        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  January 18, 2012 Session

           STATE OF TENNESSEE v. JEFFREY WADE OSBORNE

                 Appeal from the Circuit Court for Williamson County
                    No. II-CR124617      Timothy L. Easter, Judge


                   No. M2010-02281-CCA-R3-CD - Filed May 9, 2012


The defendant, Jeffrey Wade Osborne, appeals his Williamson County Circuit Court bench
trial conviction of felony failure to appear, see T.C.A. § 39-16-609, arguing that his trial
should not have occurred while competency proceedings were still pending and that the trial
court erroneously denied a motion for judgment of acquittal made at the close of the State’s
proof. Discerning no error, we affirm the judgment of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN, J., joined. JERRY L. S MITH, J., not participating.

William P. Holloway (on appeal); and Sandra Wells (at trial), Franklin, Tennessee, for the
appellant, Jeffrey Wade Osborne.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Laura Kate Yaeger, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

              On December 7, 2009, a Williamson County grand jury charged the defendant
with one count of felony failure to appear stemming from the defendant’s failure to attend
an August 12, 2009 hearing in general sessions court. On September 23, 2010, the defendant
waived his right to a jury trial, pleaded not guilty to the charge, and submitted to a bench trial
before the Williamson County Circuit Court.

              Linda Kincaid, Deputy Clerk of the Williamson County General Sessions
Clerk’s Office, testified that court dockets showed that the defendant attended a July 9, 2009
initial appearance in general sessions court where the court advised the defendant of his next
court date, August 12, 2009. Ms. Kincaid testified that the docket entries from August 12,
2009, reflected that the defendant failed to appear on that date. Accordingly, a clerk
forwarded the defendant’s file to the general sessions court judge, who in turn issued a
“failure to appear” capias for the defendant’s arrest. Ms. Kincaid testified that, although she
was not the actual clerk who worked in the courtroom on July 9, the regularly maintained
docket record showed that the defendant had appeared in court and, through normal
courtroom procedures, was advised of his next court date setting.

                James Stafford, a judicial assistant for the Williamson County General Sessions
Court, testified that he was responsible for “calling the docket” on August 12, 2009. He said
that each name on the docket is announced at least two times in case a defendant appears
after the first announcement. He recalled that the defendant did not respond to the “docket
call” on August 12. Thus, he signed an affidavit in support of an arrest warrant charging the
defendant with failure to appear attesting to the defendant’s absence. Mr. Stafford agreed
that a defendant may sometimes be told the wrong court date, but he added that such
mistakes did not happen often.

               With this proof, the State rested its case. The defendant then moved the trial
court to enter a judgment of acquittal. See Tenn. R.Crim. P. 29. Following the trial court’s
denial of the motion for judgment of acquittal. The defendant testified.

               In his testimony, the defendant admitted that he appeared for court on his first
date, July 9, but that he “didn’t make the second one.” The defendant explained that he “was
waiting on a[n inheritance] check” so that he could leave money with his wife to provide for
his family’s needs while in jail. He admitted, “I knew it wasn’t okay [to miss court] . . . , but
I didn’t realize it was going to turn into all of this.” On cross-examination, the defendant
admitted his familiarity with the criminal justice system and that he served 20 years in prison
before being released in October 2007. The defendant said that he had been arrested five
times since his release. The defendant also acknowledged that he ultimately received the
inheritance check while in jail after he was “brought in” by the United States Marshal Service
for the failure to appear charge in this case and other charges.1 The defendant took full
responsibility for not appearing in court on August 12, but he told the trial court, “I was
waiting on a check and I was going to turn myself in.”

               The defendant did not renew his motion for judgment of acquittal at the close
of the proof. Further, the parties presented no argument concerning the case. The trial court


       1
            From the defendant’s testimony, we determine that the defendant ultimately garnered multiple
failure to appear charges in addition to the one pertinent to this appeal.

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found that the defendant’s waiting on a check was not a “reasonable excuse” for failing to
appear and convicted the defendant as charged. See T.C.A. § 39-16-609(b)(2) (“It is a
defense to prosecution [for failure to appear] that . . . [t]he person had a reasonable excuse
for failure to appear at the specified time and place.”).

              On appeal, the defendant argues that the trial court erred by conducting a trial
during the pendency of competency proceedings ordered by the general sessions court and
by denying his motion for judgment of acquittal made at the close of the State’s proof. The
State contends that the defendant has waived each of these issues. We will address the
parties’ arguments in turn.

                                          Competency

              The defendant contends that the trial court should not have conducted his trial
given the unresolved competency evaluation that had been ordered by the general sessions
court. The State argues that the defendant waived this issue by failing to present it to the trial
court and that the record contains no evidence concerning any pending competency
evaluation.

               Following the filing of the State’s brief, the defendant filed a motion to
supplement the record on appeal with pleadings and reports from the general sessions court
indicating that a competency evaluation was performed at the general sessions court level,
that an expert determined the defendant to be competent concerning other charges, but that
the expert did not make a determination concerning the failure to appear charge in this case
because he did not know the mens rea of the offense. We note that the trial court record
contains no pleadings concerning the competency evaluation performed at the general
sessions court level and that these supplemented materials were not made known to the trial
court during the pendency of the matter in the circuit court. As such, we question the
propriety of their inclusion in the record on appeal. See State v. Rogers, 188 S.W.3d 593,
610-11 (Tenn. 2006) (matters not considered by the trial court are not “‘properly includable’”
in the appellate court record). Also, the record reflects that the defendant did not raise the
issue before the trial court at any time prior to submitting to the bench trial on the failure to
appear charge. This failure resulted in a waiver of the issue before the trial court. State v.
Estes, 655 S.W.2d 179, 182 (Tenn. Crim. App. 1983) (“Counsel’s failure to insure that the
matter of competency was settled before trial amounted to a waiver of that issue.”); see also
State v. Michael Ortiz, W2005-00474-CCA-R3-CD (Tenn. Crim. App., Jackson, Feb. 8,
2006); see also 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.”).



                                               -3-
                        Denial of Motion for Judgment of Acquittal

             Next, the defendant contends that the trial court erred by denying his motion
for judgment of acquittal made at the close of the State’s proof. The State argues that the
defendant waived this issue by presenting proof and that the evidence is sufficient to support
the defendant’s conviction for felony failure to appear.

                The defendant made only one motion for judgment of acquittal – at the close
of the State’s proof. He then testified and did not renew his motion for judgment of acquittal
at the close of his proof or, as previously discussed, in a motion for new trial. Rule 29 of the
Tennessee Rules of Criminal Procedure provides, in relevant part, as follows:

              The court on motion of a defendant or of its own motion shall
              order the entry of judgment of acquittal of one or more offenses
              charged in the indictment or information after the evidence on
              either side is closed if the evidence is insufficient to sustain a
              conviction of such offense or offenses.

Tenn. R.Crim. P. 29(a).

              This rule empowers the trial judge to direct a judgment of acquittal when the
evidence is insufficient to warrant a conviction either at the time the State rests or at the
conclusion of all the evidence. See generally Overturf v. State, 571 S.W.2d 837 (Tenn.
1978). At the point the motion is made, the trial court must favor the opponent of the motion
with the strongest legitimate view of the evidence, including all reasonable inferences, and
discard any countervailing evidence. Hill v. State, 470 S.W.2d 853, 858 (Tenn. Crim. App.
1971).

                The State correctly notes that the defendant chose to offer proof following the
trial court’s denial of this motion for judgment of acquittal at the close of the State’s proof.
As such, he has waived his right to appeal the denial of this motion. See Finch v. State, 226
S.W.3d 307, 317 (Tenn. 2007) (declining to revisit the waiver rule promulgated in State v.
Mathis, 590 S.W.2d 449, 453 (Tenn. 1979)); see also State v. Johnson, 762 S.W.2d 110, 121
(Tenn. 1988); State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). Because the
standard by which the trial court determines a motion for judgment of acquittal is, in essence,
the same standard which applies on appeal in determining the sufficiency of the evidence
after a conviction, State v. Anderson, 880 S.W.2d 720, 726 (Tenn. Crim. App. 1994), and
would result in a dismissal of the conviction if ruled insufficient, we consider the sufficiency
of the evidence to support the defendant’s conviction in spite of the defendant’s waiver of
his claim surrounding the motion for judgment of acquittal.

                                              -4-
                We review a claim of insufficient evidence mindful that our standard of review
is whether, after considering the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings
of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id..
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.

              Tennessee Code Annotated section 39-16-609 provides, in pertinent part:

              It is unlawful for any person to knowingly fail to appear as
              directed by a lawful authority if the person:
              ....
              (4) Has been lawfully released from custody, with or without
              bail, on condition of subsequent appearance at an official
              proceeding or penal institution at a specified time or place.

T.C.A. § 39-16-609(a)(4). “It is a defense to prosecution . . . that . . . [t]he person had a
reasonable excuse for failure to appear at the specified time and place.” Id. at § 39-16-
609(b)(2).

                Because the defendant claims on appeal that the trial court erred by denying
the motion for judgment of acquittal made at the close of the State’s proof, his argument on
appeal fails to acknowledge his very own admissions concerning the offense. The procedural
posture of the case, as previously discussed, does not limit this court to a review of the
State’s evidence only. At trial, the defendant candidly admitted that he knew his court date
and chose not to appear, opting instead to wait on an inheritance check to arrive in the mail.
The trial court found that the defendant’s excuse for not appearing was not reasonable.
General sessions court personnel testified concerning the normal court procedures and docket
entries. The defendant’s testimony affirmed the court personnel’s testimony and provided
no reasonable excuse for his failure to appear. Accordingly, we conclude that the evidence
sufficiently established the defendant’s conviction.

                                              -5-
                                         Conclusion

               The defendant waived any issue concerning competency by failing to present
the issue to the trial court. The defendant also waived any issue concerning the trial court’s
denial of his motion for judgment of acquittal made at the close of the State’s proof.
Furthermore, sufficient evidence exists to support the defendant’s conviction. Accordingly,
we affirm the judgment of the trial court.

                                           _________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE




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