         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                       May 2000 Session

                    STATE OF TENNESSEE v. JOY A. STINSON

                Direct Appeal from the Criminal Court for Anderson County
                        No. 97CR0261     James B. Scott, Jr., Judge



                                 No. E1999-02082-CCA-R3-CD
                                      September 29, 2000

The defendant was convicted of one count of theft of property over $1,000 for her unauthorized
charge of items at a retail store to her former employer’s account. The trial court sentenced her to
four years imprisonment, with three years suspended. On appeal, the defendant presents the issues
of whether the trial court erred in allowing the State to introduce the testimony of an alibi rebuttal
witness whom the State did not identify as a witness prior to trial, and in allowing the State to
present evidence which she alleges tied her to an uncharged crime. Based upon our review, we
affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Mart S. Cizek, Clinton, Tennessee, for the appellant, Joy A. Stinson.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Elizabeth J. Boatner, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

       The defendant was convicted of one count of theft of property valued over $1,000 and
sentenced to four years, with all but one year suspended. Following the trial court’s denial of her
motion for a new trial, the defendant filed a timely appeal. The defendant presents two issues on
appeal, which she states as follows:

               I.      Whether the court erred in allowing the State to introduce the
                       testimony of a rebuttal witness whose identity was not
                       revealed to the defense in compliance with discovery rules.
               II.    Whether the trial court erred in allowing into evidence an
                      uncharged crime that was unfairly prejudicial to the
                      defendant.

       Based upon our review, we affirm the judgment of the trial court.

                                             FACTS

       On September 2, 1997, the defendant, Joy A. Stinson, was charged with one count of theft
of property valued over $1,000. The indictment alleged that the defendant, who had been terminated
on April 1, 1996, from her position as housing manager at Ridgeview Psychiatric Hospital in Oak
Ridge, Tennessee, had charged items at K-Mart to the hospital’s account from December 30, 1996
to January 4, 1997.

         Trial was held on October 6, 1998. Jean Lantrip, facility manager at Ridgeview, testified
that the defendant had been employed by the hospital as a house manager from August 1994 until
April 1, 1996. During her tenure as hospital employee, Lantrip said, the defendant made purchases
for the hospital at the Oak Ridge K-Mart, where the hospital had a thirty-day revolving credit
account. Lantrip testified that the defendant, as an employee with purchasing authority, would have
had access to the hospital’s state sales tax exemption number.

        Lantrip further testified that the receipt K-Mart utilized for purchases by non-profit
organizations contained spaces for the name and address of the organization purchasing the items,
and for the purchasing employee’s signature. K-Mart required that the purchasing employee provide
the organization’s name and address, and sign the receipt. During the period in question, however,
according to Lantrip, “K-Mart did not require or even ask or accept the original copy” of the
hospital’s purchase order, which would have shown that the employee’s purchase had been
authorized and approved by the hospital.

        Lantrip testified that on three different days in December 1996 and January 1997
unauthorized purchases had been made at K-Mart on the hospital’s account. The receipts from the
transactions had all been signed “Janet Watson.” Lantrip said that $759.98 worth of electronics
equipment was charged on December 30, 1996, a $465 television set was charged on January 1,
1997, and a $227.93 videocassette recorder was charged on January 4, 1997. Lantrip stated that the
hospital did not have an employee named Janet Watson, and that it had neither authorized these
purchases, nor received any of these items. Consequently, the hospital had not paid the charges.

        Cindy Ann Coffman, K-Mart cashier from November 1996 until June 1997, testified that
on January 4, 1997, a woman charging items to the hospital had passed through her checkout line.
Coffman said that the woman had filled in the lines on the store’s receipt with the name and address
of the hospital, and had signed the receipt with the name “Janet Watson.” Coffman had not asked
for any identification. She had, however, asked for the hospital’s tax exempt number, which the
woman had provided. Coffman identified the defendant as the woman who had charged items to the
hospital.

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       Coffman said that she had known on January 4, 1997, that the defendant was not authorized
to purchase items for the hospital. She had been told by store security, however, to notify them if
the defendant came into the store, and to let them handle the situation. She notified security on
January 4, but the defendant was able to leave the store with the items.

        Coffman saw the defendant in the store again on February 5, 1997. On that day, the
defendant was originally in Coffman’s checkout line, but then moved to a line staffed by “Rosie,”
who was working the checkout line next to Coffman. Coffman said that she heard the defendant ask
Rosie if she needed a tax exempt number, and that the defendant then left the checkout line and the
store and did not come back. Coffman testified that she watched the defendant for the approximately
five minutes that she was in the checkout lines. Coffman stated that she later picked the defendant’s
photograph out of six photographs shown to her by Detective Bill White. She was positive that the
defendant was the woman who signed the January 4, 1997, receipt with the name “Janet Watson.”

        The prosecution sought to introduce the testimony of Abby Roseanna (“Rosie”) Silva, the
K-Mart cashier who handled the February 5, 1997, transaction with the defendant. The defense
raised a Tennessee Rule of Evidence 403 objection to this testimony, arguing that its probative value
was outweighed by the danger that it would cause unfair prejudice to the defendant. The trial court
overruled the objection, instructing the jury that the testimony was to be considered for identification
purposes only.

        Silva testified that on February 5, 1997, the defendant moved to her checkout line from
Coffman’s line. Silva said that the defendant handed Silva her driver’s license for identification.
The name on the license was that of the defendant, Stinson. Silva positively identified the defendant
as the woman who passed through her line that day. She said that she had, without any difficulty,
picked the defendant out of a group of photographs later shown to her by Detective White.

        Over the objection of the defense, the trial court allowed the prosecution to present, for
identification purposes only, the testimony of Joann Gaylor, resource coordinator of purchasing at
Ridgeview, who testified that she knew the defendant, and that she saw her in the K-Mart store on
February 5, 1997.

        Oak Ridge Police Detective William T. White testified that he investigated the thefts after
K-Mart’s loss prevention manager reported it to the police on February 5, 1997. White said that he
interviewed Coffman on April 1, 1997, and that at that time she had, without hesitation, picked the
defendant’s photograph out of a group of photographs that he showed her. White stated that
Coffman positively identified the defendant as the woman who charged the items to the hospital’s
account. In a separate interview, Silva positively identified the defendant by choosing her
photograph out of the same group of six photographs that he had shown Coffman.

       The defendant presented alibi testimony in an attempt to prove that she had not been at K-
Mart on January 1, 1997. The defendant’s mother, Joann Smith, testified that she talked by telephone
with the defendant several times during the afternoon of January 1, 1997. Smith said that her
daughter had been at her mother-in-law’s house when Smith called her that afternoon. The

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defendant’s husband testified that, although he could not be sure, he believed that the defendant had
been with him at his mother’s house on January 1, 1997. The defendant’s friend, Lana McDowell,
testified that she had a definite, specific memory of the defendant babysitting for her on January 1,
1997.

        The State sought to rebut the defendant’s alibi with testimony of Audra Lee Gipson,
investigator for the district attorney general’s office. The defense objected on the grounds that the
State had not notified the defense of the witness’s identity prior to trial. After first having the
prosecution examine the witness with the jury excused, the trial court permitted the witness to testify
in the presence of the jury.

        Gipson testified that he had interviewed alibi witnesses Joann Smith and Lana McDowell
before trial. Gipson said that when he interviewed her, Smith stated that she believed her daughter
had been at Smith’s home with her on January 1, 1997. Gipson testified that McDowell told him
that she believed the defendant babysat for her on January 1, 1997, but was not absolutely certain
that she had. On cross-examination, Gipson admitted that Smith had not mentioned whether it was
morning, afternoon, or evening that the defendant spent at her home.

        The jury found the defendant guilty, and on October 14, 1998, the trial court entered
judgment on the jury’s verdict. The trial court sentenced the defendant to a four-year prison term,
with three years suspended, and denied the defendant’s motion for a new trial. The defendant filed
a timely appeal to this court.

                                             ANALYSIS

                          I. Testimony of the State’s Rebuttal Witness

        The first issue the defendant presents is whether the trial court erred in allowing the State to
offer the testimony of its alibi rebuttal witness. The defendant argues that Investigator Gipson’s
testimony should have been barred because the State failed to disclose his identity prior to trial. She
asserts that the State’s failure to identify Gipson as a witness violates both Tennessee Rule of
Criminal Procedure 16, which states that a party has a continuing duty to disclose material evidence
to the opposing side as that evidence becomes available, and Tennessee Rule of Criminal Procedure
12.1(b), which states that the State has a duty to provide to defense counsel the name of any witness
it intends to call to rebut the testimony of the defendant’s alibi witnesses. The defendant contends
that the trial court’s failure to exclude Gipson’s testimony constitutes reversible error.

         The State argues that the trial court did not abuse its discretion in allowing the testimony.
The State points out that Rule 12.1 of the Tennessee Rules of Criminal Procedure provides that the
trial court may exclude the testimony of an undisclosed witness, but that the trial court is not
required to do so. The State asserts that it did not know, until the defendant’s alibi witnesses
testified at trial, revealing discrepancies from the accounts they had given Gipson, that it would need
to call Gipson as a rebuttal witness. The State contends that Rule 12.1 contemplates just such a
situation as that which occurred at trial, since subsection (c) of the rule states that a party has a

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continuing duty to promptly disclose the identity of any additional witness whose identity is learned
prior to or during trial. The State asserts that it disclosed its rebuttal witness to the defense
immediately at the conclusion of the alibi witnesses’ testimony, in accordance with Rule 12.1 (c).
The State argues that Rule 16 is inapplicable, because it expressly states that alibi witnesses are
governed by Rule 12.1.

      Tennessee Rule of Criminal Procedure 16(e) states that “Discovery of alibi witnesses is
governed by Rule 12.1.” Rule 12.1 states, in relevant part:

               Rule 12.1 Notice of Alibi. —(a) Notice by Defendant. — Upon
               written demand . . ., the defendant shall serve within ten days, . . .
               upon the district attorney general a written notice of an intention to
               offer a defense of alibi. Such notice by the defendant shall state the
               specific place or places at which the defendant claims to have been at
               the time of the alleged offense and the names and addresses of the
               witnesses upon whom the defendant intends to rely to establish such
               alibi.

               (b) Disclosure of information and Witness. — Within ten days
               thereafter . . . , but in no event less than ten days before trial, unless
               the court otherwise directs, the district attorney general shall serve
               upon the defendant or the defendant’s attorney a written notice stating
               the names and addresses of the witnesses upon whom the state
               intends to rely to establish the defendant’s presence at the scene of the
               alleged offense and any other witnesses to be relied on to rebut
               testimony of any of the defendant’s alibi witnesses.

               (c) Continuing Duty to Disclose. — If prior to or during trial a party
               learns of an additional witness whose identity, if known, should have
               been included in the information furnished under subdivision (a) or
               (b), the party shall promptly notify the other party or the other party’s
               attorney of the existence and identity of such additional witness.

               (d) Failure to Comply. — Upon the failure of either party to comply
               with the requirements of this rule, the court may exclude the
               testimony of any undisclosed witness offered by such party as to the
               defendant’s absence from or presence at, the scene of the alleged
               offense. . . .

               (e) Exceptions. — For good cause shown, the court may grant an
               exception to any of the requirements of this rule.
       ....



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Tenn. R. Crim. P. 12.1 (emphasis added). As the rule makes clear, the decision to exclude the
testimony of an undisclosed witness lies within the discretion of the trial court. See Tenn. R. Crim.
P. 12.1 (d) and (e); see also State v. Cory Lamont Gentry, No. 02C01-9708-CC-00304, 1998 WL
608212 at *3 (Tenn. Crim. App., Jackson, Sept. 14, 1998), perm. app. denied (Tenn. Mar. 8, 1999)
(stating that appellate court reviews trial court’s 12.1 ruling “under abuse of discretion standard”);
State v. Johnson, 673 S.W.2d 877, 883 (Tenn. Crim. App.), perm. app. denied (Tenn. 1984) (stating
that rule grants the court “latitude to either exclude the testimony, or, for good cause shown, grant
an exception to any of the requirements of the rule”). We review this issue, therefore, for an abuse
of discretion.

          At trial, the State argued that, because it could not have foreseen that the alibi witnesses
would change their stories, it was entitled to present rebuttal testimony. Although the trial court
initially appeared hesitant to accept the State’s argument, stating, “It would appear to me that the
spirit of discovery is for you to provide witnesses that you expect to call,” it ultimately decided to
allow the testimony. Allowing the testimony clearly was within the trial court’s discretion. We note
that the trial court acted to minimize any potential harm that the testimony might cause the defendant
by listening to the proffered testimony outside the jury’s presence before allowing the prosecution
to present the witness to the jury, by allowing the defense to cross-examine the witness, and by
affording the defense an opportunity to present surrebuttal. Under these circumstances, we can find
no abuse of discretion by the trial court in allowing the State to present its alibi rebuttal testimony.

            II. Evidence that the Defendant was Present at K-Mart on February 5

         The second issue the defendant raises is whether the trial court erred in allowing witnesses
to testify that the defendant was present at K-Mart on February 5, 1997. The defendant argues that
this testimony amounts to evidence of an uncharged crime, and should have been excluded under
Tennessee Rule of Evidence 403 on the grounds that its prejudicial effect outweighed its probative
value. The defendant also raises, for the first time on appeal, a Rule 404(b) objection to the
evidence, arguing that the State failed to follow the proper procedures, under 404(b), for
presentation of evidence of the defendant’s other crimes or bad acts.

       The State argues that the trial court did not abuse its discretion in allowing this testimony.
The State asserts that the testimony regarding the defendant’s presence in the store on February 5
was offered solely to prove identity, and that it was relevant to the issue of whether the defendant
was the woman who committed the thefts on December 30, 1996, January 1, 1997, and January 4,
1997.

        The admissibility of evidence generally lies within the sound discretion of the trial court.
State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999); State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997).
The trial court is accorded wide latitude in its decisions on the admissibility of evidence. Stinnett,
958 S.W.2d at 331; Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn. Ct. App.), perm. app.
denied (Tenn. 1999). The trial court’s decision to allow or disallow evidence will not be overturned
on appeal absent a showing that it has abused its broad discretion. Overstreet, 4 S.W.3d at 702; State


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v. Robinson, 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995). We review this issue, therefore, under
an abuse of discretion standard.

        On appeal, the defendant argues that the trial court’s allowance of the testimony of Silva and
Gaylor was error under both Tennessee Rule of Evidence 403 and Tennessee Rule of Evidence
404(b). However, the only objection that the defendant raised to the evidence at trial was offered
under Rule 403. Objections to evidence must be raised contemporaneously with the objectionable
testimony, and must state the specific ground upon which they are based. Overstreet, 4 S.W.3d at
702; State v. Crawford, 620 S.W.2d 543, 545 (Tenn. Crim. App.), perm. app. denied (Tenn. 1981).
An objection that is not raised at trial cannot be raised for the first time on appeal. Overstreet, 4
S.W.3d at 702; Crawford, 620 S.W.2d at 545. Consequently, we will consider only the Rule 403
objection that the defendant raised at trial.

         Tennessee Rule of Evidence 403 states that “[a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice[.]” Relevant
evidence is defined as “evidence having 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. The defendant apparently concedes the relevance of the
testimony regarding her February 5 presence in the store, but argues that its probative value is
outweighed by its prejudicial effect. We disagree.

         Silva’s testimony showed that the defendant, whom Coffman had identified as the woman
who charged items to the hospital on January 4, 1997, signing the receipt with the name “Janet
Watson,” had shown Silva a driver’s license with the name “Stinson.” Thus, Silva’s testimony was
relevant to the issue of whether the defendant was the woman who charged the items to the hospital
on the dates in question. Gaylor, resource coordinator of purchasing at Ridgeview, simply testified
that she knew and was familiar with the defendant, and that she had seen her in the Oak Ridge K-
Mart on February 5, 1997. Gaylor’s testimony was relevant to the issue of whether the defendant
was in the store on February 5 and was the woman who showed the “Stinson” driver’s license to
Silva.

        Silva did not testify that the defendant had either charged, or attempted to charge, items to
the hospital on February 5. Neither Silva nor Gaylor testified that the defendant acted in any
inappropriate or illegal manner. Moreover, the trial court, with regard to both witnesses’ testimony,
specifically instructed the jury that it was to consider the evidence offered for identification purposes
only. The defendant was in no way unfairly prejudiced by this testimony. Accordingly, we find no
abuse of discretion by the trial court in allowing the testimony.


                                           CONCLUSION

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



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      ___________________________________
      ALAN E. GLENN, JUDGE




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