        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE            FILED
                        JULY SESSION, 1998          November 5, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,         )   C.C.A. NO. 03C01-9702-CR-00076
                            )
      Appellee,             )
                            )
                            )   UNICOI COUNTY
VS.                         )
                            )   HON. ARDEN L. HILL
TERRY DEAN SNEED,           )   JUDGE
                            )
      Appe llant.           )   (Aggravated Robbery, Aggravated
                            )   Kidnapping, Aggravated Rape)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CRIMINAL COURT OF UNICOI COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

RAYMOND C. CONKIN, JR.          JOHN KNOX WALKUP
320 Cherokee St., Suite B       Attorney General and Reporter
Kingsport, TN 37660
                                ELIZABETH B. MARNEY
                                Assistant Attorney General
                                425 5th Avenu e North
                                Nashville, TN 37243

                                DAVID CROCKETT
                                District Attorney General

                                STEVEN R. FINNEY
                                Assistant District Attorney General
                                Carter County Courthouse Annex
                                Elizabethton, TN 37643

                                LISA NIDIFFER
                                Assistant District Attorney General
                                Courthouse
                                Erwin, TN 37650

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION
       The Defendant, Terry Dean Sneed, appeals as of right from a Unicoi

Coun ty jury verdict convicting him of aggravated robbery, aggravated kidnapping,

aggravated rape, and two counts of aiding and abetting aggravated rape.1 The

trial court sentenced him to a total of one hund red an d twen ty-four ye ars; wh ile

the sente nces for the ra pe co nviction s qua lify as R ange II, multip le offender, the

other sentences are Range III, persistent offend er. Th e Def enda nt app eals h is

conviction . We affirm the ju dgme nt of the trial co urt.



       The Defendant argues eight issues on appeal: (1) that the evidence in the

record is n ot sufficient to supp ort a find ing tha t the D efend ant is guilty of aiding

and abetting aggravated rape beyond a reasonable doubt; (2) that the evidence

in the rec ord is n ot suffic ient to s uppo rt a findin g that th e Def enda nt is gu ilty of

aggravated rape, aggravated robbery, and aggravated kidnapping beyond a

reaso nable doubt; (3 ) that the trial co urt erred in allowing the victim’s pretrial

statement to be introduced as evidence and made an exh ibit which was

acce ssible to the jury during delibera tions; (4) that the trial court erred in allowing

the State to amend the indictment on the day of trial; (5) that the trial court erred

in overruling the D efenda nt’s motio n to dism iss two co unts of the indictme nt,

which he arg ues w ere err oneo usly drawn and d uplicito us in nature; (6) that the

trial court erred by instructing the jury on the issue of flight; (7) that the trial court




        1
            We note that both the indictment and the judgment form entered by the trial court
refer to this crime as “aiding and abetting aggravated rape.” Under the 1989 revision of our
criminal code, what was formerly the crime of “aiding and abetting” is now known as “criminal
responsibility for the conduct of another.” See Tenn. Code Ann. § 39-11-402. However, on
appeal, Defendant does not raise as an issue any irregularity concerning terminology, and even
if he had done so, the error would not be fatal. For the sake of clarity, we will employ the
terminology used by the trial court for the remainder of this opinion.

                                             -2-
erred in overr uling the Defendant’s motion for mistrial after a police officer

testified that the co-defendant had given statements which led the officer to

believe that the Defendant was guilty; and (8) that the trial court erred in finding

the D efend ant co mpe tent to s tand tria l.



       The victim in this case was an employee at the Stop-In Market in Carter

County, where she generally worked the night shift from eleven o’clock p.m. u ntil

seven o’clock a.m. On No vemb er 29, 19 92 at ap proxima tely one-th irty a.m.,

shortly after the victim’s co-wo rker left fo r the nig ht, leavin g the vic tim alo ne in the

store, two males entered the market. The two men, who were captured on video

surveillance tape, were armed with knives. They approached the victim and

demanded that sh e get a bag a nd fill it with all the money in the cash registe r.

The victim testified that both m en threa tened to kill her if she did not cooperate,

and the victim a ccede d to their demands. The men then dragged her from the

store and forced her into a car, wh ere the co-de fenda nt, Billy Joe Smith, shoved

her head to the floorboard and held it there.



       The victim testified that the Defendant drove the car to a cemetery. At the

cemetery, the Defendant and Smith began drinking Mad Dog 20/20, which they

also forced the victim to drink at one point during the night. Smith ordered the

victim to remove her clothes. At that time, the D efenda nt stated, “J ust kill her. .

. . [G]et it o ver with . I’m sick of hea ring he r cry.” Sm ith then raped the victim at

knifepoint on the gr ound o utside wh ile the De fendan t watche d from th e car. The

victim testified that immediately after the rape, the Defe ndant stated, “Give her

up to me, it’s my turn. Let m e have her . . . . Damn it, Billy Joe, you said if I drove

and did like you said that I could have her when you was done with her to do

                                             -3-
whatever I wanted to.” The D efenda nt, arme d with a knife, n ext rap ed the victim

in the front seat of the car. He then attempted to force her to perform fella tio.

The victim testified that when she refused, the Defendant said, “I’d love to kill you

. . . . I can’t wait to see your b lood flo w . . . . I’m a son o f satan and it w ouldn ’t

bother me a bit. I ought to kill you . . . . I’ve put five women u p there in that grave

and it wouldn’t bother me to mak e you n umb er six . . . . I ble w one bitch’s brains

out for scream ing.” After the rape, the victim was sobbing, and the victim testified

that the Defendant threatened to “chop [her] up and fry [her] on the hood of the

car” if she did not quiet down.



       Shor tly thereafter, the two men forced her to hold a cigarette lighter so that

they could se e to divide u p the m oney tha t they had taken fro m the S top-In

Marke t. Smith then raped the victim a second time on the ground outsid e, while

the Defendant again watched fro m the car. Th rough out the night a nd ea rly

morning, the two men threatened numerous times to kill the victim, and each one

told the victim that he had a gun. The victim also testified that she felt what she

believed to be a gun under the ba ck sea t of the c ar while she w as be ing he ld

down on the floorboard.



       After the third rape, the three got back into the car, at which point the

Defendant asked Sm ith if he could have a second turn at raping the victim. Smith

refused. The victim testified that the three of them then sat in the car in silence

for an hour or two so that Smith could “think.” Finally, as the sun began to rise,

Smith started the car and drove to the Roadway Inn in Johnson City, claiming that

he and the Defendant would abduct the victim and have her help them rob banks.




                                           -4-
According to testimony of the victim, Smith said, “We’re going to be Clyde and

you’ll be Bo nnie.”



       When they arrived at the motel, Smith held a knife to the victim’s back

while the Defen dant, lean ing aga inst the op en doo r of the car, c alled to a motel

employee in the parking lot to ask whether there were any vacant rooms. The

employee refused them a room, citing their drunkenness, and while the

Defendant was arg uing with the employee, the victim slid out of the car and ran

to the motel office. The emplo yee la ter testified that he could identify the

Defe ndan t and S mith a s the m en he had s een th at mo rning a t the m otel.



        The victim testified that while she was running to the motel office, she

heard the men running and she heard one of them say, “Let’s get the f__k out of

here.” The motel employee stated that the men were driving too fast for him to

get a license tag n umber.



       Upon reaching the motel office, the victim called 911 and summoned the

police. The w hole ord eal had lasted ap proxima tely seven hours. W hen th e

police arrived, she wen t with them to the Jo hnson C ity Police Departm ent to give

a statem ent deta iling the eve nts of the n ight. While at the police department, she

identified not only the Defendant from a photo line-up, but also was shown and

identified the car driven by the perpetrators on the night of the crime. At the

Johnson City Hospital, she subm itted to medical testing, which was later

introduce d at trial in the fo rm of a ra pe kit.




                                            -5-
       At trial the State introduced evidence recovered from the cemetery,

including a Mad Dog 20/20 bottle, the cigarette lighter, and a knife. Although

DNA evidence linked Smith to the crime, the police were unable to link the

Defendant with the crime through DNA evidence.



       Howeve r, with regard to the identity of the Defendant, the victim testified

that during the car ride, the Defendant called Smith by his first name, to which

Smith responded, “God damn it, Snuffy, you called me by my real name.” A

defense witness later testified that the Defendant has a tattoo that read s “Snuffy.”

The victim state d at trial that she did not re call see ing an y of the D efend ant’s

tattoos, but she also testified that h e never to ok off his long-s leeved jac ket. In

addition, she identified the men on the video surveillance tape as the Defendant

and Smith. Furthermore, although the Defendant appeared to have lost weight

and had shaved his beard and shortened the length of his hair since the time of

the crime, the victim, who testified that she had numerous chances to see the

perpetrators’ faces at close range during the night of her abduction, stated

uneq uivoca lly that the Defendant was the same man who abducted and raped

her.



                                           I.

       The Defendant first argues that the evidence is insufficient to support a jury

verdict that he was guilty of aiding and abetting aggravated rape beyond a

reaso nable doubt. Under Tennessee law, “[a] person is criminally responsible for

. . . the conduct of another if . . . [a]cting with intent to promote or assist the

commission of the offen se, or to benefit in the procee ds or res ults of the offense,

the person solicits, directs, aids o r attem pts to a id ano ther pe rson to com mit the

                                          -6-
offense . . . .” Tenn. Code Ann. § 39-11-402. The Defendant argues that he was

not an active participant in the rapes of the victim by Smith. He argues that he

was merely present while Smith raped the victim and in no way offered any

assistance or aid to Smith during the rapes. He further argues that he did not

take any action that would manifest a desire or intent to carry out the rapes.



       Tennessee Rule o f Appe llate Pro cedu re 13(e ) presc ribes th at “[findin gs]

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to suppo rt the finding by the trier of fact beyond a

reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility

of the witn esse s, the w eight a nd valu e to be given th e evide nce, a s well a s all

factual issues ra ised b y the ev idenc e, are re solved by the tr ier of fac t, not this

Court.” State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (citing

State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Nor may this court re-weigh

or re-evalua te the evide nce in the record b elow. State v. Evans, 838 S.W.2d

185, 191 (Tenn. 1992) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.

1978)).



       A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. (citing State v. Williams, 657

S.W.2d 405, 41 0 (Ten n. 1983 )). On a ppea l, the State is entitled to the strongest

legitimate view of the e vidence and all infere nces the refrom. State v. Tug gle, 639

S.W.2d 913, 914 (Tenn. 1982) (citing Cabbage, 571 S.W.2d at 835). Because

a verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the ac cuse d has the bu rden in this Court of illustrating why

the evidence is insufficient to support the verdict returne d by the trier o f fact.

                                           -7-
McBee v. State, 372 S.W.2d 173, 17 6 (Ten n. 1963 ); see also Evans, 838 S.W.2d

at 191 (citing Grace, 493 S.W .2d at 476 ); Tug gle, 639 S.W.2d at 914.



         In the case at bar, the evidence presented by the State clearly con tradicts

the Defendant’s assertion that he was not an active participant in the rapes

perpetrated by Sm ith. The Defe ndan t’s state men t, “[Y]ou s aid if I drove and d id

like you said that I could have her when you was done with her to do whatever

I wanted to,” shows that the perpetrators shared at least some pre-formed intent

to act in con cert in the c omm ission of th e rapes. Moreover, the Defendant

actua lly drove the car to the cemetery where all three rapes occurred, and the

Defendant remained arme d with h is knife d uring m uch o f the eve ning a nd ea rly

morning. In fact, the D efenda nt himse lf urged S mith to kill the victim on at least

one occasion. Therefore, viewing the evidence in light most favorable to the

prosecution, there is clea rly sufficient evid ence fo r the jury to have found the

Defendant guilty of aiding and abetting aggravated rape beyon d a rea sona ble

doubt.



                                          II.

         Second, the Defendant argues that the e vidence was insufficient to support

jury verdicts tha t he was guilty of agg ravated ra pe, agg ravated ro bbery, and

aggravated kidnapping beyond a reasonable doubt. The basis of his argument

is mistake n identity. He argues that no physical evidence links him to the scene

of the crime. He also contends that the victim’s identification of the Defendant is

suspect since the majority of the abduction took place at night in darkness, the

victim was in an exc ited state at the time o f the crime, and she failed to notice

tattoos on the D efendant’s bo dy.

                                          -8-
         As previously noted, because a verdict of guilt removes the presumption

of innocence and replaces it with a presumption of guilt, the accused has the

burden in this Court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fa ct. Tug gle, 639 S.W .2d at 914 ; see also Evans,

838 S.W.2d at 191 (citing Grace, 493 S.W .2d at 476). Th is Court will not disturb

a verdict of guilt due to the sufficiency of the evidence unless the facts in the

record and the inferences wh ich may be drawn from the facts are insufficient, as

a matter of law, for a rational trier of fact to find the accused guilty beyond a

reasonab le doubt. Ten n. R. App. P. 1 3(e).



         Desp ite the lack of physical evidence linking the Defendant to the crime,

the victim positively identified the Defendant as her assailant.            She spent

appro ximate ly seven hou rs with her two ass ailants, and a few o f those hours

were spent in b road da ylight. Additionally, she testified that sh e hea rd Sm ith call

the Defendant by both his first name and his n icknam e. The victim’s testimony

alone would be sufficient to convict the Defendant. However, in this case, the

victim’s testimony was coupled with images captured by a video surveillance

camera and an identifica tion ma de by the motel em ployee. This issue is without

merit.



                                          III.

         Third, the Defendant contends that the trial court erred in allowing the

victim’s pretrial statement to be introduced and made an exhibit which was

acce ssible to the jury during deliberatio ns. The Defendant argues that although

the adm issibility of such a document is normally left to the discretion of the trial

                                          -9-
court, the trial judge in this case abuse d his discr etion. In his brief, the Defendant

relies upon T ennes see Ru le of Evidence 803(5), the hearsay exception regarding

recorded recollections:

       A memorandum or record concerning a matt er about which a
       witness once had knowledge but now has insufficient re collection to
       enab le the witness to testify fully and ac curately, shown to have
       been made or adopted by the witnes s whe n the m atter w as fres h in
       the witness’s mem ory and to reflect that knowledge correctly. If
       admitted, the memorandum or record may be read into evidence but
       may not itself be received as an exhibit unless offered by an adverse
       party.

Tenn. R . Evid. 803(5).



       The docume nt in question is a statement by the victim taken by Officer

Donna Haynes on the morning following the crime. At trial, the officer had trouble

remembering portions of the victim’s state ment a nd was therefore allowed to

refresh her memory using the typed statement. The record reflects that the

document was first introduced by the State on direct and was subsequently used

during cross examination. The State published the document to the jury and later

move d to introdu ce it as an exhibit.



       Although the document had already been published to the jury when the

Defendant objected, the trial court should not have entered the document as an

exhibit. Rule 803(5 ) plainly states that a memorandum or record used to refresh

a witne ss’s memory may be introduced as evidence but may not be introduced

as an exhibit unless offered by an ad verse pa rty. Id. Here, the State m oved to

have the statem ent introdu ced as an exhib it.




                                         -10-
      Howeve r, despite this apparent error by the trial court, the Defendant has

failed to demonstrate any prejudice caused by use of the statement during jury

deliberations. For this reason, a ny error that the trial court may have made was

harmle ss. See Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).




                                      -11-
                                         IV.

      Fourth, the Defendant argues that the trial court erre d in allowin g the Sta te

to amen d the indic tment o n the da y of trial. Spec ifically, the Sta te move d to

amend the aggravated kidnapping count to include the word s: “so as to

subs tantially interfere with the victim’s liberty.” The State also corrected the

statutory citation listed in the indictment. The amended count reads as follows:

              And these same Grand Jurors upon their same oath further

      present that BILLY JOE SMITH and TERRY DEAN SNEED, on or

      about the 29th d ay of No vemb er, 1992, in the C ounty an d State

      aforesaid, and b efore th e findin g of this Indictme nt, did u nlawfu lly

      remove the victim fro m her p lace of em ployme nt, so as to

      subs tantially interfere w ith the victim’s liberty, while the said BILLY

      JOE SMITH and TERRY DEA N SNEED were armed with a dea dly

      weapon, to-wit: a Knife, in vio lation of Section 39-13-304 of the

      Tennessee Code Annota ted, all of wh ich is aga inst the peace and

      dignity of the State of Tennessee.



(Em phas is added.)    The Defendant argues that the amendments added an

essential element to the crime without prior notice to the Defendant and without

review of the gran d jury.



      Rule 7(b ) of the Ru les of Crim inal Proc edure s tates that “[a ]n indictm ent,

presentment or information may be amended in all cases with the consent of the

defend ant.   If no ad ditiona l or different offense is thereby charged and no

substantial rights of the defendant are thereby prejudiced, the co urt ma y perm it

an amendment without the defendant’s consent before jeopardy attaches.” Tenn.

                                        -12-
R. Crim. P . 7(b). Thu s, at its discre tion, a court may allow any amendment to an

indictment that does not add an offense or substantially prejudice the rights of the

defend ant.



         In the case at bar, it is our opinion that the Defendant did not experience

surprise as a re sult of th e am endm ents. T he im prope rly cited Tennessee Code

Annotated § 39-13-3 01 refers to the definitional portion of “Kidnapping and False

Impriso nmen t.”      It should have been clear to the Defendant, from both the

impro perly cited section and the language of the count itself, that the charge

referred to aggravated kidnapping. Moreover, although inserting the language,

“so as to substantially interfere with the liberty of the victim,” does add an

essential element to the crime of aggravated kidnapping, as the Defendant

contends, we do not be lieve tha t the ad ditiona l langu age re sults in r evers ible

error.



         Moreover, desp ite the fo regoin g discu ssion, the Defendant in this case

failed make an objection to the form of the indictment before trial. Rule 12(b)(2)

of the Tennessee Rules of Criminal Procedure requires that “[d]efenses and

objections based on defects in the indictment, presentment or information” be

raised before trial. 2 Tenn. R. Crim. P. 12(b)(2). Here, the Defendant raises the

issue on ly on app eal to this C ourt.



         More approp riately, not having raised the issue pre-trial, the Defendant

could have moved for a continuance at the time opposing counsel presented the




         2
             With some exceptions, which are noted in the rule. Tenn. R. Crim. P. 12(b)(2).

                                              -13-
amen dmen ts to the court. When a defendant experiences actual surprise at trial

resulting from an amendment to an indictment, a defendant sho uld move for a

contin uance so as to allow time to prepare a defense to the new charges.3

Here, the Defe ndant n either objected at the time of trial nor m oved for a

continua nce. More importantly, however, after review of the record, we are not

convinced that the Defendant experienced actual surprise as a result of the

amendments.



                                               V.

       The Defendant’s next argument also pertains to the indictment. He argues

that the trial court erred in overruling the Defendant’s motion to dismiss two

counts of the indictment, which the Defendant argues were erroneously drawn

and duplicitous in nature. T he first two counts to w hich Defen dant refers are

identic al:

              The Grand Jurors of the State of Tennessee, duly summoned
       and elected, empaneled, sworn, and charged to inquire in and for
       the body of the County aforesaid, in the sta te afore said, u pon th eir
       oath, present that BILLY JOE SMITH heretofore, to wit, on or about
       the 29th da y of Nove mber, 1 992, in the Coun ty aforesaid, and
       before the find ing of th is indictm ent, did unlaw fully sexu ally
       penetra te the victim, by forcing her to h ave sexual inte rcourse with
       him while the said BILLY JOE SMITH was armed with a deadly
       weapon, to-wit: a knife, and did thereby cause bodily injury to the
       said victim, a nd furth er, the s aid BILLY JOE SMITH, was aided and
       abetted in com mitting this aggravated rape of the victim by another
       person, Terry Dean Snea d [sic], contrary to Tennessee Code
       Annotated, 39-13-502, and against the peace and dignity of the
       State of Tennessee.




        3
           In addition, if the Defendant believed that the indictment did not adequately apprise
him of the charges against him, he could have moved for a bill of particulars pursuant to Rule
7(c) of the Rules of Criminal Procedure, which states: “Upon motion of the defendant the court
may direct the filing of a bill of particulars so as to adequately identify the offense charged.”
Tenn. R. Crim. P. 7(c).

                                             -14-
      Again we note that the Defendant failed to object to the form of the

indictment before trial, as required by Rule 12(b)(2) of the Tennessee Rules of

Criminal Procedure. Tenn. R. Crim. P. 12(b)(2). Nor did he move for a bill of

particulars pursua nt to Rule 7(c) of the Rules of Criminal Procedure. Tenn. R.

Crim P. 7(c). 4 However, we will proceed to discuss the merits of this issue.



      In arguing that the counts were erroneously drawn, the Defendant points

to the fac t that in c ounts one a nd two , initially Billy Joe Smith is charg ed with

aggravated rape, while the Defendant is mentioned only later in the count as the

person who aids and abets Billy Joe Smith in committing the rape.                The

Defendant argues that this does not afford him sufficient notice of the charges

against him and therefore asserts that the indictment should be dism issed . Wh ile

we agree with the Defendant that the language of the counts does not provide the

clearest possible description of the crime, nor does it establish with com plete

precision the role of each perpetrator in the crime, we find that the language of

the counts is sufficient to apprise the Defendant of the charges against him.



      The Defendant’s argument concerning the duplicity of the counts is less

manife st. Althoug h we are unable to ascerta in the thrust of th e Def enda nt’s

argum ent, we have exam ined b oth ind ictme nts an d are u nable to find e rror in

them. “[A]s in the case of rape, where it appears that two or more persons acted

together, aiding and assisting one another in the perpetration of successive

rapes, or that the one committed the act and the other did n ot, but such stood by

and aided and assisted the one in commission of such act, they m ay be jo intly




       4
           See supra note 3.

                                        -15-
charged with the com miss ion of such act.” Wa tson v. Sta te, 197 S.W.2d 802,

804 (Tenn . 1946) (c iting 42 C .J.S. Indictm ents and Informations § 159).

Moreover, the facts clearly support the commission of two separate rapes by

Smith with assistance by the Defendant which were separated by both time and

the rape of the victim by the Defen dant. Fa cts such as tho se in the instant case

provide a dequa te groun ds for cha rging rap e in two se parate c ounts.



                                          VI.

      Sixth, the Defend ant contend s that the trial court erred by instructing the

jury on flight. He argues that no evidence of flight was introduced at trial and that

therefore, a jury charg e on the issue of flight was improp er.

      The jury was pro vided with the followin g instructio n on flight:

              The flight of a person accused of crime is a circumstance
      which, when considered together with all the facts of the case, may
      justify an infe rence of guilt. F light is th e volun tary with drawa l of
      ones elf for the purpose of evading arrest or prosecution for the
      crime charged. Whether the evidence presented proves beyond a
      reaso nable doubt that the defendant fled is a question for your
      determination.

              The law ma kes no nice or refin ed distinc tion as to the manner
      or metho d of flight; it may be open, or it may be a hurried or
      concealed departure, or it may be a concealment within the
      jurisdiction. However, it takes both a leaving the scene of the
      difficulty and subsequent hiding out, eva sion, o r conc ealm ent in the
      comm unity, or a leaving of the com munity fo r parts un known , to
      constitute flight.

              If flight is proved, the fact of flight alone does not allow you to
      find that the de fenda nt is guilty of the crime alleged. However, since
      flight by a defendant may be caused by a conscio usnes s of guilt,
      you may co nsider the fact of flight, if flight is so pro ven, toge ther with
      all of the other evidence when you decide the guilt or innocence of
      the defendant. On the other hand, an entirely innocent person may
      take flight and such flight may be explained by proof offered, or by
      the facts and circumstances of the case.

            Whether there was flight by the defendant, the reason s for it,
      and the weight to be given to it, are questions for you to determine.

                                          -16-
       This instruction on flight is almost identical to that provided in State v.

Kendricks, 947 S.W .2d 875 , 885 (T enn. C rim. App . 1996). In Kendricks, this

Court noted that the instruction was “in sub stantial accord with o ur pattern jury

instruction, T.P.I.-- Crim. 42.18, which has been c ited with ap proval by o ur Cou rt.”

Id. at 886. Generally, the jury is “entitled to evalua te [evidence conce rning flight]

and determine whether flight was established and if so, whether an inference of

consciousness of guilt arose.” State v. Hill, 875 S.W .2d 278, 284 (Tenn. Crim.

App. 1993) (citing Hall v. State , 584 S.W .2d 819, 821 (Tenn. Crim . App. 1979 )).



       As stated in the facts, immediately after the victim escaped from the car at

the motel, on e of the m en was heard to say, “Let’s g et the f__k out o f here.”

They then got back into their car and exited the parking lot, driving too fast for the

motel employee to ta ke dow n a licens e plate nu mber. A t trial, Unicoi C ounty

Criminal Investigator Ron Arnold testified that he spent approximately seven

months interviewing the De fendant’s fam ily and searching for the D efend ant in

an attemp t to appre hend h im. We believe that this constitutes sufficient evidence

to warrant the flight instru ction. The language in the instruction provided allows

for a broad spectrum of methods of flight and appears to encompass the behavior

of the Defend ant. Thus, the jury instruction on flight was appropriate in the

instant case.



                                          VII.

       Seventh, the Defenda nt contends that the trial court erred in overruling the

Defe ndan t’s motion for a mistr ial after a police officer testified that the

Defe ndan t’s co-defendant had given statements which led the police officer to

believe the Defendant was guilty. The Defendant argues that the statement was

                                         -17-
inadm issible hearsay and that in order to offer this statement into evidence, the

State should h ave called co-defe ndant S mith to te stify so as to satisfy the

Defen dant’s righ t to confron tation.



       The exchange at issue took place during the cross examination of Unicoi

Cou nty Crim inal Inve stigato r Ron Arno ld by de fense coun sel:

       Q. Now I believe you stated a moment ago somebody told you to be on
          the lookou t for Terry Dean Sneed, or that Terry Dean Sneed might
          be involved. Is that correct, sir?

       A. Tha t’s correct.

       ...

       Q. What somebody told you?

       A. The co-defe ndant.

The Defendant immediately moved for a mistrial, arguing that a Bruton violation

had occurred.5 The trial court overruled the motion and gave the jury a curative

instruction .



       W e find it unnecessary to delve into discussion of Bruton violations in the

instant case as this matter m ay be re solved on oth er grou nds: O fficer Ar nold’s

answer was elicited by counsel for the defense. Having elicited the objec tionab le

response, counsel for the defense cannot now be heard to complain. From a

reading of the record, we do not find here an intentional reference to the

Defendant in an attempt by the defe nse co unsel to c ompe l the court to grant a



        5
            See Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the United States
Supreme Court held that the admission of a co-defendant’s confession implicating the
defendant at a joint trial constituted prejudicial error. Id. at 126. The Court reasoned that
because the co-defendant did not take the stand for cross examination, the defendant’s
constitutional right to confrontation had been violated. Id. The Court determined that a curative
instruction to the jury did not serve to remedy the error. Id. at 137.

                                             -18-
mistria l, as the S tate suggested at trial. The witness’s statement of what the co-

defendant told him was very general and vague. We find instead an error which

was rem edied w ith a curative instruction .



       The decisio n of wh ether to grant a mistria l is within the sound discretion of

the trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996 ).

This Court will not disturb such a ruling absent a finding of an abuse of discretion.

State v. Adkins, 786 S.W .2d 642 , 644 (T enn. 19 90); State v. Williams, 929

S.W.2d 385, 38 8 (Ten n. Crim. A pp. 199 6). Furtherm ore, we presume that the

jury followe d the tria l court’s explicit instruction s not to co nsider the inappro priate

comm ent. State v. S mith, 893 S.W.2d 908, 923 (Tenn. 1994). In light of the

limited nature of the offending testimony an d the trial court’s prom pt curative

instruction, we find that the trial judge did not abuse his discretion in refusing to

grant a mistrial. See State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App.

1993). Although we are un able to find a ny erro r on the part of th e trial co urt, if

any error was made , it was clearly h armles s. See Tenn. R. App. P. 36(b); Tenn.

R. Crim. P. 52 (a).



                                           VIII.

       Finally, the Defendant argues that the trial court erred in finding the

Defendant competent to stand trial. On the day of trial, Defendant filed a pro se

motion requesting “proper medication,” claiming that without his medication, he

was not competent to stand trial. The court conducted a hearing on the matter.



       The court allowed the Defendant to testify on his own behalf outside the

presence of the jury. Th e court a lso delaye d proce edings to attem pt to find the

                                           -19-
Defe ndan t’s docto r, who p roved to be u navaila ble. In the doctor’s stead, the

court called a pharmacist to testify, who testified that the anti-depressant

medications the Defendant had been taking were ge nerally use d for mild a nxiety

“due to everyday life stresses .” The record reflects that the Defendant had not

been taking his medication for at least two months preceding trial. The court

called to the stand a jailer from the Defendant’s place of incarceration, and the

jailer testified that the Defendant had not exhibited any form of abnormal behavior

since he had stopped taking his medication. The Defendant introduced a letter

from Assessment Services, dated November 8, 1994, stating, “It is important that

Terry continues to receive his medications on a regu lar bas is to m aintain his

comp etency.” However, the State also entered into evidence a letter, dated

August 3, 1995, from the Defend ant’s doctor, who wrote, “I do not feel that T erry

Sneed needs to be taking Loraze pam.” After ha ving heard all testimo ny and

having tried unsuccessfully to locate a presc ription fo r the D efend ant’s

medication, the court concluded that the Defendant’s pro se motion should be

denied:

      Based upon what I’ve heard here today from the pharmacist and
      from the jailer as to [the Defendant’s] actions lately and the motions
      filed by Mr. Sne ed we re not tim ely filed, a ccord ing to th e . . . local
      rules, therefore, we’re going to proceed with the trial without any
      Lorezapam. It would delay the trial too much, in my opinion, to try
      to get some doctor to prescribe Lorezapam for him, have it filled and
      get it in his system, so- and, therefore, we’re going to go ahead
      without any medication for Mr. Sneed.


      The Defendant correctly cites the test for determining the competency of

a defend ant to stan d trial in Ten nesse e. In order to stand trial, a defendant must

(1) be able to understand the nature and object of the proceedings against him,

(2) be able to consult with counsel, and (3) be capable of assisting in the

preparation of his defense. Macke y v. State, 537 S.W.2d 704, 707 (Tenn. Crim.

                                         -20-
App. 1975); State v. Stacy, 556 S.W.2d 552 (Tenn. Crim. App. 1977). The

determination of compe tency is within the discretion of the trial court. State v.

Caughron, 855 S.W.2d 526, 538 (Tenn. 1993). “The trial court’s determination

on competency will not be overturned absent a showing of an abuse of

discretion .” State v. Howa rd, 926 S.W.2d 579, 584 (Ten n. Crim. App . 1996).

After careful review of the record, we conclude that all three prongs of the

competency test have been met in the case before us.            Furthermore, the

Defendant has failed to demonstrate any prejudice resulting from his being

denied medic ation on th e day of trial.



      The judgment of the trial court is affirmed in all respects.




                                  _______________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



_______________________________
GARY R. WADE, PRESIDING JUDGE


_______________________________
JOSEPH M. TIPTON, JUDGE




                                           -21-
