         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 13, 2004

                  STATE OF TENNESSEE v. RONALD DOTSON

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 99-12264-65    Joseph B. Dailey, Judge



                     No. W2003-00259-CCA-R3-CD - Filed June 7, 2004




A Shelby County jury convicted the Appellant, Ronald Dotson, of two counts of aggravated robbery.
Following a sentencing hearing, Dotson was found to be a repeat violent offender and sentenced to
two consecutive sentences of life without parole. On appeal, Dotson argues that the trial court erred
in denying his motion for continuance based upon (1) the State’s failure to provide pre-trial
discovery and (2) the court’s ruling which permitted impeachment under Tennessee Rules of
Evidence 609. As a second issue, Dotson argues that the evidence is legally insufficient to support
his convictions. Finding no reversible error, the judgments of conviction are affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and
NORMA MCGEE OGLE, JJ., joined.

Robert B. Gaia, Memphis, Tennessee, for the Appellant, Ronald Dotson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michael
Markham, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy P.
Weirich, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

       Around noon on June 25, 1998, the Appellant entered Connie’s Pub in Memphis and, while
displaying a pistol, ordered the bartender, Angela Massey, to open the cash register and give him all
the money. After Ms. Massey complied, the Appellant approached a patron in the pub, Carl Reich,
and ordered Reich to give him his wallet. Reich complied and handed his wallet, which contained
approximately $300.00, to the Appellant. The Appellant then fled the bar. In September of 1998,
the Appellant was arrested in Wynne, Arkansas and gave a statement to investigators admitting his
involvement in the robbery at Connie’s Pub. He stated that he robbed both the bartender and the
customer by using a BB gun that looked like a .357 revolver.

        On October 28, 1999, a Shelby County grand jury returned two indictments against the
Appellant for the aggravated robberies of Angela Massey and Carl Reich. At trial, the State
introduced the Appellant’s statement admitting that he used a BB gun to rob both victims. The
robberies were also captured on video by a surveillance camera in the bar, and the video tape was
shown to the jury. At trial, both victims identified the Appellant as the person who robbed them.
The jury returned guilty verdicts on both charges of aggravated robbery. Based upon the Appellant’s
classification as a repeat violent offender, he received two consecutive life sentences without parole.1


                                                     Analysis

I. Motion for Continuance

       The Appellant contends that the trial court erred in denying his motion for a continuance,
which was predicated upon two separate grounds. First, the Appellant asserts that he should have
been granted a continuance to “reassess [defense] strategy” when the trial court ruled that two recent
convictions for aggravated robbery could be used for impeachment purposes.

        A hearing was held on the morning of trial prior to jury selection, wherein the State sought
to use six Illinois armed robbery convictions for impeachment purposes. The State had previously
provided notice of its intent to impeach the Appellant based upon these six convictions. The trial
court concluded that these convictions were not admissible under Tennessee Rule of Evidence 609,
as they were outside the ten-year limitation period. The State then sought to introduce two additional
convictions for aggravated robbery, which had recently occurred in Tennessee.2 However, these
convictions were not included in the State’s written notice, as required by Rule 609(b). The
Appellant sought to have these two convictions excluded based on the lack of written notice or, in
the alternative, to be granted a continuance. The trial court concluded that these convictions were
admissible, finding that trial counsel had notice because he was currently representing the Appellant
in post-conviction proceedings in both aggravated robbery cases. As the trial court was considering
the Appellant’s motion for continuance, the State abruptly withdrew its intent to impeach the
Appellant at trial.

         1
         The Appellant’s repeat violent offender classification was based upon his six Illinois convictions for armed
robbery. See Tenn. Code Ann. § 40-35-120 (2003).

         2
          The Appellant was convicted of aggravated robbery in case number 99-12261 and of aggravated robbery in
case number 99-12263 and, on the respective dates of September 22, 2000, and July 20, 2001, received sentences of life
without parole.

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       The following morning, the State requested revisitation of the issue and asked that it be
permitted to impeach the Appellant should he decide to testify. The trial court ruled that the
Appellant’s two recent convictions for aggravated robbery could be used for impeachment, as no
prejudice was established. The court reasoned that trial counsel was obviously proceeding to trial
with the impeachment motion pending and that an adverse ruling on the first day of trial, which
could have occurred, is not significantly different from an adverse ruling on the second day of trial.
Under these circumstances, the trial court concluded that additional time was not necessary to
“reassess defense strategy.”

         The Appellant argues that the trial court’s ruling conflicts with the requirements of
Tennessee Rules of Criminal Procedure 12.3 and Tennessee Rules of Evidence 609. Initially, we
would note that Rule 12.3 relates to the State’s notice to seek an increased sentence; thus, the rule
has no application to the issue before us. Furthermore, case law is well established that failure to
comply with the technical requirements of Rule 609 is harmless error if the Appellant was not
prejudiced by the lack of written notice. See State v. Barnard, 899 S.W.2d 617, 622 (Tenn. Crim.
App. 1994); see also State v. Andre D. Kimbrough, No. M2001-02149-CCA-R3-CD (Tenn. Crim.
App. at Nashville, Dec. 3, 2003); State v. Dean Byard, No. M2000-01410-CCA-R3-CD (Tenn. Crim.
App. at Nashville, Nov. 27, 2001); State v. Antonio Kendrick, No. 02-C-01-9604-CR00121 (Tenn.
Crim. App. at Jackson, Nov.5, 1997); State v. James Edward French, No. 03C01-9503-CR-00096
(Tenn. Crim. App. at Knoxville, Mar. 28, 1996).

        It is clear that trial counsel was aware of the convictions in question, as he was representing
the Appellant on post-conviction matters for these convictions. Additionally, as the trial court noted,
the Appellant’s trial counsel was, or should have been, prepared for a defense that included prior
convictions introduced for impeachment purposes, as the Rule 609 hearing on the prior armed
robbery convictions, which were noticed, was not conducted until the day of trial. After review of
the record, we agree with the trial court that the Appellant has not been unduly prejudiced by the
State’s noncompliance; thus, we find the error to be harmless. Tenn. R. App. P. 36(b); Tenn. R.
Crim. P 52(a).

         Second, the Appellant argues that the trial court erred in not granting his motion for
continuance when he learned on the second day of trial that the victim Reich had identified the
Appellant from a photo lineup.3 On the first day of trial in response to questioning from trial
counsel, the State informed counsel that Reich, as opposed to the victim Massey, had not participated
in a police photo identification line-up. On the second day of trial, the prosecutor informed trial
counsel that Reich had in fact identified the Appellant from a photo array. The prosecutor explained
that the identification material had been misfiled in another of the Appellant’s pending cases and was
only discovered the evening before. The State agreed not to use the photo identification evidence.
Based upon this assurance, the trial court denied the Appellant’s motion to continue. The Appellant
asserts that his “entire theory of . . . defense was thwarted by the misrepresentation as to the


       3
           W e note that one entire page of the Appellant’s argument of this issue was omitted from the brief submitted.



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nonexistence of [Carl Reich’s] photo array. . . .” The Appellant has again failed to show how
prejudice resulted from this ruling. He was only under the mistaken belief for less than one day, and
the State chose not to make any reference to the evidence. Indeed, as the trial court noted, if the
continuance had been granted, the photo identification would have been admissible, making the
State’s case stronger. Because we find no abuse of discretion in denying the motion for continuance,
this issue is without merit. State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995).

II. Sufficiency of the Evidence

        As his second issue, the Appellant asserts that the trial court erred in not granting his motion
for a new trial due to insufficiency of the evidence.4 Specifically, the Appellant argues that the
“state’s case was based on the eyewitness testimony which appellant was precluded from attacking.”
Though it is unclear from his brief, we assume that the Appellant is referring to the testimony of Carl
Reich.

         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);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). 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. 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." State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        The Appellant was convicted of two counts of aggravated robbery, which is defined as
robbery “[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402 (2003).
The State’s proof consisted of testimony from the two victims who identified the Appellant as the
person who took money from them, while displaying what they believed to be a gun. Moreover, the
Appellant’s admission to police that he had committed these robberies with a BB gun which looked

         4
            Although the Appellant frames his issue in terms of a sufficiency argument, he also appears to be arguing that
the verdict, when viewed as a whole, was against the weight of the evidence. It is the trial court, pursuant to Rule 33(f)
of the Tennessee Rules of Criminal Procedure, who has the authority to reverse a jury’s verdict when it determines that
the verdict is contrary to the weight of the evidence, and the accuracy of the court’s determination as a “thirteenth juror”
is not subject to appellate review. State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995) (citing State v. Burlison, 868
S.W .2d 713, 719 (Tenn. Crim. App. 1993)). An appellate court may grant a new trial only where the trial court has
“failed to act as the thirteenth juror.” Id. (emphasis added). In this case, the trial court approved the jury’s verdict by
overruling the Appellant’s motion for new trial; thus, the trial court exercised its authority as the thirteenth juror.
Therefore, we will not disturb the trial court’s determination that the weight of the evidence supported the jury verdict.
However, while the Appellant may not challenge the weight of the convicting evidence on appeal, he may challenge the
sufficiency of that convicting evidence. Thus, we construe the Appellant’s challenge as one to the sufficiency of the
evidence.

                                                            -4-
like a .357 revolver was introduced before the jury. We conclude that this evidence is more than
sufficient to support the convictions.


                                        CONCLUSION

       Finding no reversible error, the Appellant’s convictions for aggravated robbery are affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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