           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                      October 25, 2011 Session

                      STATE OF TENNESSEE v. GRETA COOPER

                       Appeal from the Criminal Court for Campbell County
                               No. 14172 E. Shayne Sexton, Judge



                       No. E2011-00590-CCA-R3-CD - Filed March 20, 2012


Appellant, Greta Cooper, was indicted along with two codefendents for multiple counts of
theft of property and forgery. After a jury trial, Appellant was convicted of eight counts of
theft of property valued over $500, three counts of theft of property valued over $1,000, one
count of theft of property valued over $10,000,1 and twelve counts of forgery. As a result
of the convictions, Appellant was sentenced to an effect sentence of three years, to be served
as six months in confinement followed by six years on probation. After the denial of a
motion for new trial, Appellant appealed. On appeal, she asserts that the trial court
improperly excluded a statement made by the victim to law enforcement that he gave
Appellant the money which was the subject of her theft convictions. We determine that
Appellant failed to properly raise the issue in a motion for new trial. Therefore, the issue is
waived absent a showing of plain error. After a review of the record, we decline to review
the issue for plain error because the trial court did not breach a clear and unequivocal rule
of law. Specifically, we agree with the trial court’s determination that the statement made
by Lonzia Taylor was not admissible as a statement against interest because it was made
under circumstances which render it unreliable. Accordingly, the judgment is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

D. Brent Gray, Jacksboro, Tennessee, for the appellant, Greta Cooper.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William P. Phillips, District Attorney General; and Michael O. Ripley, Assistant
District Attorney General, for the appellee, State of Tennessee.

       1
           This conviction was later dismissed.
                                                OPINION

                                          Factual Background

       In July of 2009, Appellant, Tamara Harness, and Bonnie Cooper were named in a
multi-count indictment for various counts of theft of property and forgery. Specifically,
Appellant was indicted on one count of theft of property valued under $500, nineteen counts
of theft of property valued over $500, seventeen counts of theft of property valued over
$1,000, and one count of theft of property valued over $60,000.2 Co-defendant Bonnie
Cooper was indicted with two counts of theft of property valued over $1,000 and three counts
of forgery. Co-defendant Tamara Harness was indicted with one count of theft of property
valued over $10,000.

       At trial, the State presented evidence that Appellant was a caregiver for an elderly
gentleman, Lonzia Taylor, between September 2007 and January 2009. According to the
State, Appellant cashed a number of checks, totaling over $30,000, from an account that the
victim shared with his daughter, Brenda Hackworth. In April of 2007, Ms. Hackworth
became increasingly concerned about Mr. Taylor’s ability to care for himself. Mr. Taylor
had undergone double knee replacement surgery and became forgetful.

       In December of 2008, Mr. Taylor’s physician, Dr. James Farris, saw Mr. Taylor in his
office. Dr. Farris had been Mr. Taylor’s physician since 1983. Mr. Taylor asked Dr. Farris
to prepare a letter indicating that he was of sound mind and body. Dr. Farris declined to
write the letter after administering a mini-mental examination to Mr. Taylor. According to
the doctor, Mr. Taylor was already suffering from “moderate to moderately severe
Dementia.” After the exam, the doctor performed a CT scan, which revealed “moderately
severe cerebral and cerebella atrophy,” or a shrinkage of the brain cells. Mr. Taylor was
placed on medication.

       In January of 2009, Mr. Taylor presented a note to Dr. Farris asking for a competency
evaluation. Dr. Farris offered to send Mr. Taylor to a neurologist, but Mr. Taylor declined.
In March of that same year, Dr. Farris drafted a letter concerning Mr. Taylor’s ability to
manage his financial affairs.

       In March of 2009, the Department of Human Services (“DHS”) received a referral
regarding Mr. Taylor. The origination of the referral is unclear from the record. DHS is

       2
           This charge was later reduced to one count of theft of property valued over $10,000.

                                                     -2-
responsible for investigating the alleged physical, sexual, and/or financial exploitation and
neglect of the elderly. After this time, the State sought to prevent Appellant from having any
contact with Mr. Taylor.

        In May of 2009, Mr. Taylor was evaluated by Dr. Odacir Oliveira, a geriatric
practitioner and expert in medical psychology, at the request of DHS. Dr. Oliveira performed
an evaluation and reviewed the CT scans taken by Dr. Farris. Mr. Taylor scored poorly on
the examination, making only a seventeen out of thirty. In Dr. Oliveira’s opinion, Mr. Taylor
was functioning at fifty percent mental capacity at the time of the evaluation. Further, Dr.
Oliveira determined that Mr. Taylor was not properly feeding himself or taking his prescribed
medications. Mr. Taylor insisted that he was able to manage his own finances but, when
asked, was unable to perform simple addition and subtraction.

        After the evaluation, Dr. Oliveira’s opinion was that Mr. Taylor’s “disease” started
in 2004 or 2005 and that by June of 2007, Mr. Taylor was incapable of managing his own
affairs.

       In June of 2009, Appellant signed an order in which she agreed to have no further
contact with Mr. Taylor. That order read:

       It is clearly shown that the rights of the Plaintiff, State of Tennessee,
       Department of Human Services are being, or will be, violated by the conduct
       of the Defendants and that the Defendants have exploited Lonzia Taylor and
       the Plaintiff will suffer immediate and irreparable harm to its ability to carry
       out its statutory right and duty to protect the adult citizens of Tennessee from
       abusive, negligent or exploitive caretakers under the provisions of Tennessee
       Code Annotated §§ 76-6-101 et seq. The Defendants should, therefore, be
       permanently enjoined from providing care for Lonzia Taylor and/or from
       telephoning, contacting, or otherwise communicating with Mr. Taylor, directly
       or indirectly or coming about Mr. Taylor for any purpose.

       Ms. Hackworth became conservator of Mr. Taylor’s estate in July of 2009 after he was
declared incompetent to manage his own affairs. In August of 2009, Mr. Taylor moved into
an assisted living facility.

       The State’s proof at trial was that Appellant cashed a number of checks, totaling over
$30,000, from an account that the victim shared with Ms. Hackworth. Appellant’s actions
were discovered when she tried to cash a check at the drive-thru of First Volunteer Bank,
where the victim had a checking account, and there were insufficient funds in the account.
The teller informed her supervisor, Cindy Reynolds, of the situation. Ms. Reynolds reviewed

                                             -3-
the account and made the determination that the account activity was somewhat abnormal.
The bank manager was informed, and Ms. Hackworth was notified. Ms. Hackworth was
shocked to learn that the account was low on funds.

       The situation was investigated by Detective Jason Henegar. Ms. Hackworth supplied
the victim’s check register. The register did not contain any notations for checks written by
the victim to Appellant. When Detective Henegar interviewed Appellant, she admitted that
she signed some of the checks.

        The State presented additional evidence with regard to how Appellant was able to get
money from Mr. Taylor. They introduced a picture of Appellant wearing lingerie as well as
a bottle of Viagra with some pills missing.

       The defense utilized the testimony of handwriting expert Dr. Larry Miller from East
Tennessee State University. He reviewed all of the checks that were cashed and opined that
Mr. Taylor had signed all of the checks. Dr. Miller noted that some of the checks had been
altered or changed after they were initially written. Dr. Miller testified that the changes on
some of the checks were consistent with Mr. Taylor’s handwriting.

       At the conclusion of the proof, Appellant was convicted of eight counts of theft of
property valued over $500, three counts of theft of property valued over $1,000, one count
of theft of property valued over $10,000,3 and twelve counts of forgery. As a result of the
convictions, Appellant was sentenced to an effective sentence of three years, to be served as
six months in confinement followed by six years on probation.

        Appellant filed a motion for new trial in which she argued that the State failed to
present sufficient evidence. At the hearing on the motion, defense counsel raised the
additional issue regarding the exclusion of Mr. Taylor’s statement from evidence. Counsel
for the defense did not file an amended motion for new trial. The State argued that the issue
was waived because it was not included in a written motion for new trial. The trial court
denied the motion for new trial, determining that the evidence was sufficient and that there
was no mechanism by which the statement of Mr. Taylor could have been admitted at trial
due to his incompetence. Appellant filed a timely notice of appeal.

                                                  Analysis

       On appeal, Appellant insists that the trial court erred by excluding as hearsay an audio
recording of the victim’s statement that he gave Appellant the money which was the subject

       3
           This conviction was later dismissed.

                                                    -4-
of her theft convictions. Specifically, Appellant argues that the trial court abused its
discretion in excluding the audio recording because Mr. Taylor was “unavailable” to testify
at trial due to his dementia. Therefore, the statement was admissible as a statement against
interest under Tennessee Rule of Evidence 804(b) because the statement exonerated
Appellant. The State, on the other hand, argues that Appellant has waived the issue for
failing to present it in a written motion for new trial. Additionally, the State contends that
Appellant is unable to establish plain error in the record that would provide relief.

       Initially, we must examine the State’s argument that this issue is not properly before
this Court. As noted by the State, Appellant did not raise any issue with regard to the
exclusion of Mr. Taylor’s statement in a written motion for new trial, as required by
Tennessee Rule of Appellate Procedure 3(e). That rule provides, in pertinent part:

       [I]n all cases tried by a jury, no issue presented for review shall be predicated
       upon error in the admission or exclusion of evidence, jury instructions granted
       or refused, misconduct of jurors, parties or counsel, or other action committed
       or occurring during the trial of the case, or other ground upon which a new
       trial is sought, unless the same was specifically stated in a motion for a new
       trial; otherwise such issues will be treated as waived.

Tenn. R. App. P. 3.

         Additionally, “[a] motion for a new trial shall be in writing or, if made orally in open
court, be reduced to writing, within thirty days of the date the order of sentence is entered.
The court shall liberally grant motions to amend the motion for new trial until the day of the
hearing on the motion for a new trial.” Tenn. R. Crim. P. 33(b) (emphasis added). Further,
a trial court loses jurisdiction with the filing of a notice of appeal. See State v. Pendergrass,
937 S.W.2d 834, 837 (Tenn. 1996). In the case herein, Appellant raised the issue orally at
the hearing on the motion for new trial but failed to reduce the issue to writing or submit an
amended motion for new trial within thirty days. Therefore, we are precluded from
considering the issue raised by Appellant on appeal unless it rises to the level of plain error.

       In order to review an issue under the plain error doctrine, five factors must be present:
(1) the record must clearly establish what occurred in the trial court; (2) a clear and
unequivocal rule of law must have been breached; (3) a substantial right of the defendant
must have been adversely affected; (4) the accused did not waive the issue for tactical
reasons; and (5) consideration of the error is necessary to do substantial justice. See State
v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting this Court’s plain error test set forth in
State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994)); see also Tenn. R. Crim.
P. 36(b).

                                               -5-
       Appellant complains that the trial court improperly excluded the audio recording of
Mr. Taylor’s statement as hearsay because it falls under an exception to the rule against
admitting hearsay evidence. “‘Hearsay’ is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these rules
or otherwise by law.” Tenn. R. Evid. 802. Tennessee Rules of Evidence 803 and 804 provide
exceptions to the general rule of inadmissibility of hearsay.

      As applicable to the case herein, unavailability of a witness is defined in Tennessee
Rule of Evidence 804. It includes instances in which the declarant:

       (1) is exempted by ruling of the court on the grounds of privilege from
       testifying concerning the subject matter of the declarant’s statement; or

       (2) persists in refusing to testify concerning the subject matter of the
       declarant’s statement despite an order of the court to do so; or

       (3) demonstrates a lack of memory of the subject matter of the declarant’s
       statement; or

       (4) is unable to be present or to testify at the hearing because of the declarant’s
       death or then existing physical or mental illness or infirmity;

       (5) is absent from the hearing and the proponent of a statement has been
       unable to procure the declarant’s attendance by process; or

               ....

              A declarant is not unavailable as a witness if exemption, refusal, claim
       of lack of memory, inability, or absence is due to the procurement or
       wrongdoing of the proponent of a statement for the purpose of preventing the
       witness from attending or testifying.

Tenn. R. Evid. 804(a).

       Rule 804(b)(3) of the Tennessee Rules of Evidence states:

       (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if
       the declarant is unavailable as a witness:

                                               -6-
               ....

       (3) Statement Against Interest. A statement which was at the time of its
       making so far contrary to the declarant’s pecuniary or proprietary interest, . .
       . , that a reasonable person in the declarant’s position would not have made the
       statement unless believing it to be true.

It is up to the trial court to determine whether a statement is believable, and this Court will
not overturn the trial court’s decision in this regard unless there is an abuse of discretion. See
State v. James Blanton, No. 01C01-9307-CC-00218, 1996 WL 219609, at *33-34 (Tenn.
Crim. App., at Nashville, Apr. 30, 1996).

       To begin our analysis, we must first review the trial court’s admission of the hearsay
evidence with the de novo standard of review. At trial, Appellant sought to introduce Mr.
Taylor’s audio statement to police after Appellant’s arrest. Appellant argued that the
statement was made prior to the formal declaration of incompetence and that in the statement,
Mr. Taylor “states clearly and reliably that he gave the money to the defendant.” During
discussion on the matter, the parties agreed that Mr. Taylor was unavailable as a witness. At
the time of trial, Mr. Taylor was living in an assisted living facility and suffering from
dementia.

      We agree with the parties that the statement is hearsay. It is an out-of-court statement
made by someone other than the declarant that is offered for the truth of the matter asserted.4
Additionally, we agree that the witness was unavailable at the time of trial.

       Next we must determine if the statement fits within any of the recognized hearsay
exceptions, in other words, does Mr. Taylor’s audio interview qualify as a statement against
interest. The trial court determined that the statement was not actually a statement against
the victim’s pecuniary interests, because of the victim’s incompetence, and, moreover, the
fact that the statement was unreliable. Further, the trial court determined that the victim
probably did not realize that the statement was against his own interest at the time it was
made.

       In order to determine whether the statement was a statement against interest and,
therefore, admissible despite the fact that it was hearsay, we look to the “cornerstone” of the
exception for statements against interest. To qualify, it should appear that:



       4
        Appellant does not contend that Mr. Taylor’s statement was offered to show its effect on
Appellant’s state of mind, but rather that Mr. Taylor made an actual gift of the money to Appellant.

                                                -7-
       [A] reasonable person similarly situated to the declarant would not have made
       the statement unless the reasonable person believed it was true. In turn, this
       statement means that a reasonable declarant would have realized it was against
       his or her interest. The important time is when the statement was made.

              Rule 804(b)(3) does not specifically provide that the declarant must
       have personally known that the statement was against his or her interests when
       it was made. However, this knowledge is the reason a hearsay statement is
       viewed as sufficiently reliable to be admitted, and the evidence should not be
       admitted if it is established that the declarant did not know that the statement
       was harmful. For example, if the declarant actually believed that he or she was
       saying something that would be helpful, reliability is questionable and the
       statement should not be admitted under this hearsay exception.

Neil P. Cohen et al., Tennessee Law of Evidence, § 8.36[5], at 8-161 (5th ed. 2005). Thus,
our courts have held that a hearsay statement can only be admitted if the circumstances
surrounding the statement are such that the statement is sufficiently reliable. State v. Adrien
Porterfield, No. W2006-00169-CCA-R3-CD, 2007 WL 3005349 (Tenn. Crim. App., at
Jackson, Oct. 15, 2007).

        In the case herein, we determine that the statement was not sufficiently reliable. There
was testimony at trial that Mr. Taylor was suffering from mild to moderate Dementia in
December of 2008, prior to his statement to authorities. Thus, the hearsay statement was not
admissible. Therefore, in our view, Appellant has failed to show that the trial court violated
a clear and unequivocal rule of law with respect to the exclusion of the evidence as hearsay.
In other words, plain error review is not necessary. Appellant is not entitled to relief.

                                          Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE

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