             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                        February 11, 2014 Session

                      STATE OF TENNESSEE v. ALAN F. WATSON

                    Appeal from the Circuit Court for Houston County
                           No. 5018      Larry Wallace, Judge



                    No. M2013-00462-CCA-R3-CD - Filed May 8, 2014


Appellant, Alan F. Watson, was indicted by the Houston County Grand Jury for aggravated
robbery. Prior to trial, Appellant sought to suppress the evidence seized after execution of
a search warrant at his home. The trial court denied the motion to suppress. At the
conclusion of the jury trial, Appellant was found guilty of the aggravated robbery of Crystal’s
Check Cashing.1 As a result, he was sentenced to nine years in incarceration as a Range I,
standard offender. Appellant appeals, arguing: (1) that the trial court improperly denied the
motion to suppress; (2) that he was denied a fair trial when the trial court excluded evidence;
and (3) that the evidence is insufficient to support the conviction. After a review of the
evidence, we determine that the trial court properly denied the motion to suppress where the
affidavit in support of the search warrant established probable cause and did not contain false
and misleading information. Additionally, we determine that the trial court did not abuse its
discretion in excluding irrelevant evidence and that the evidence is sufficient to support the
conviction for aggravated robbery. As a result, the judgment of the trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Jerred A. Creasy, Dickson, Tennessee for the appellant, Alan F. Watson.




         1
          Throughout the record, the check cashing business is referred to as “Krystle’s Check Cashing,” “Krystal’s Fast
Cash, “Krystal’s Fashions,” and “Crystal’s Community and Cash Advance.” For consistency, we will refer to the
business as Crystal’s Check Cashing.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Dan. M. Alsobrooks, District Attorney General, and Suzanne Lockert-Mash,
Assistant District Attorney General, for the appellant, State of Tennessee.


                                          OPINION

                                    Factual Background

       On March 17, 2007, Crystal’s Check Cashing in Erin, Tennessee was robbed by a
male wearing a blue bandana. Appellant was developed as a suspect in the robbery. On the
basis of the information received from the investigation, officers secured a search warrant
for Appellant’s residence. The Affidavit in Support of Search Warrant stated:

       Affiant avers that on March 19, 2007 at approximately 4:15 p.m., the
       Community Cash Advance in Erin, Tennessee was robbed. Crystal Dew, clerk
       . . . , told Affiant that a white male wearing a dark ballcap with a blue bandana
       around his face and wearing a dark plaid shirt came into the store with a small
       handgun and demanded money. He placed a white plastic grocery bag on the
       counter for her to put the money in. She put in approximately $1700.00 mostly
       in bills with some change. After putting the money in the white plastic bag,
       the man put the clerk in a closet and told her to stay until he was gone. . .
       .[V]ideo surveillance tape show[ed] an older white dodge pick-up truck parked
       at the business at the time of the robbery. A witness, George Dew, told Officer
       Brian Hooper that he saw the vehicle and gave a par[t]ial tag number. Dwayne
       Dew said he recognized the truck as belonging to Danny Jones. . . . Danny
       Jones talked to Erin Oficer Brett Parker and said that he had lent it to
       [Appellant] and that [Appellant] had it at the time of the robbery. . . .
       [Appellant brought the truck back after the time of the robbery and left it in the
       yard without telling Jones that he had returned it. HE said this was unusual.
       . . . [A] Mountain Dew drink [was found] in the truck. . . . [Appellant was
       observed] purchasing a Mountain Dew Drink at the Sudden Service Market in
       Erin approximately three hours before the robbery. The drink was placed in
       a white plastic bag similar to the one used in the robbery. . . . Affiant, along
       with other law enforcement officers, drove to [Appellant’s] address. Before
       officers could go to the front door, [Appellant] ran out the back door. Affiant
       observed that [Appellant] is a white male. Officers had to chase [Appellant]
       and apprehend him. He refused consent to search his residence. Investigator
       John Etheridge interviewed [Appellant’s wife] and she stated that they went
       to the Sudden Service and bought a Mountain Dew around noon or shortly


                                              -2-
       thereafter. She stated that he then dropped her off at work. She confirmed that
       they were having financial problems and that [Appellant] has a small handgun
       at the residence. She also stated that he owned several bandanas that are also
       at the residence. This information was conveyed to the Affiant by John
       Etheridge.

       After the search warrant was executed, Appellant was indicted by the Houston County
Grand Jury in May of 2007 for the aggravated robbery. Appellant filed a motion to suppress
the evidence obtained during the search. He argued: (1) the search violated his reasonable
expectation of privacy; (2) the search was conducted without probable cause because the
affidavit contained intentional or reckless misrepresentations and was inadequate; (3)
Appellant did not consent to the search; (4) the seized items were not in plain view; (5)
Appellant did not receive a receipt for the property taken or a copy of the warrant; and (6)
the officer making the return failed to sign the return.

       The trial court held a hearing on the motion to suppress. At the hearing, the trial court
heard testimony that Danny and Heather Jones were friends of Appellant. On the day of the
incident, they lent a truck to Appellant so that he could move furniture and haul trash.
Ordinarily, when Appellant borrowed the truck, he would talk to someone at the house when
he picked it up and when he returned the keys. On the day of the incident, Appellant picked
up the truck around 10:00 a.m. and returned the truck sometime after 3:00 p.m. without
talking to Mr. or Mrs. Jones. He left the keys in the truck.

       After Appellant left the truck, he called Mr. and Mrs. Jones. During the conversation,
he told Mrs. Jones that she should not take the truck into town because there was a robbery
at the Western Union, and there were a lot of police in the area.

        After authorities talked with the victims, Appellant was developed as a suspect. As
a result, several law enforcement personnel placed Appellant’s trailer under investigation.
Houston County Investigator Thomas Textor was one of those officers. While under
surveillance, officers saw Appellant “poke” his head out the back door five or six times. He
would “look around and then go back and the door would shut.”

       Agent Joe Craig of the Tennessee Bureau of Investigation went to Appellant’s trailer
with several local officers. They arrived in police vehicles but did not activate their blue
lights. Houston County Deputy David Conley arrived at Appellant’s trailer about fifteen
minutes before Agent Craig. Deputy Conley and Investigator Textor recalled some of the
vehicles had blue lights activated.




                                              -3-
        When Agent Craig and other officers exited their vehicles to surround the trailer,
Appellant exited the trailer through the back door. Agent Craig was at the front of the trailer
at the time. Deputy Conley and Investigator Textor were standing at the back of the house.
Deputy Conley heard a “commotion” before the back door to the trailer “flung open fast,”
and Appellant came out the door “quickly.” Investigator Textor agreed that Appellant came
out the door “in a hurry” as if he were about to run away but was not running in the literal
sense. Investigator Textor did not recall hearing a commotion from inside the trailer before
the door but acknowledged that Deputy Conley “hears better” and was closer to the door.

       According to Deputy Conley, no one had to chase Appellant. However, Deputy
Conley believed that Appellant would have run away if the officers had not been there to stop
him. In other words, Appellant “came out in a hurry out the back door” and left with what
officers described as the intent to run away. However, when Appellant was ordered to the
ground he was compliant.

       Appellant denied consent to search his home. At that time, a search warrant was
secured. The search was conducted at around 1:30 or 2:00 a.m. the next morning. When the
search warrant was returned, Agent Craig initially failed to sign it.

        At the conclusion of the hearing on the motion to suppress, the trial court determined
that the affidavit was “ample as far as establishing probable cause” and that there was “no
intentional or reckless misrepresentations made by the affiant that were central to finding
probable cause.” The trial court noted that the use of the word “chase” was a “potential”
error as far as the placement of the word in the sentence. The trial court stated that the
affiant should have said “they apprehended the defendant before they had to chase him” but
that the statement was neither intentionally nor recklessly made. From the testimony, the trial
court determined that Appellant was “running in an attempt to get away from law
enforcement officers who were there,” and this supported probable cause. Therefore, the
trial court found “no basis for suppressing the evidence.”

       The case proceeded to trial. At trial, the victim, Crystal Dew, testified that she worked
at Crystal’s and Community Cash Advance, a business owned by her parents. The business
makes payday loans, title loans, cashes checks, and has tanning beds. Ms. Dew stated that
the business normally had quite a bit of cash on hand.

      On March 17, 2007, at around 4:00 p.m., a white man later identified as Appellant
came into the business wearing a “blue [and gray] flannel [plaid] jacket type shirt buttoned
completely up.” He had a bandana over his face and a baseball cap pulled down low. The
man was holding a gun and dropped a white plastic bag onto the counter. The victim was
nervous. She immediately realized she was being robbed and tried to put money in the bag.


                                              -4-
She started dropping money and actually had to ask Appellant to hold the bag open so that
she could get the money inside. The victim placed about $1,700 in the bag before Appellant
told her to go into the bathroom and count to ten. He threatened to shoot her if she did not
comply. The victim stayed in the bathroom until she heard a truck start outside. At that
point, she left the bathroom, pushed the panic button, and waited for the police to arrive. The
victim was afraid during the encounter.

       At trial, the victim described Appellant’s physique as similar to that of the robber.
She could not say with 100% certainty that Appellant was the robber but adamantly denied
that Danny or Ricky Jones were responsible for the robbery. The victim identified a gun that
looked “very similar” to the one used in the robbery. Additionally, she identified a blue
bandana and plaid shirt that matched the clothing items worn by Appellant during the
robbery.

        George Dew, the victim’s father-in-law, stopped by the business a few minutes prior
to the robbery. While he was there, he noticed a white Dodge truck in the parking lot. He
recognized the truck as one that belonged to Danny Jones. Mr. Dew testified that the man
inside the truck did not look like Danny Jones and was wearing a “blue checked
checkerboard coat” and a blue ball cap. Mr. Dew stated that the license plate started with
either a “499” or “477” and ended with “JZV.”

       Ms. Dew’s husband, Dwayne, passed the business several times on the afternoon of
the robbery. He saw a white Dodge truck parked outside. It was the truck that belonged to
Danny Jones. The man inside the truck was not Danny Jones, but Dwayne Dew was unable
to identify the man because he “kept turning away” and was wearing a darker color baseball
cap. Dwayne Dew knew that it was not Danny Jones inside the truck because Jones was a
larger man.

        Joshua Burnaine was across the street at the middle school that afternoon. He saw the
white Dodge truck. A man wearing a blue flannel shirt and hat got out of the truck, entered
the business. When the man came out of the business, Mr. Burnaine heard coins dropping
to the ground as the man got into the truck and drove away.

        Gwen Nolen, the proprietor of Gwen’s Hair Studio next door to Crystal’s, noticed a
white truck in the parking lot that day. It was parked “out of place” at a vacant building. Ms.
Nolen knew Danny Jones and denied that he was in the truck. The man in the truck was
wearing a ball cap and was roughly the same size as Appellant. The truck was gone when
she left work at about 4:15 p.m.




                                              -5-
       Jennifer Jones worked at Sudden Service, a corner market in Erin. Appellant was a
regular customer of the store. Appellant came to the store in a small red car at around 1:07
p.m. He bought a Mountain Dew and a two-liter Diet Coke. The surveillance tape from that
day was unavailable because the store was “having trouble” with the equipment. Lieutenant
Brian Hooper was able to review the surveillance video but was unable to make a copy of the
video. Appellant was seen driving up to the store in a red convertible, entering the store with
his wife, purchasing drinks, exiting the store, and driving away from the store.

       Across the street from the scene of the incident, the middle school video surveillance
showed the white truck parked outside at 2:58 p.m. and in the same place at 4:02 p.m. At
4:26 p.m., the tape shows officers arriving on the scene in response to the robbery.

       A blue and white flannel shirt or jacket was found “laying just off of the roadway”
about four miles away from the incident.

      Lieutenant Hooper was at Appellant’s home when he was apprehended. Lieutenant
Hooper described that Appellant was “attempting to flee the house” and seemed “very
nervous.” In fact, Appellant appeared to be “very nervous” and was perspiring.

       Officer Mark Moore of the Erin Police Department also testified at the trial. He
responded to the scene at 4:21 p.m. He received information about the robbery, including
the fact that the perpetrator robbed Ms. Dew at gunpoint, took off on Denmark Road in a
white Dodge truck with “gray showing on the side of the bed.” The license plate of the truck
contained a “4” and the letters “JZV.”

       The truck was located at the home of Danny Jones about 90 minutes after the robbery.
The Joneses consented to a search of their residence and truck. Coins and a portion of a one
hundred dollar bill were found on the ground outside the truck. Gloves and a Mountain Dew
bottle were found inside the truck. There were no usable prints on either the money or the
soda.

       Appellant’s wife, Violet Watson, testified at trial about the money problems that the
couple had experienced. Appellant was not working and Mrs. Watson was the sole provider
of income for the family. Mrs. Watson admitted that they owned a “small black handgun”
and had bandanas. The gun was usually kept on the kitchen table. She recalled stopping at
Sudden Service on the day of the incident; she got a Diet Coke and Appellant got a Mountain
Dew.

      After Appellant’s arrest, the officers executed the search warrant. During the search
of Appellant’s residence, officers located a small black .25 caliber semi-automatic handgun.


                                              -6-
The gun was found inside a microwave stand along with white plastic bags. Several
bandanas were located in a dresser drawer in Appellant’s bedroom. Police located $34.46
on Appellant’s person and $1,412.00 in a Jeff Gordon coat in the hallway closet. According
to Appellant’s wife, there was only $600 in the residence.

       At the conclusion of the trial, the jury found Appellant guilty. As a result, he was
sentenced to nine years in incarceration as a Range I, standard offender. Appellant appeals.

                                            Analysis

        First, Appellant insists that the trial court improperly denied the motion to suppress.
Specifically, he argues that the search warrant lacked probable cause; was based on
information from an unreliable source; and contained false and misleading information. The
State, on the other hand, insists that the trial court properly denied the motion to suppress.

        “This Court will uphold a trial court’s findings of fact in a suppression hearing unless
the evidence preponderates otherwise.” State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)
(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)); see also State v. Moats, 403 S.W.3d
170, 177 (Tenn. 2013). On appeal, “‘[t]he prevailing party in the trial court is afforded the
“strongest legitimate view of the evidence and all reasonable and legitimate inferences that
may be drawn from that evidence.”’” Id. (quoting State v. Carter, 16 S.W.3d 762, 765
(Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998))). “Questions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts
in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928
S.W.2d at 23. Our review of a trial court’s application of law to the facts is de novo, with
no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing State
v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997)). When the trial court’s findings of fact are based entirely on evidence that
does not involve issues of witness credibility, however, appellate courts are as capable as trial
courts of reviewing the evidence and drawing conclusions, and the trial court’s findings of
fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).
Further, we note that “in evaluating the correctness of a trial court’s ruling on a pretrial
motion to suppress, appellate courts may consider the proof adduced both at the suppression
hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

                                          A. Affidavit

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures by government agents. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These


                                               -7-
constitutional provisions are designed to “‘safeguard the privacy and security of individuals
against arbitrary invasions of government officials.’”” State v. Moats, 403 S.W.3d 170, 177
(Tenn. 2013) ((quoting State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002) (quoting
Camara v. Mun. Ct., 387 U.S. 523, 528 (1967))). The Tennessee Supreme Court has noted
previously that “[a]rticle I, [section] 7 [of the Tennessee Constitution] is identical in intent
and purpose with the Fourth Amendment [of the United States Constitution],” and that
federal cases applying the Fourth Amendment should be regarded as “particularly
persuasive.” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968).

        In the case herein, there was a search warrant. Of course, an affidavit establishing
probable cause is an indispensable prerequisite to the issuance of a search warrant. See, e.g.,
T.C.A. § 40-6-103; Tenn. R. Crim. P. 41(c); Henning, 975 S.W.2d at 294; State v. Moon, 841
S.W.2d 336, 338 (Tenn. Crim. App. 1992). Such probable cause “must appear in the
affidavit [itself] and judicial review of the existence of probable cause will not include
looking to other evidence provided to or known by the issuing magistrate or possessed by the
affiant.” Moon, 841 S.W.2d at 338; see also Henning, 975 S.W.2d at 295. To sufficiently
make a showing of probable cause, an affidavit “must set forth facts from which a reasonable
conclusion might be drawn that the evidence is in the place to be searched.” State v. Smith,
868 S.W.2d 561, 572 (Tenn. 1993). However, a decision regarding the existence of probable
cause requires that the affidavit contain “more than mere conclusory allegations by the
affiant.” State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999); see also Moon, 841 S.W.2d
at 338. It is true that, “Tennessee law is clear that in determining whether or not probable
cause supported issuance of a search warrant only the information contained within the four
corners of the affidavit may be considered.” State v. Keith, 978 S.W.2d 861, 870 (Tenn.
1998) (citing State v. Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989)). This language refers to
a court’s determination whether or not the warrant itself is valid.

       A search warrant must be based on probable cause, and “[a] showing of probable
cause requires . . . reasonable grounds for suspicion, supported by circumstances indicative
of an illegal act.” State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999) (citing State v.
Johnson, 854 S.W.2d 897, 899 (Tenn. Crim. App. 1993)). Although an affidavit may
establish probable cause based on hearsay information from a confidential informant, the
information must include more than conclusory allegations. Id. When the police use a
criminal informant, the two-prong Aguilar-Spinelli test applies. Jacumin, 778 S.W.2d at 436.
The warrant must establish the basis for the informant’s knowledge and either a basis for
showing the informant’s credibility or the reliability of the informant’s knowledge. State v.
Cauley, 863 S.W.2d 411, 417 (Tenn. 1993).

       The affidavit must also establish a “nexus among the criminal activity, the place to be
searched, and the items to be seized.” State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009).


                                              -8-
This court considers “‘whether the criminal activity under investigation was an isolated event
or a protracted pattern of conduct[,] . . . the nature of the property sought, the normal
inferences as to where a criminal would hide the evidence, and the perpetrator’s opportunity
to dispose of incriminating evidence.”’ Id. (quoting State v. Reid, 91 S.W.3d 247, 275 (Tenn.
2002)). This Court “may consider only the affidavit and may not consider any other evidence
known by the affiant or provided to or possessed by the issuing magistrate.” State v. Carter,
160 S.W.3d 526, 533 (Tenn. 2009).

        We laid out above, word for word, the facts given by TBI Agent Joe Craig in his
Affidavit in Support of Search Warrant, which the State submits provide the probable cause
necessary to justify the issuance of the warrant.2 The affidavit provides a brief description
of what the male subject was wearing and recounts information told to the affiant by the
victim, a witness, and the owner of the truck that was parked outside the business that was
robbed. The affidavit also included information from Danny Jones, the owner of the truck,
who loaned the truck to Appellant on the day of the incident. Further, the affidavit recounts
information from other officers who observed Appellant in surveillance footage using a
plastic bag similar to the one used in the robbery. The affidavit includes the physical address
of the residence and details of the events that took place during the robbery, including the
amount of money that was stolen. Moreover, the affidavit lists five specific items that are
specifically being sought in the search, “cash, gun, plastic bag, clothing, and bandanas.”
Appellant’s first complaint about the warrant is that it was overly broad. We disagree. Agent
Craig was charged with establishing probable cause, and the affidavit provided sufficient
information from which the magistrate could determine that probable cause existed to grant
the search warrant. Appellant is not entitled to relief on this issue.

                                   B. Unreliable Criminal Informant

        Additionally, Appellant argues that the information provided by Danny Jones was
unreliable and contained false or misleading information. Appellant complains that nothing
in the affidavit supports the credibility of the statements of Danny Jones as informant and
seems to suggest that Mr. Jones’s prior theft conviction somehow makes him a criminal
informant. The State disagrees.

      Appellant failed to raise this issue in a motion to suppress or amended motion to
suppress. Appellant has waived these issues for failing to raise them in his motion to
suppress or present any evidence at the suppression hearing concerning the issues. Tenn. R.



        2
        The record also contains what appears to be a summary of the affidavit. It is attached to the Affidavit of
Complaint and Affidavit in Support of the Search W arrant.

                                                       -9-
Crim. P. 12(b)(3); Tenn. R. Crim. P. 12(f); and Tenn. R.App. P. 36(a). Appellant is not
entitled to relief on this issue.

                     C. False and Misleading Information in Affidavit

       Lastly, Appellant complains that the information in the affidavit was false and
misleading. Specifically, Appellant insists that there were willful misrepresentations by
police about whether Appellant attempted to flee and police had to “chase” him to apprehend
and arrest him. Additionally, Appellant states that the police fraudulently procured the
search warrant on the basis that a Mountain Dew bottle was found in the truck where
Appellant purchased a Mountain Dew several hours before the robbery. The State disagrees.

       In State v. Little, 560 S.W.2d 403, 407 (Tenn. 1978), our supreme court held that
“there are two circumstances that authorize the impeachment of an affidavit sufficient on its
face, (1) a false statement made with intent to deceive the Court, whether material or
immaterial to the issue of probable cause, and (2) a false statement, essential to the
establishment of probable cause, recklessly made.” See also State v. Ash, 729 S.W .2d 275,
278 (Tenn. Crim. App. 1986). Mere negligence is not enough. United States v. Hole, 564
F.2d 298 (9th Cir. 1977); United States v. Collier, 493 F.2d 327 (6th Cir. 1974); State v. Leon
Hurd, No. E1999-01341-CCA-R3-CD, 2001 WL 348871, at *6 (Tenn. Crim. App., at
Knoxville, Apr. 10, 2001). Recklessness is “established by showing that a statement was
false when made and that affiant did not have reasonable grounds for believing it, at that
time. Little, 560 S.W.2d at 407. Absent a false statement, a defendant is not entitled to delve
behind the face of the affidavit. State v. Houseal, 667 S.W.2d 108, 109-110 (Tenn. Crim.
App. 1983).

       It is our conclusion that no false statement was made either intentionally or recklessly
herein. Appellant complains that the affidavit states, “[b]efore officers could go to the front
door, [Appellant] ran out the back door . . . . Officers had to chase [Appellant] and
apprehend him.” This language appears in the Affidavit of Search Warrant, not the sworn
affidavit of complaint for aggravated robbery. At the hearing on the motion to suppress,
officers testified that Appellant flung open the back door and moved quickly across the
porch. Officers stated that he was not actually chased, but appeared to be attempting to flee
the scene. Appellant’s argument that the use of the word “chase” was to mislead or was
made recklessly is misplaced. The testimony does not support the conclusion that the
statement was false when made by the affiant. Moreover, the inclusion of information about
Appellant’s Mountain Dew purchase is not a fatal misrepresentation. Officers testified that
they personally viewed footage of Appellant purchasing a Mountain Dew at Sudden Service.
While he was driving his own car at the time rather than the truck used in the robbery, we see
no fatal misrepresentation in the inclusion of this information in the affidavit as a Mountain


                                             -10-
Dew bottle was later found in the truck. Appellant is not entitled to relief on this issue.


                            Admissibility of Robbery Conviction

       Next, Appellant insists that he was denied a fair trial because he was not allowed to
question witnesses related to a prior robbery committed by the brother of Danny Jones and
that the police failed to preserve the video of Appellant purchasing drinks at Sudden Service.
The State submits that the evidence of the robbery committed by the brother of a State’s
witness was irrelevant and properly excluded. Further, the State argues that the issue
regarding the videotape is waived for failure to present it in a motion for new trial.

       Initially, we note that Appellant failed to cite to the relevant portion of the record as
required by Tennessee Court of Criminal Appeals Rule 10(b). We choose to address the
issue despite the brief’s shortcomings. The admissibility of relevant evidence is within the
sound discretion of the trial court, and the court’s ruling on admissibility will not be
disturbed on appeal absent a showing of an abuse of that discretion. State v. Carruthers, 35
S.W.3d 516, 576-77 (Tenn. 2000); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);
State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). As our supreme court stated in
Carruthers, the modern trend is to vest more discretion in the trial court’s rulings on
admissibility. Carruthers, 35 S.W.3d at 577 (citing Banks, 564 S.W.2d at 949).

         Evidence is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.” Tenn. R. Evid. 403. Prejudicial evidence is not
excluded as a matter of law. Carruthers, 35 S.W.3d at 577. The court must still determine
the relevance of the visual evidence and weigh its probative value against any undue
prejudice. Id. The term “undue prejudice” has been defined “an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.” Banks,
564 S.W.2d at 950-51 (quoting Fed. R. Evid. 403, Advisory Comm. Notes). We conclude
that the introduction about a robbery committed by the brother of a State’s witness twelve
years prior to the incident at issue is irrelevant. While the information about the robbery was
certainly interesting, it did not in any way detract from the large amount of evidence linking
Appellant to the crime. There was no other proof pointing to Danny Jones’s brother as a
suspect. Appellant is not entitled to relief.

       As to the surveillance video, we determine Appellant has waived this issue for failure
to present in motion for new trial. “[N]o issue presented for review shall be predicated upon


                                              -11-
error in the admission of exclusion of evidence . . . unless the same was specifically stated
in a motion for new trial; otherwise such issues will be treated as waived.” Tenn. R. App.
P. 3. Appellant has waived this issue. Regardless of the waiver, we note that at least one
officer viewed the videotape in its entirety and testified that Appellant appeared in the
videotape.

                                 Sufficiency of the Evidence

       Lastly, Appellant challenges the sufficiency of the evidence. He claims that because
he was never “identified as the perpetrator” and “no evidence seized from [Appellant] was
ever testified to be anything other than similar to that worn by the suspect” there is not proof
that he committed the crime. In other words, the evidence to support the conviction was
largely circumstantial.

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994) (citing State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992)). Thus,
although the accused is originally cloaked with a presumption of innocence, the jury verdict
of guilty removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the
defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant
question the reviewing court must answer is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. See
Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord
the State “the strongest legitimate view of the evidence as well as all reasonable and
legitimate inferences that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As
such, this Court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App.
1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may
not substitute our own “inferences for those drawn by the trier of fact from circumstantial
evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning the credibility of
the witnesses and the weight and value to be given to evidence, as well as all factual issues
raised by such evidence, are resolved by the trier of fact and not the appellate courts. State
v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
Robbery is the “intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” T.C.A. § 39-13-401(a). A robbery becomes


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aggravated either when the victim is seriously injured or when the defendant “display[s] . .
. any article used . . . to lead the victim to reasonably believe it to be a deadly weapon.”
T.C.A. § 39-13-402(a).

       Viewing the evidence in a light most favorable to the State, the proof shows that
Appellant borrowed a truck from Danny Jones on the day of the robbery. The truck was seen
parked near Crystal’s. Several witnesses saw a man in the truck who did not look like Mr.
Jones. Around 4:00 p.m., a man dressed in a blue and white flannel jacket with a bandana
came into Crystal’s. He pulled a gun on Ms. Dew, dropped a white plastic bag on the
counter, and stole $1,700. As he was leaving the store and getting into the white truck, a
witness saw him drop coins onto the ground.

        The truck was returned to Mr. Jones at some point that afternoon. Appellant called
Mr. Jones and told him not to go to town because of a robbery. When police searched the
truck, they found a Mountain Dew inside and some coins on the floorboard. After a search
warrant was executed at Appellant’s home, officers found a handgun, white plastic bags like
the one used in the robbery, several bandanas, and more than $1,400. The evidence was
sufficient to support Appellant’s conviction for aggravated robbery. Appellant is not entitled
to relief.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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