         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  October 28, 2014 Session

           STATE OF TENNESSEE v. THOMAS WILLIAM BROWN

                  Appeal from the Circuit Court for Williamson County
                      No. I-CR044799       Robbie T. Beal, Judge


                No. M2013-02327-CCA-R3-CD - Filed February 3, 2015


Appellant, Thomas William Brown, was convicted by a jury of attempted aggravated
burglary and sentenced to four years in the Tennessee Department of Correction. On appeal,
he argues that the trial court should have suppressed his statements to the police immediately
after his arrest, that the evidence was contrary to the weight of the verdict, that the trial court
erred by allowing the State to present evidence that witnesses identified appellant’s shirt in
a “show up” procedure, that the trial court erred by allowing the CAD Operational Report
into evidence during the State’s rebuttal proof, and that the trial court erred by denying a
special jury instruction request. Following our careful review of the evidence, we have
concluded that the evidence was insufficient to support appellant’s conviction for attempted
aggravated burglary and therefore reverse the judgment of the trial court. Appellant’s charge
is dismissed.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

R OGER A. P AGE, J., delivered the opinion of the court, in which JOHN E VERETT W ILLIAMS
and R OBERT H. M ONTGOMERY, J R., JJ., joined.

David L. Raybin and Vincent P. Wyatt (on appeal), Nashville, Tennessee; and Lee E. Dryer
(at trial), Franklin, Tennessee, for the appellant, Thomas William Brown.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
Kim R. Helper, District Attorney General; and Mary Katharine White, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                               OPINION

                                                 I. Facts

        This case stems from two alleged attempted aggravated burglaries at a Franklin,
Tennessee apartment on December 9, 2009. Appellant was arrested near the apartment that
night and was later charged with two counts of attempted aggravated burglary and one count
of possession of burglary tools. The trial court dismissed the possession of burglary tools
charge after the State presented its proof during appellant’s trial. The jury acquitted appellant
of the first count of attempted aggravated burglary. The jury found him guilty of the second
count of attempted aggravated burglary, and the trial court sentenced him to four years in the
Tennessee Department of Correction.

        At appellant’s trial, Ashley Ruttencutter testified that on December 9, 2009, someone
attempted to burglarize the apartment in which she lived with her mother. She said that she
returned home from school between 3:00 and 3:30 p.m. that day and locked the deadbolt after
she entered the apartment. She went upstairs and had begun doing homework when she
heard someone “mess[ing] with the lock.” Ashley1 testified that she called out that she was
coming but that she looked through the peep hole before opening the door. When she
realized that she did not recognize the person at the door, she did not open it. Instead, she
ran upstairs and called her mother. Her mother called the apartment complex to determine
whether a maintenance worker was attempting to gain access to their apartment, but she was
told that no one from the apartment complex should be at their apartment. Ashley testified
that this incident occurred around 4:00 p.m. She further testified that the sound being made
at the door was “louder than [the] normal sound of just a key going into the door.” She said
that based on what she observed, the door would have opened if the deadbolt had been
unlocked. Ashley testified that the person she observed through the peep hole was a “hefty
sized guy” with “salt and pepper colored hair” who was wearing “a jean[-]like – kind of like
those flannel type shirts that has a collar.” She was unsure whether the shirt had buttons.
Ashley testified that soon thereafter, maintenance workers arrived at her apartment, including
a worker named Ariel. She asked Ariel whether he had seen anyone, and he had not. Ariel
changed the lock and told her that the lock “look[ed] like it[] [had] been messed with.”
Ashley said that “[t]here were scratches on the door that were not there before.” She gave
a report to the police that afternoon.

       Ashley testified that later that night, around 10:00 p.m., her mother said she had
“heard somebody at the door again” but thought that she might be “just paranoid, like maybe


        1
         Because two witnesses share the same last name, we will refer to them by their first names to avoid
confusion. We mean no disrespect by this practice.

                                                    -2-
[she was] imagining it.” Ashley said that she did not personally see anything with regard to
this second incident; however, her mother called 9-1-1, and the police soon arrived. Ashley
said that while the police were talking to them, the officers “heard something in the woods.”
The officers left to investigate, and when they returned, the officers reported that “they
caught the guy.” The police showed her a shirt and asked her if it was the same, and she
responded that it was. She testified that the shirt was “the exact same type of shirt that [she]
described earlier.” Ashley also identified the shirt, which had been preserved as evidence,
in the courtroom.

       On cross-examination, Ashley testified that she called her mother at 3:57 p.m. that day
about the person trying to get into the apartment. She knew the exact time because her
telephone recorded the time.

       Tabitha Ray Ruttencutter, Ashley’s mother, testified that Ashley called her during the
afternoon of December 9, 2009, to tell her that someone was trying to get into their
apartment. Tabitha called the apartment complex and asked them to send someone over to
the apartment. She also called her ex-husband, Ashley’s father, who in turn called the police.
When Tabitha returned home, apartment custodians asked her whether to change the locks
because “there was evidence . . . that somebody was trying to get in.” She allowed the
custodians to change the lock.

       Tabitha testified that later that evening, she heard scratching at the door, “scratching
inside the key hole,” and heard “the door jiggling.” She said that she was standing on the
landing upstairs and that she saw the door handle “moving a little bit.” The movement
stopped and started again, “then all of a sudden a few seconds later the guy walked away.”
She said that she called the police when she realized that it was more than her imagination.
Tabitha testified that this happened at 9:50 p.m. and recalled that she had looked at a clock.
She said that she saw the man walking on the sidewalk outside her building. He had a duffle
bag and was between 5'9" and 5'11". She said that he was “thick” and was wearing “a blue[-
]like denim shirt . . . with blue jeans and a cap.” Tabitha stated that the shirt was long-
sleeved and was probably a button-up shirt because it had a collar. When asked how she
knew that the man she saw through the window had been at her door, she stated,

       Because as soon as it stopped, the jiggling of the door and trying to open it, I
       seen [sic] a shadow on the window down there, because we have a window
       right downstairs to the left of the door, and I saw a shadow walk and then all
       of a sudden he appears right there.

Tabitha testified that she called 9-1-1. The State played a recording of the 9-1-1 tape for the
jury. In the recording, Tabitha stated that the man she saw had dark hair. She clarified in her

                                              -3-
testimony that she was not sure whether the man’s hat or hair was dark. She said that the
police had her identify a shirt, which she said was a long-sleeved, blue denim button-up shirt
that “looked like the one that he was wearing.” Tabitha testified that after this incident, the
apartment complex placed a spotlight outside and gave her a “door jammer.” She said that
the person outside that night did not have permission to enter her home.

        Franklin Police Officer Chris Hollingsworth testified that he responded to the
Ruttencutters’ first call during the afternoon of December 9, 2009. He said that he received
the call at approximately 3:45 p.m. When he arrived, Ashley described the man she had seen
through the peep hole. The maintenance workers had already changed the locks and disposed
of the original lock. Later that evening, he heard over the radio that an officer was
dispatched to the Ruttencutters’ address, so he also responded. When he arrived, he
interviewed the Ruttencutters and began to leave. However, as he was walking on the
sidewalk, he “heard a noise that sounded as if someone was walking in the woods . . . across
the road.” He and other officers went to investigate. They shined their flashlights into the
woods and heard someone moving quickly through the woods. Officer Hollingsworth
“began running across that wood line when [he] observed a white male com[ing] out of the
wood line.” Officer Hollingsworth testified that the man was “medium sized” and was “in
the process of removing a blue shirt.” He observed that the man was “wet from head to toe
from having crossed that creek.” Officer Hollingsworth told the man to show his hands, and
the man initially complied but then began “to manipulate something around his waist.” The
man threw off a glove and then turned to Officer Hollingsworth with his hands in the air.
Officer Hollingsworth instructed the man to get on the ground. When the man complied,
Officer Hollingsworth handcuffed him. The man’s shirt and gloves were collected from the
ground by other officers. Officer Hollingsworth asked the man for his name and address and
inquired why he was at the apartments. The man responded that he was Thomas Brown and
gave the officer his Franklin address on Gist Street. Appellant “said that he had been at
dinner with a friend and was looking at the apartments, thinking of moving there.” Officer
Hollingsworth said that he “asked him why then was he in the woods because there was [sic]
obviously no apartments in the wood line.” Appellant replied “that he saw some people with
some flashlights and he became scared, so he got into the wood line to . . . hide from them.”
Officer Hollingsworth placed appellant in the back of another officer’s patrol car. He then
helped gather evidence that appellant had dropped and returned to the apartment.

       On cross-examination, Officer Hollingsworth agreed that the call for the second
incident at the Ruttencutters’ home came at 9:45 p.m. He further agreed that he did not
record his interaction with appellant.

       Franklin Police Officer Ryan Frazier testified that appellant sat in his patrol car the
night of the alleged burglary while they waited for the investigating detective to come to the

                                              -4-
scene. Officer Frazier said that appellant asked him what was going on. Officer Frazier told
him that they were waiting for the detective. Officer Frazier recalled that appellant asked
him to turn the heat down in the car. Appellant also told Officer Frazier, “‘All I know is I
went out to eat with my friend,’” “‘I’m here looking for a place to stay and as soon as I can
get out of here back to Florida, that’s where I’m going,’” “‘And that’s my U-Haul right
there,’” and “‘I’m just wanting to go home.’” In response to everything appellant said,
Officer Frazier testified that he “told him just to hold on, hang out” with the officer until the
detective arrived. Officer Frazier said that he did not ask appellant any questions. Detective
Robert Lindsey arrived and read appellant’s constitutional rights to him, and then Officer
Frazier transported appellant to the police station.

        Franklin Police Officer Charlie Richards testified that he brought Titan, his K-9
partner, to the scene to see whether they could be of assistance to the investigation.
Appellant had already been taken into custody by the time that Officer Richards arrived.
Officer Richards said that he and Titan were standing on the road between the apartment
complex and a subdivision when Titan began following a scent on his own volition. Titan
led Officer Richards to the landscaped area at the front gates of the apartment complex.
There, Officer Richards found an air compressor and a bag. The bag contained fittings for
the air compressor, a set of earrings, and business cards on which were printed appellant’s
name. Another officer stayed with the bag, and Titan continued tracking the scent. Titan and
Officer Richards went into the wooded area and through a creek. They did not find any other
evidence along the way.

        Franklin Police Officer Megan Valentin testified that she was in charge of collecting
the evidence at the scene. She identified several items associated with this case: a jean
jacket, a flannel shirt, a pair of gloves, a Nike hat, and a duffle bag containing a belt and a
flashlight.

       Ariel Ernesto Picado testified that he was the maintenance supervisor at the apartment
complex where the Ruttencutters lived. On December 9, 2009, personnel from the apartment
complex asked Mr. Picado to check the area around Building 9 because of a reported
attempted burglary in that building. Mr. Picado and another gentleman looked around
Buildings 9 and 10, the wooded area behind the buildings, and the road leading to a church
down the hill, but they did not see anything. Mr. Picado testified that he replaced the
deadbolt lock on the Ruttencutters’ door. He said that the original lock “had some dents on
it on the side, and the door had some scratches on it, like somebody was trying to pry it
open.” Mr. Picado said that he was called later that evening to inspect the Ruttencutters’
door and to determine whether a man sitting in the backseat of a patrol car was a resident of
the apartment complex. Mr. Picado testified that the man was not a resident. Regarding
whether he saw appellant’s U-Haul that day, Mr. Picado said that he saw the U-Haul before

                                               -5-
receiving the first call. It was gone later in the day but was back when he received the
second call. It was parked in a different manner, however. He recognized it as the same U-
Haul because of the markings on it. Mr. Picado said that he changed the lock again the next
day.

       Detective Robert Lindsey testified that he was the lead investigator for these incidents.
He first encountered appellant while appellant was sitting in Officer Frazier’s patrol car.
Detective Lindsey read appellant his constitutional rights, and appellant responded that “he’d
be happy to speak to [Detective Lindsey] to clear up any misunderstanding of what was going
on.” Detective Lindsey testified that appellant

       said that he had been in the area looking at an apartment, and he was hoping
       to move back up there, and he was just over, looking to see if it was a place he
       wanted to move to, and that was his U-Haul and gave me consent to look into
       it.

Detective Lindsey opened the U-Haul and found three items of furniture inside. He also
found a copy of the rental agreement. Detective Lindsey photographed the lock on the
Ruttencutters’ door and testified that “there were, what appeared to be, fresh scratches on the
lock.”

        Detective Lindsey testified that appellant gave a formal statement at the police station.
Appellant told Detective Lindsey that he had moved to Franklin after losing his job in
Florida. He had recently lost his job in Franklin and was in the process of moving back to
Florida, hence the U-Haul rental. He also told Detective Lindsey that “he liked the area so
much, he thought about living here. . . . [T]he reason he was in the apartment complex was
to see if it was some place he wanted to live.” The address appellant gave as his home in
Franklin was approximately five miles from the Ruttencutters’ apartment.

       Following Detective Lindsey’s testimony, the State rested its case-in-chief. Appellant
moved for a judgment of acquittal on all counts, and the trial court granted the motion as to
the possession of burglary tools count.

       Appellant presented several witnesses on his behalf. David Elder testified that he met
appellant when appellant was a contractor for the company for which Mr. Elder worked.
They shared a mutual hobby of “jeeping,” and both participated in Jeep outings. Mr. Elder
noted that appellant would collect rocks every place that they went. On December 9, 2009,
Mr. Elder was in Nashville for work and learned that appellant was in the area. He called
appellant, and they agreed to meet for dinner that evening and for Mr. Elder to help appellant
move furniture. They met at a store so that they could go together to the restaurant, Macaroni

                                               -6-
Grill. Mr. Elder testified that they arrived at the restaurant around 8:00 p.m. and left forty-
five minutes later. They went to appellant’s home and loaded furniture. Mr. Elder estimated
that they moved furniture for over an hour. Mr. Elder did not know how long it took to drive
from the restaurant to appellant’s home.

       Sheila Witt testified that she was friends with appellant. She recalled that on
December 9, 2009, she gave appellant a ride from the airport to the U-Haul location. She
picked him up around 2:30. She returned to work between 3:00 and 3:30.

       Karen Brown, appellant’s wife, testified that they had been married for twenty years.
She said that appellant temporarily took a job in Franklin while “[h]e was trying to build up
a business.” Mrs. Brown testified that she and appellant collected rocks when they traveled.
They used the rocks in their flower beds at their home in Florida. The jury was shown
pictures of the flower beds. Mrs. Brown said that she and her children visited appellant in
Tennessee in June 2009. She recalled that she and appellant had discussed relocating to
Tennessee because they liked the area better than where they lived in Florida. Mrs. Brown
said that on December 9, 2009, she drove appellant to the airport in Florida because he was
going to fly to Tennessee to pack the remainder of his belongings. Appellant called her
around 1:30 p.m. Eastern time and again around 6:00 p.m. Eastern time. She received a call
from a Franklin Police officer using appellant’s business telephone between 1:30 and 2:00
a.m. Central time on December 10. Mrs. Brown said that she was shocked when she learned
that appellant had been arrested.

       On cross-examination, Mrs. Brown testified that appellant had been planning on
returning to Florida because his business, GEO Mobility, had entered into a contract with
Rail America, in Jacksonville, Florida. He had been working for Smart Data Strategies in
Franklin while waiting for his business to be awarded a contract. Mrs. Brown said that she
could not recall what kind of luggage appellant took to the airport that day but that she
remembered he carried clothes with him.

       Appellant, testifying on his own behalf, said that he had been living in Franklin while
he worked for Smart Data Strategies. His family visited him in June, and he discussed with
his family the possibility of relocating to Franklin because he liked the outdoor lifestyle that
the area offered. He recalled going with his family to the creek near the apartments where
the Ruttencutters lived. They collected rocks there and played in the creek. He returned to
Florida in October 2009 when his own company, GEO Mobility, received a contract in
Florida with Rail America.

       Appellant testified that he flew to Nashville on December 9, 2009, to pack up
furniture at the apartment in which he had been living while he worked for Smart Data

                                              -7-
Strategies. His wife drove him to the airport that day, and Sheila Witt picked him up.
Because his flight had been delayed, he did not want to keep Ms. Witt away from her work
any longer than necessary, so he had her drive him straight to the U-Haul rental location.
Then, he returned to the airport to gather his luggage. He explained that the airline showed
that he did not check any baggage because his luggage had originally been a carry-on bag.
The bag would not fit in the overhead bins, so a flight attendant took it and instructed him
to pick it up at the carousel upon landing. Appellant testified that he withdrew money from
the teller machine at the airport at 3:29 p.m. He said that he recalled being there at that time
and that his bank records also reflected the withdrawal. Appellant went straight to the
apartment where he had been living in Franklin. He estimated that his apartment was twenty-
eight to thirty miles from the airport. He stayed at his apartment until approximately 7:15
p.m., at which time he left to meet David Elder. He met Mr. Elder at 7:30, and they went to
Macaroni Grill. The receipt showed that they paid for their dinner at 8:40 p.m. and left
shortly thereafter. He and Mr. Elder went to his apartment and began moving furniture.
Appellant estimated that they moved furniture for an hour.

        Appellant testified that he then wanted to check out the Alara apartment complex,
previously established as where the Ruttencutters lived, and gather rocks from the nearby
creek. Appellant said that his wife wanted lots of rocks to complete some of their flower
beds and that he only had that evening to go to the apartment complex because he was
driving to his parents’ house early the next day. He drove to the apartment complex and
parked his U-Haul. Appellant said that he checked out the amenity area and then walked
towards the creek. He saw what he thought was a rock near a planting bed in the apartment
complex, but when he came closer, he realized it was a piece of equipment, specifically the
air compressor about which the police testified earlier. He said that he “just . . . forgot” his
bag by the air compressor. Appellant agreed that he owned two air compressors but stated
that the air compressor at the apartment complex was not his. Appellant proceeded to the
creek. He estimated that he arrived at the apartment complex at “probably 10:00, 10:20” and
arrived at the creek at 10:25 p.m. Appellant testified that he fell into the creek and that it
took him several seconds to extract himself from the water. He said that it was very cold and
that he began taking his shirt off because it was wet. Appellant said that he heard yelling and
saw flashlights, which “scared [him] a little bit.” He stated that he had started taking his
gloves off because they were hindering the removal of his shirt when he heard someone say,
“‘[G]et down on the ground.’” Appellant was not sure whether the person had identified
himself as a police officer, but because the person sounded like a police officer, appellant
complied with the order and was handcuffed. He recalled being asked why he was in the
area and that Detective Lindsey read him his constitutional rights.

       On cross-examination, appellant agreed that he never told the police about his
intention to collect rocks at the creek. He said that he was never asked why he was at the

                                              -8-
creek. Appellant stated, “I was asked why I was at the apartment complex. . . . It would be
rather improper for me to say I was collecting rocks at the apartment complex.” As to why
he did not explain to the police that he had fallen in the creek while collecting rocks,
appellant said that he was in shock to a certain extent due to the cold. Appellant did not
believe that Detective Lindsey ever asked him why he had been at the creek.

       In rebuttal, the State recalled Officer Hollingsworth to the stand. Officer
Hollingsworth testified that a “CAD report is what the dispatch puts in to the computer when
someone calls in to 9-1-1.” He said that the report also details officer activity, such as when
an officer is en route to a scene. Officer Hollingsworth testified that the dispatcher “should
be typing those notes in the computer as the radio traffic is made relating to that call.” He
agreed that the report is kept in the ordinary course of business. He said that he could gain
access to a CAD report by asking dispatchers for the report and that the CAD report was
sometimes on the computer system that the police used to generate their reports. Officer
Hollingsworth identified Exhibit 36 as “look[ing] like a standard CAD Operation Report
from the dispatch of the police department” and that the details on the report “look[ed] like
it belong[ed]” to the call from the Ruttencutters on December 9, 2009. Officer
Hollingsworth testified that the document stated that the call from the Ruttencutters was
received at 10:10 p.m., that a unit was dispatched at 10:13 p.m., and that he arrived at 10:22
p.m.

       On cross-examination, Officer Hollingsworth agreed that his own report indicated that
the Ruttencutters’ call came at 21:45 (9:45 p.m.). He further agreed that he did not generate
the CAD report and that he had no way of knowing whether the dispatcher’s clock was
incorrect. Officer Hollingsworth stated that he would “stand by the accuracy of [his own]
report.” He further stated, “I am not standing by the accuracy of anything other than what
I wrote.”

       Following the close of proof and deliberations, the jury acquitted appellant of the first
count of attempted aggravated burglary, which was related to the afternoon attempt to enter
the Ruttencutters’ apartment. The jury found appellant guilty of the second count of
attempted aggravated burglary, relating to the incident at night. Subsequently, the trial court
sentenced appellant to four years in the Tennessee Department of Correction. It is from this
judgment that appellant now appeals.

                                         II. Analysis

        On appeal, appellant argues that the trial court should have suppressed his statements
to the police immediately after his arrest, that the evidence was contrary to the weight of the
verdict, that the trial court erred by allowing the State to present evidence that the

                                              -9-
Ruttencutters identified appellant’s shirt in a “show up” procedure, that the trial court erred
by allowing the CAD Operational Report into evidence during the State’s rebuttal proof, and
that the trial court erred by denying a special jury instruction request. Upon our review, we
have determined that the trial court erred by admitting the CAD Operational Report and that
the evidence was not sufficient to support the verdict. Appellant’s remaining arguments are
without merit. We will first address the CAD Operational Report and the sufficiency of the
evidence and then review the remaining arguments in the interest of facilitating any future
review of this case.

                        A. Admissibility of CAD Operational Report

        Appellant argues that the CAD Operational Report, introduced during Officer
Hollingsworth’s rebuttal testimony, was inadmissible under Tennessee Rule of Evidence
803(8) and was admitted without a proper foundation under Rule 803(6). The State responds
that Officer Hollingsworth was a qualified witness under Rule 803(6) and that even if a
proper foundation had not been laid, appellant failed to show prejudice from the admission
of the report. The State did not address appellant’s Rule 803(8) argument because it claims
that the trial court ruled on the issue under Rule 803(6).

        Initially, we note that the State is correct that the trial court ruled on the admissibility
of the CAD Operational Report based on Rule 803(6). Furthermore, at trial, appellant based
his objection on Rule 803(6), not Rule 803(8). Therefore, he has waived any argument based
on Rule 803(8). See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as
requiring relief be granted to a party responsible for an error or who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.”). We
have deemed his Rule 803(6) argument to be meritorious, however.

        Hearsay is defined as “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). Generally, hearsay is not admissible at trial unless it falls within an
exception to the exclusionary rule. Tenn. R. Evid. 802. We are aware of the disagreement
among panels of this court regarding the appropriate standard of review of the admissibility




                                               -10-
of hearsay evidence;2 however, for purposes of this case, the result is the same whether
reviewed for abuse of discretion or de novo.

       Tennessee Rule of Evidence 803(6), commonly called the business records exception,
provides that records meeting the requirements of the rule are not excluded by the hearsay
rule. Rule 803(6) provides:

        A memorandum, report, record, or data compilation, in any form, of acts,
        events, conditions, opinions, or diagnoses made at or near the time by or from
        information transmitted by a person with knowledge and a business duty to
        record or transmit if kept in the course of a regularly conducted business
        activity and if it was the regular practice of that business activity to make the
        memorandum, report, record or data compilation, all as shown by the
        testimony of the custodian or other qualified witness or by certification that
        complies with Rule 902(11) or a statute permitting certification, unless the
        source of information or the method or circumstances of preparation indicate
        lack of trustworthiness. The term “business” as used in this paragraph
        includes business, institution, profession, occupation, and calling of every
        kind, whether or not conducted for profit.

“The foregoing exception ‘rests on the premise that records regularly kept in the normal
course of business are inherently trustworthy and reliable.’” Arias v. Duro Standard
Products Co., 303 S.W.3d 256, 262 (Tenn. 2010) (quoting Alexander v. Inman, 903 S.W.2d
686, 700 (Tenn. Ct. App. 1995)).

       Appellant’s central argument is that Officer Hollingsworth was not a qualified witness
with regard to Rule 803(6), and we agree. While the term “qualified witness” should be
accorded a broad interpretation, “[t]o be considered qualified, a witness must be personally


        2
           See State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008) (in considering an issue involving hearsay,
holding that “questions concerning the admissibility of evidence rest within the sound discretion of the trial
court, and this Court will not interfere in the absence of abuse appearing on the face of the record”); Pylant
v. State, 263 S.W.3d 864, 871 n.26 (Tenn. 2008) (maintaining that the standard of review for hearsay issues
is abuse of discretion); Willie Perry, Jr. v. State, No. W2011-01818-CCA-R3-PC, 2012 WL 2849510, at *3
(Tenn. Crim. App. July 11, 2012), perm. app. denied (Tenn. 2012), (stating that standard of review for
admissibility of evidence is abuse of discretion). But see State v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim.
App. 2008) (stating that whether a statement is offered to prove the truth of the matter asserted is “necessarily
a question of law” and is not subject to review under abuse of discretion standard); State v. Schiefelbein, 230
S.W.3d 88, 128 (Tenn. Crim. App. 2007) (holding that appellate review of hearsay issues is de novo with
no presumption of correctness); Willie Perry, Jr., 2012 WL 2849510, at *7 (Bivins, J., concurring) (applying
de novo standard of review to hearsay issues).

                                                      -11-
familiar with the business’s record-keeping systems and must be able to explain the
record-keeping procedures.” Inman, 903 S.W.2d at 700. Officer Hollingsworth was
certainly not the record custodian for the Williamson County dispatch office. He was a patrol
officer who was only nominally familiar with dispatch procedure, as evidenced by his
testimony that the dispatcher “should be typing those notes in the computer as the radio
traffic is made relating to that call.” He was able to testify that the report “look[ed] like” the
report related to the alleged attempted aggravated burglary at the Ruttencutters’ apartment
and that the report was generated in the ordinary course of business. However, Officer
Hollingsworth’s testimony was not sufficient for this court to conclude that he was familiar
enough with the procedure of the dispatch office to be a qualified witness. Moreover,
Officer Hollingsworth’s testimony also indicated a lack of trustworthiness in the CAD
Operational Report because his own report indicated a different time for the incoming call.
Thus, we conclude that the CAD Operational Report was admitted in error.

        We must also conclude that the error was not harmless because the report, if correct,
changed the timeline of events that evening and rendered appellant’s alibi meaningless. With
so little evidence available in this case, the prejudicial effect of the report was not
inconsequential. Even if the evidence were otherwise sufficient to sustain appellant’s
conviction, this error would require reversal and remand for a new trial. See State v. Gomez,
367 S.W.3d 237, 249 (Tenn. 2012) (“Non-constitutional errors are harmful and demand
reversal when ‘considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice to the judicial
process.’”) (quoting Tenn. R. App. P. 36(b)).

                                     B. Sufficiency of the Evidence

        Appellant contends that the evidence was not sufficient to support his conviction for
attempted aggravated burglary.3 Specifically, he contends that there was no evidence that he
intended to commit a felony, theft, or assault or that the attempted entry was without the
effective consent of the property owner. The State responds that the jury could infer his
intent from his actions to attempt to enter the habitation.

      The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime


        3
          Appellant’s brief states that the verdict was contrary to the weight of the evidence and cites
Tennessee Rule of Criminal Procedure 33(d), commonly referred to as the “thirteenth juror rule.” However,
his argument is essentially that the evidence was insufficient to uphold the conviction, not that the trial court
improperly acted as the thirteenth juror.

                                                      -12-
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

        To support a conviction for attempted aggravated burglary, the State had to show
beyond a reasonable doubt that appellant attempted to commit the burglary of a habitation.
Tenn. Code Ann. § 39-14-403(a). “A person commits burglary who, without the effective
consent of the property owner . . . [e]nters a building . . . with intent to commit a felony, theft
or assault.” Id. § 39-14-402(a)(1). Burglary can be proven through direct or circumstantial
evidence. See State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). A person
commits criminal attempt, as charged in this case, when he or she “[a]cts with intent to
complete a course of action or cause a result that would constitute the offense, under the
circumstances surrounding the conduct as the person believes them to be, and the conduct
constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-
12-101(a)(3). The statute further clarifies that “[c]onduct does not constitute a substantial
step under subdivision (a)(3), unless the person’s entire course of action is corroborative of
the intent to commit the offense.” Id. § 39-12-101(b).

                                               -13-
        Viewed in the light most favorable to the State, the evidence at trial showed that
Tabitha Ruttencutter saw her door handle moving and heard scratching at the door around
9:50 p.m. The scratching sound like it was “inside the keyhole,” and the door handle was
“jiggling.” The movement stopped and restarted. She saw a shadow pass by the window
next to the door and then saw a man walk by who was wearing a blue, collared shirt and was
carrying a duffel bag. Approximately one-half hour later, appellant was found near the creek
adjacent to the apartment complex. The shirt appellant had been wearing was shown to Mrs.
Ruttencutter, and she said that it “looked like” the one worn by the person she saw walking
by her apartment. A duffel bag was found on the apartment property, and appellant claimed
that the bag was his. Detective Lindsey testified that he photographed the Ruttencutters’
door knob and observed fresh scratch marks on it. In summary, whoever was outside of the
Ruttencutters’ apartment wiggled the door knob, did something that caused a scratching noise
and left scratch marks, and then walked away. Based on this testimony, we cannot conclude
that a crime was committed. To be sufficient to sustain his conviction, appellant’s entire
course of action had to be corroborative of the intent to commit the aggravated burglary, and
there was not enough evidence in this case to show that the person outside the Ruttencutters’
apartment was intending to burglarize the apartment. Id.

       In other cases where convictions for attempted aggravated burglary have been upheld,
there was more evidence than the evidence presented here. In Reginald D. Terry, the victim
saw the defendant trying to get in through a window and then saw him hiding in front of the
house. State v. Reginald D. Terry, No. W2000-00090-CCA-R3-CD, 2001 WL 721029, at
*5 (Tenn. Crim. App. June 26, 2001). In Tommy Lee Clark, there were broken windows at
both victims’ houses, and the defendant was caught with his upper body through the window
at one house. State v. Tommy Lee Clark, No. W2007-01829-CCA-R3-CD, 2008 WL
3342992, at *6 (Tenn. Crim. App. Aug. 11, 2008). In Wesley M. Gifford, Jr., the defendant
attempted to enter the home, made comments about what he wanted to do to the victim, and
began masturbating. State v. Wesley M. Gifford, Jr., No. M2013-00253-CCA-R3-CD, 2014
WL 345345, at *7 (Tenn. Crim. App. Jan. 30, 2014). In Marty Mitchell Clark, a witness saw
the defendant trying to open a window. State v. Marty Mitchell Clark, No. W2005-01540-
CCA-R3-CD, 2006 WL 1215144, at *4 (Tenn. Crim. App. May 5, 2006). In Jimmy Bernard
Clark, the security sensors were activated, a door and a window were opened, and two
subjects were seen fleeing the area. State v. Jimmy Bernard Clark, No. W2005-02081-CCA-
R3-CD, 2006 WL 2668720, at *6 (Tenn. Crim. App. Sept. 18, 2006). In Albert Lamont
Bennett, Jr., the defendant threatened to kill the victim and then tried to get into the
apartment where the victim had locked herself inside. State v. Albert Lamont Bennett, Jr.,
No. M2012-01003-CCA-R3-CD, 2013 WL 4680408, at *6 (Tenn. Crim. App. Aug. 28,
2013), perm. app. denied (Tenn. Jan. 16, 2014). In Tony Dixon, the defendant tried to pry
open a window, and his accomplice testified about his intent. State v. Tony Dixon, No.



                                            -14-
E2011-00736-CCA-R3-CD, 2013 WL 2644029, at *6-7 (Tenn. Crim. App. June 11, 2013),
perm. app. denied (Tenn. Oct. 16, 2013).

        After reviewing these cases and comparing them to the evidence presented herein, we
conclude that the evidence was not sufficient to support appellant’s conviction for attempted
aggravated burglary. The person who was outside the apartment made only a cursory attempt
at gaining entry by scratching at the door handle and moving it some. We cannot say that this
cursory attempt represented an entire course of action that was corroborative of the intent to
commit an aggravated burglary or that it constituted a substantial step toward the completion
of an aggravated burglary, defined as the entering of a habitation, without the effective
consent of the owner and with the intent to commit a felony, theft, or assault. See Tenn.
Code Ann. §§ 39-14-402, -403. Therefore, we reverse the judgment of the trial court and
dismiss appellant’s charge.

                             C. Motion to Suppress Statements

        Appellant also argues that the trial court erred by not suppressing his statements to
police made immediately after his arrest. The State responds that the trial court properly
ruled that appellant’s statements were admissible because he was not subjected to custodial
interrogation without having been advised of his constitutional rights. We disagree with the
State regarding statements made by appellant to Officer Hollingsworth but conclude that the
error was harmless beyond a reasonable doubt. We agree with the State regarding statements
made to Officer Frazier.

        In reviewing the trial court’s decision on a motion to suppress, we review the trial
court’s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008). In
doing so, we give deference to the trial judge’s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “‘[C]redibility of the witnesses, the weight and
value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the
trial judge as the trier of fact.’” Northern, 262 S.W.3d at 747-48 (quoting Odom, 928 S.W.2d
at 23). In reviewing the findings of fact, evidence presented at trial may “‘be considered by
an appellate court in deciding the propriety of the trial court’s ruling on the motion to
suppress.’” State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003) (quoting State v. Walton, 41
S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the motion to suppress is afforded the
“‘strongest legitimate view of the evidence and all reasonable and legitimate inferences that
may be drawn from that evidence.’” Northern, 262 S.W.3d at 748 (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)); see State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000);
Odom, 928 S.W.2d at 23.



                                             -15-
        At the motion to suppress hearing, Officers Hollingsworth and Frazier and Detective
Lindsey testified consistently with their trial testimony. In summary, Officer Hollingsworth
first encountered appellant emerging from the woods, soaking wet. He handcuffed appellant
and asked him who he was and why he was at the apartments. Appellant then waited in
Officer Frazier’s vehicle and made several comments to Officer Frazier, which are detailed
above in the trial testimony. Officer Frazier told him to wait until a detective arrived. When
Detective Lindsey arrived, he read appellant’s constitutional rights to him. Appellant gave
a short statement at the scene and a formal statement at the police station.

       Due to “the inherently compelling pressures of in-custody interrogation,” the United
States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), “limited the admissibility
of statements that would ordinarily meet the due process test of voluntariness” by
establishing prophylactic rules designed “to permit a full opportunity to exercise the privilege
against self-incrimination.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992)). Any
statements, “whether exculpatory or inculpatory, stemming from custodial interrogation of
the defendant” must be excluded “unless [the prosecution] demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.” Miranda,
384 U.S. at 444. These procedural safeguards require an officer to advise an accused prior
to custodial interrogation or its functional equivalent

       that he has the right to remain silent, that anything he says can be used against
       him in a court of law, that he has the right to the presence of an attorney, and
       that if he cannot afford an attorney one will be appointed for him prior to any
       questioning if he so desires.

Id. at 479; see also Rhode Island v. Innis, 446 U.S. 291, 298 (1980); State v. Sawyer, 156
S.W.3d 531, 534 (Tenn. 2005).

        On appeal, appellant argues that Officer Hollingsworth subjected him to an unwarned
custodial interrogation or its functional equivalent. It is unquestioned that appellant was in
custody and that Officer Hollingsworth did not give Miranda warnings to appellant.
Therefore, the only issue that remains is whether Officer Hollingsworth’s words and actions
constituted an interrogation, its functional equivalent, or questioning that falls under an
exception to Miranda. The United States Supreme Court in Rhode Island v. Innis provided
the following guidance for lower courts:

       [T]he term “interrogation” under Miranda refers not only to express
       questioning, but also to any words or actions on the part of the police (other
       than those normally attendant to arrest and custody) that the police should
       know are reasonably likely to elicit an incriminating response from the suspect.

                                              -16-
        The latter portion of this definition focuses primarily upon the perceptions of
        the suspect, rather than the intent of the police. This focus reflects the fact that
        the Miranda safeguards were designed to vest a suspect in custody with an
        added measure of protection against coercive police practices, without regard
        to objective proof of the underlying intent of the police. A practice that the
        police should know is reasonably likely to evoke an incriminating response
        from a suspect thus amounts to interrogation. But, since the police surely
        cannot be held accountable for the unforeseeable results of their words or
        actions, the definition of interrogation can extend only to words or actions on
        the part of police officers that they should have known were reasonably likely
        to elicit an incriminating response.

Innis, 446 U.S. at 301-02 (emphasis added) (footnote call numbers omitted); see also Sawyer,
156 S.W.3d at 533.

       In this case, Officer Hollingsworth handcuffed appellant and then asked him who he
was and why he was at the apartment complex. Even if we could say that asking for
appellant’s identity amounted to words normally attendant to arrest, asking a suspect why he
was at a particular location when investigating an attempted aggravated burglary is a question
that a police officer should have known was reasonably likely to elicit an incriminating
response. Therefore, the questioning constituted custodial interrogation and should have
been preceeded by Miranda warnings. Because Miranda warnings were not given, the
statements should have been excluded from the State’s case-in-chief. See State v. Climer,
400 S.W.3d 537, 567 (Tenn. 2013) (noting that “exclusion of the statements elicited during
custodial interrogation ‘is a complete and sufficient remedy for any perceived Miranda
violation.’”) (quoting United States v. Patane, 542 U.S. 630, 641-42 (2004) (plurality
opinion)).

         Nevertheless, the error in this case is harmless beyond a reasonable doubt. “The
erroneous admission of evidence obtained in violation of a defendant’s Miranda rights is a
non-structural constitutional error . . . .” Id. at 569. Therefore, to avoid reversal, the State
has to show beyond a reasonable doubt that the error did not contribute to the verdict
obtained. Id. (citations omitted). Here, appellant gave similar statements to Detective
Lindsey after receiving the Miranda warnings and testified consistently with those statements
at trial.4 There was nothing particularly inculpatory in what he told Officer Hollingsworth.
Thus, while the statements should have been suppressed, we conclude that in light of the
evidence as a whole, the error did not contribute to the verdict obtained.


       4
           We note that appellant has not argued for the suppression of subsequent statements made after
receiving the Miranda warnings.

                                                 -17-
        Regarding appellant’s statements to Officer Frazier while seated in Officer Frazier’s
patrol car, the trial court properly ruled that these statements were spontaneous and not a
result of custodial interrogation. “Volunteered statements of any kind are not barred by the
Fifth Amendment[,] and their admissibility is not affected” by the holding of Miranda.
Miranda, 384 U.S. at 478.

                          D. Identification of Appellant’s Clothing

        Appellant contends that the on-scene and in-court identification of appellant’s clothing
(the long-sleeved shirt that he had removed prior to his arrest) by the Ruttencutters should
be held to the same standard as that of show-up identifications of suspects. The State
responds that appellant waived the argument when he did not object to the identification of
the shirt contemporaneously at trial. We agree with the State. See Tenn. R. App. P. 36(a)
(“Nothing in this rule shall be construed as requiring relief be granted to a party responsible
for an error or who failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of an error.”).

     E. Failure to Give Jury Instruction Regarding State’s Duty to Preserve Evidence

       Appellant argues that the trial court erred by not including an instruction to the jury
regarding the State’s duty to preserve evidence, premised on the police officers’ failure to
record the initial custodial interrogations of appellant. The State responds that the State did
not have a duty to record those conversations and that the trial court properly denied
appellant’s request for the instruction. We agree with the State.

       “A defendant has a constitutional right to a correct and complete charge of the law.”
State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995) (citing State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990)). “When the trial judge gives instructions that correctly, fully,
and fairly set forth the applicable law, it is not error to refuse to give a special requested
instruction.” Id. (citing State v. Bohanan, 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987)).
Questions regarding the propriety of jury instructions are mixed questions of law and fact;
thus, our standard of review is de novo with no presumption of correctness. State v. Rush,
50 S.W.3d 424, 427 (Tenn. 2001); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

       Here, appellant requested that the trial court instruct the jury regarding the State’s duty
to preserve evidence because “police officers that arrived on the scene failed to preserve
audiotaped recordings of their interviews” of appellant. Testimony at trial suggested that the
police department’s policy was to record custodial interrogations, but “neither the state nor
the federal constitution requires electronic recording of interrogations.” State v. Godsey, 60
S.W.3d 759, 771 (Tenn. 2001). Thus, the State did not have a duty to record the interactions

                                              -18-
and could not have failed to preserve evidence that it did not record. Therefore, we conclude
that the trial court did not err by denying the special jury instruction request.

                                     CONCLUSION

       Based on our review of the record, the arguments of the parties, and the applicable
law, we conclude that the evidence was not sufficient to sustain appellant’s conviction and
therefore reverse the judgment of the trial court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




                                            -19-
