Department of Correction, with the sentence suspended to fifteen days in the county jail with
the remainder of the time on supervised probation. The defendant raises essentially three
issues on appeal: (1) whether the evidence was sufficient to sustain the conviction; (2)
whether the trial court erred by not instructing the jury to disregard a lay witness’s testimony
regarding similarities in signatures; and (3) whether trial counsel was ineffective for not
moving for a directed verdict. Following our review, we affirm the judgment of the trial
court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

John W. Leach, Memphis, Tennessee (on appeal); and Leslie Miller, Somerville, Tennessee
(at trial), for the appellant, Gregory D. Roberts.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Terry Dycus, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS
       The State’s first witness at trial was Debbie Sullivan, the Deputy Administrator of the
Fayette County Election Commission, who identified the following items that were
subsequently admitted as exhibits one through four in the case: a copy of the defendant’s
signed voter registration card, dated May 21, 2004; a page from the “voter signature list”
from the November 2004 general election, which contained the defendant’s signature and
preprinted address and social security number; an application to vote from the November
2008 general election, which contained the defendant’s hand-printed name, address, and
signature; and a page from the voter signature list from the November 2008 general election,
which contained the defendant’s signature and preprinted address and social security number.
Sullivan also identified certified copies of the defendant’s February 2008 guilty plea felony
convictions in the Shelby County Criminal Court, for which the defendant had been rendered
infamous.

       Sullivan described election day voting procedure, testifying that an individual
completes an application to vote, which contains spaces for his or her name, address, and
signature, and then takes it to the voting registrar. The voting registrar, in turn, searches for
and identifies the name on the registered voter list, checks the individual’s identification, and
has the individual sign the voter list. At that point, the registrar places his or her initials on
the application to vote, which allows the individual to take the application to the voting
machine operator in order to cast a vote. Sullivan testified that the registrar who signed the
defendant’s 2008 application to vote was Sally Rhodes.

        Sally Rhodes, who said she had been serving as a registrar at the Braden precinct for
the past four years, identified her initials on the 2008 application to vote form that contained
the defendant’s purported signature. She testified that she did not recognize the defendant,
but the procedure she was trained to follow involved comparing the voter’s name and address
to the voter list, checking it against the identification the voter produced, which was usually
either a voter identification card or a driver’s license, and then having the voter sign the voter
list before she initialed the application to vote. On cross-examination, she acknowledged that
in the November 2008 general election, fifty individuals signed the voter signature list
between the time that the defendant’s father and mother signed and the time that the
defendant’s alleged signature appeared on the list.

       Thomas Vastrick, who was accepted by the court as an expert in the field of forensic
document examination, testified on the defendant’s behalf that he had compared the
signatures in exhibits three and four to known specimens of the defendant’s signature and
found differences indicating that they were not in the defendant’s handwriting. On cross-
examination, he acknowledged that the defendant’s signature was complex, which made it
theoretically harder to duplicate, and that it was therefore possible that the signatures in
exhibits three and four were the defendant’s.

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        Mary Roberts, the defendant’s mother, testified that the defendant lived with her and
her husband and did not drive because he had no driver’s license. She said that on November
4, 2008, she and her husband left the house for the voting precinct sometime between 10:30
and 11:00 a.m. and returned no later than 11:30 a.m. The defendant was asleep in bed when
they left and was still in bed when they returned. She said she woke the defendant sometime
between 12:00 and 12:30 p.m. and that he remained at home until she drove him to work.
On cross-examination, she testified that the defendant was a private person who did not go
out much or have many friends. She, therefore, acknowledged that it was highly unlikely that
anyone had stolen his identification. She further acknowledged that they had not had any
break-ins at their home and that there was no one in the family who harbored any resentment
against the defendant.

        Thomas Roberts, the defendant’s father, corroborated his wife’s account of the
defendant’s having been asleep in bed when he and his wife left for the voting precinct, his
having been still asleep when they returned home, and his having remained at home until the
early afternoon when Mrs. Roberts drove him to work. On cross-examination, he testified
that he and his wife left their truck at home, but not the keys to the vehicle, when they went
to the voting precinct. He also acknowledged that the voting precinct was within walking
distance of their house.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

       The first five issues the defendant raises on appeal amount to a challenge to the
sufficiency of the convicting evidence. When the sufficiency of the convicting evidence is
challenged, the relevant question of the reviewing 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); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans,
838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.
App. 1992). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our supreme court stated the rationale for this rule:



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              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

        “A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).

       The defendant’s Class D conviction for illegal voting was based on his violation of
Tennessee Code Annotated section 2-19-107, which provides in pertinent part that a person
commits the offense who, “[i]ntentionally and knowing that such person is not entitled to,
registers or votes in any manner or attempts to register or vote in any manner where or when
such person is not entitled to vote under this title, including voting more than once in the
same election.” Tenn. Code Ann. § 2-19-107(1) (Supp. 2008).

        The defendant does not contest his ineligibility to vote in the November 2008 election
or his awareness of that ineligibility. Instead, he argues that the State failed to prove beyond
a reasonable doubt that he was the individual who voted under his name in that election. In
support, he cites the alibi testimony of his parents, the inability of the State’s witnesses to
identify him as the individual who voted, and the opinion testimony of his expert witness that
he was not the individual who signed his name to the application to vote and signature page
in that election. The State responds by arguing that there was sufficient evidence from
which the jury could infer the defendant’s guilt of the offense. We agree with the State.

       The State’s witnesses, although unable to identify the defendant as the individual who
voted in the 2008 election, described the system of checks and balances designed to assure
accuracy in the voting process and identified the voting documents that were introduced as
exhibits in the case, which included the 2004 documents containing the defendant’s
undisputed signatures and the 2008 documents that the defendant claims he did not sign.
The jury was under no obligation to accept the testimony of the defendant’s handwriting
expert and could have reasonably concluded, based on its own comparison, that the disputed
signatures were in the defendant’s handwriting. See State v. William S. Dedmon, No.

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01C01-9506-CC-00209, 1996 WL 518274, at *4 (Tenn. Crim. App. Sept. 13, 1996) (citing
Tennessee Rule of Evidence 901(b)(3) to support conclusion that rational trier of fact could
have reasonably concluded, based on comparison of signatures, that the defendant had forged
signature to check). The jury was also under no obligation to accept the alibi testimony of
the defendant’s parents. We conclude, therefore, that the evidence was sufficient to sustain
the defendant’s conviction for illegal voting.

            II. Failure to Instruct Jury to Disregard Witness’s Testimony

        The defendant contends that the trial court committed reversible error by not
instructing the jury to disregard Debbie Sullivan’s testimony that she saw similarities in the
undisputed and disputed signatures of the defendant. Specifically, the defendant argues that
the trial court’s failure to instruct the jury that it “must disregard” Sullivan’s testimony
“allowed the Jury to give weight to totally inadmissable lay opinion in the face of opinion
testimony from a[n] eminently qualified expert, and is unquestionably the basis of the
verdict.” The State responds by arguing, inter alia, that the defendant has waived appellate
review of this issue by his failure to include in the record either discussions about the
proposed jury charge, or the charge itself. We agree with the State.

         The trial transcript reveals that the prosecutor asked Sullivan if she had noticed
similarities in the signatures. When she replied that she had, the prosecutor asked her to
describe the similarities. At that point, the defendant objected on the basis that it called for
improper opinion testimony. The trial court allowed the State to attempt to show that
Sullivan was qualified to offer her lay opinion on the topic, but ultimately sustained the
defendant’s objection to the testimony. The defendant did not request a curative instruction
at that time, and there is nothing in the record to show what, if any, curative instruction he
proposed be included in the jury charge at the end of the proof. We, therefore, conclude that
he is not entitled to relief on the basis of this claim. See Tenn. R. App. P. 36(a) (“Nothing
in this rule shall be construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”).

                           III. Ineffective Assistance of Counsel

        As his last issue, the defendant contends that he was deprived of his rights to a fair
trial, due process of law, and the effective assistance of counsel by trial counsel’s failure to
move for a directed verdict at the close of the proof. This court has repeatedly warned that
“the practice of raising ineffective assistance of counsel claims on direct appeal is ‘fraught
with peril’ since it ‘is virtually impossible to demonstrate prejudice as required’ without an
evidentiary hearing.” State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001)

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(citations omitted). Although the defendant raised the issue of ineffective assistance of
counsel in his amended motion for new trial, the trial court made no findings of fact or
conclusions of law in its order denying the motion for new trial. Moreover, since the
transcript of the motion for new trial hearing is not included in the record, we have no way
of knowing whether the defendant presented any evidence at the hearing on his ineffective
assistance of counsel claim. As such, we decline to consider this issue. See State v. Michael
E. Lones, No. E2005-02777-CCA-R3-CD, 2007 WL 674630, at *5 (Tenn. Crim. App. Mar.
6, 2007) (concluding it would be inappropriate to address defendant’s claim of ineffective
assistance of counsel on direct appeal when no evidentiary hearing was held and trial court
had no opportunity to make findings of fact), perm. to appeal denied (Tenn. Aug. 13, 2007).

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.

                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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