IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 14, 2011 Session

STATE OF TENNESSEE v. TIMOTHY BRYANT BURTON

Appeal from the Circuit Court for Bedford County

No. 16988 Lee Russell, Judge

No. M2010-02177-CCA-R3-CD - filed December 7, 2011

Appellant, Timothy Bryant Burton, appeals his Bedford County conviction for violation of

the sex offender registry and the State’s use of his prior convictions to establish his status as

a violent sex offender. After a review of the record, we conclude that Appellant failed to

timely register with a law enforcement agency within forty-eight hours of his change of

residence in violation of Tennessee Code Annotated section 40-39-203 or, in other words,

that the evidence was sufficient to support the conviction. Additionally, Appellant waived

any issue with regard to the admission of evidence by failing to object at trial or raise the

issue in a motion for new trial and is not entitled to plain error review. As a result, the

judgment of the trial court is affirmed.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.

and NORMA MCGEE OGLE, JJ., joined.

James O. Martin, III, Nashville, Tennessee, and Andrew Jackson Dearing, Assistant Public

Defender, Shelbyville, Tennessee, for the appellant, Timothy Bryant Burton.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Charles Crawford, District Attorney General, and Michael D. Randles, Assistant

District Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

In April of 2010, Appellant was indicted by the Bedford County Grand Jury for failure

to timely register with a law enforcement agency within forty-eight hours of his change of

residence in violation of Tennessee Code Annotated section 40-39-203.

At the time of the incident herein, Captain Rebecca Hord was in charge of the Sex

Offender Registry for the Bedford County Sheriff’s Department. Her job was to monitor the

registered sex offenders in Bedford County by making home visits, updating records,

explaining reporting requirements to offenders, etc. She explained that registered sex

offenders are required to report “[a]ny changes in their circumstances, . . . within 48 hours.”

According to Captain Hord, Appellant was required to come in “four times a year” because

of his convictions that classified him as a “violent offender.”

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Appellant came in on April 1, 2009, to give a required update on his location. When

Appellant reported his residence, he reported that he lived at 121 Nutmeg. Captain Hord

called Appellant into the office again on June 3, 2009, because “another department had been

watching [Appellant’s] address” for a few weeks at varying times and there was no response.

Captain Hord had been to the residence herself “[p]robably about 10 days,” trying to locate

Appellant. Appellant’s vehicle was also not at the house. Before Appellant came in to

report, Captain Hord got a phone call informing her that Appellant was staying with Larissa

Voytko. Captain Hord found Appellant’s vehicle, a “big old white Bronco,” at Ms. Voytko’s

residence on North Main. Additionally, some of Appellant’s clothing were at the residence.

Ms. Voytko’s younger sister and friend were at the home at the time and had spent the night

there the night before Captain Hord came to the residence. Appellant was at work. When

Captain Hord finally got in touch with Appellant he came to the Sheriff’s office.

Appellant signed a waiver of rights and talked to Captain Hord. Appellant admitted

that he failed to report his change of address. Appellant informed Captain Hord that his

vehicle was broken down on North Main and that he worked most nights in Murfreesboro.

Appellant was charged on June 3 for failure to report. He was released from custody the next

day and updated his address to 388 Pinkston Road, his mother’s address. Appellant did not

report a secondary address and did not tell Captain Hord where he had been staying.

Appellant had one conviction for attempted aggravated sexual battery of a ten-year-old child and five

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convictions for statutory rape of a thirteen-year-old child.

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Appellant came back on June 9, 2009, to report to the Sheriff’s office. At that time

he changed his address to 174 Hurricane Grove Road.

Shirley Brandon testified for Appellant. Mrs. Brandon was employed by Caregiver

Services and lived at 121 Nutmeg with her husband. Appellant rented a room from the

Brandons for almost a year. According to Mrs. Brandon, Appellant worked nights in

Murfreesboro and would leave around 9:00 p.m. every night and was usually home around

7:00 a.m. Appellant was going to move out the first of June but had paid rent up until June

14, 2009. Mr. and Mrs. Brandon’s daughter was going to move into the house.

Mrs. Brandon recalled that Appellant’s white “four-by-four” broke down around the

first or second of June. It had a blown head gasket.

Kimberly Voytko Vaughn testified that she was in a relationship with Appellant

around the time of the incident. The two saw each other frequently during that time.

Appellant lived at 121 Nutmeg at the time. Appellant’s white Chevrolet Blazer broke down

at Ms. Voytko’s daughter’s apartment around the end of May. She could not remember the

exact date that the vehicle broke down.

Ms. Voytko insisted that Appellant did not move out of the residence on Nutmeg until

June 14, 2009. She admitted that Appellant was storing some of his personal items at her

daughter’s apartment but claimed that he was storing them there because they happened to

be in his truck when it broke down during his move to his mother’s house. The items were

moved into the apartment for safekeeping.

Courtney Fears is the daughter of Ms. Voytko. At the time of the trial she was fifteen

years old. She testified that she and a friend stayed the night with her sister, Larissa Voytko

in May or June of 2009. Appellant did not stay at the apartment that night even though some

of his belongings were at the apartment. Ms. Fears recalled that Appellant’s truck had

broken down and was parked kind of close to the road. When the police came to look for

Appellant, Ms. Fears denied telling them that Appellant was not living at the apartment.

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Judy Burton Hooker, Appellant’s mother, testified at trial. According to Mrs. Hooker,

Appellant lived on Nutmeg Drive with the Brandons. She claimed that she picked Appellant

up and took him to work around 9:00 p.m. and that he worked until 6:00 a.m. the next

morning. Mrs. Hooker did this for Appellant a few times. Mrs. Hooker recalled that the

“motor” of Appellant’s vehicle blew up around the first or third of June.

The State called Captain Hord as a rebuttal witness. Captain Hord testified that Ms. Fears told her that

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Appellant was staying at the apartment. Ms. Fears showed Captain Hord the room, boots, clothes, and a bed.

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At the conclusion of the proof, Appellant was convicted of the offense as charged in

the indictment. After a sentencing hearing, Appellant was sentenced to four years in

incarceration. Appellant filed a motion for new trial. The trial court denied the motion, and

Appellant filed a timely notice of appeal. On appeal, Appellant challenges the sufficiency

of the evidence as well as the trial court’s decision to allow the State to introduce evidence

of Appellant’s prior convictions.

Analysis

Appellant argues on appeal that the trial court erred by allowing the State to introduce

specific evidence of Appellant’s prior convictions in violation of due process and the rules

of evidence. Appellant cites State v. James, 81 S.W.3d 751 (Tenn. 2002) and State v. Robert

J. Wrigglesworth, Jr., No. M2005-01841-CCA-R9-CO, 2006 WL 2069430 (Tenn. Crim.

App., at Nashville, Jul. 26, 2006), to support his argument. Specifically, Appellant contends

that because trial counsel did not make an offer to stipulate to Appellant’s prior sex offenses

that it was plain error for the trial court to allow the State to introduce the judgments of

Appellant’s convictions for aggravated sexual battery and statutory rape. The State, on the

other hand, argues that Appellant is not entitled to plain error review.

“[T]rial courts have broad discretion in determining the admissibility of evidence, and

their rulings will not be reversed absent an abuse of that discretion.” State v. McLeod, 937

S.W.2d 867, 871 (Tenn. 1996). Moreover, the Tennessee Rules of Evidence embody, and

our courts traditionally have acknowledged, “a policy of liberality in the admission of

evidence in both civil and criminal cases . . . .” State v. Banks, 564 S.W.2d 947, 949 (Tenn.

1978); see also State v. Robinson, 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995). To be

admissible, evidence mustsatisfy the threshold determination of relevancy mandated by Rule

401 of the Tennessee Rules of Evidence. See, e.g., Banks, 564 S.W.2d at 949. Rule 401

defines “relevant evidence” as being “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. However, relevant

“evidence may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice . . . .” Tenn. R. Evid. 403; see also Banks, 564 S.W.2d at 951. A trial

court abuses its discretion in regards to the admissibility of evidence only when it “applie[s]

an incorrect legal standard, or reach[es] a decision which is against logic or reasoning that

cause[s] an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn.

1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

The general rule is that evidence of a defendant’s prior conduct is inadmissible,

especially when previous crimes or acts are of the same character as the charged offense,

because such evidence is irrelevant and “invites the finder of fact to infer guilt from

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propensity.” State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). Tennessee

Rule of Evidence 404(b) permits the admission of evidence of prior conduct if the evidence

of other acts is relevant to a litigated issue such as identity, intent, or rebuttal of accident or

mistake, and the probative value outweighs the danger of unfair prejudice. Tenn. R. Evid.

404(b), Advisory Comm’n Cmts.; See State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985);

State v. Hooten, 735 S.W.2d 823, 824 (Tenn. Crim. App. 1987). However, “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity with the character trait.” Tenn. R. Evid. 404(b). Before admitting

evidence under Rule 404(b), the rule provides that (1) upon request, the court must hold a

hearing outside the jury’s presence; (2) the court must determine that the evidence is

probative on a material issue and must, if requested, state on the record the material issue and

the reasons for admitting or excluding the evidence; (3) the court must find proof of the other

crime, wrong, or act to be clear and convincing; and (4) the court must exclude the evidence

if the danger of unfair prejudice outweighs its probative value. Tenn. R. Evid. 404(b).

In the case herein, Appellant argues that the trial court committed reversible error in

allowing the jury to hear evidence of his prior felony conviction. He asserts that under State

v. James, 81 S.W.3d 751 (Tenn. 2002), the probative value of his prior convictions was, as

a matter of law, outweighed by the danger of unfair prejudice. He alleges that such error was

not harmless because the State used proof of his specific prior felony convictions rather than

just using proof that Appellant was a “convicted sex offender.” The State responds that the

trial court did not abuse its discretion in allowing the State to introduce evidence of the

Appellant’s prior convictions; that Appellant failed to object to the introduction of the

evidence at trial; and that Appellant is not entitled to plain error review.

In James, the defendant was charged with felony escape, an element of which was that

he was incarcerated for a felony at the time of his escape. At trial, the defendant offered to

stipulate that he had been incarcerated for a felony at the time of the escape in order to

prevent the jury from learning of the specific felonies of which he had been convicted. The

State did not agree to this stipulation and, at the trial, presented testimony which identified

each of the defendant’s felony convictions. Our supreme court concluded that, because of

the defendant’s offered stipulation that he was incarcerated for a felony at the time of his

escape, the State could not present proof as to his specific felony convictions:

[W]e hold that when the sole purpose of introducing evidence of a defendant’s

prior convictions is to prove the status element of the offense, and when the

defendant offers to stipulate his status as a felon, the probative value of the

evidence is, as a matter of law, outweighed by the risk of unfair prejudice.

Therefore, in this limited instance, the trial court should have accepted the

defendant’s stipulation in lieu of disclosing the names or nature of his previous

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convictions, as the latter evidence had little probative value and was likely to

provoke the jury’s prejudice.

James, 81 S.W.3d at 762 (footnote omitted).

As noted by Appellant, a panel of this court distinguished James in a similar issue in

State v. Robert J. Wrigglesworth, Jr., No. M2005-01841-CCA-R9-CO, 2006 WL 2069430

(Tenn. Crim. App., at Nashville, Jul. 26, 2006). In Robert J. Wrigglesworth, the defendant

was indicted for establishing a residence where a minor child also resided when he was “a

violent sexual offender or sexual offender as defined by Tennessee Code Annotated section

40-39-202.” Id. at *1. The defendant offered to stipulate that he had previously been

convicted of a sex offense, and the trial court held that the State must accept his offer to

stipulate and the fact of the defendant’s prior conviction would be removed from the jury’s

consideration. Id. at *1-2. The court said that the jury would not be instructed why the

defendant was not allowed to reside with a minor. Id. at *1. On appeal in that case, the

defendant argued, relying on James, that the probative value of the evidence was outweighed

by the risk of unfair prejudice when he offered to stipulate to the status element of the

offense. Id. at *2. The State argued that it was effectively barred from carrying its burden

of proving every element of the charged offense. Id. at *2. This court concluded:

In prosecuting James for felony escape, the State was required to prove that,

at the time of his alleged escape, he was incarcerated for a felony. His offer

to stipulate to this fact meant that the State did not have to present proof as to

this element of the offense and had the practical effect of the jurors’ not

hearing proof as to the specific felonies of which he had been convicted.

However, by the stipulation, James did not prevent the jurors from learning of

his being incarcerated for a felony at the time of the alleged escape, for this

status was an element of the offense. In the present appeal, the State was

required to prove that the defendant was convicted not just of a felony, as had

been the case in James, but that he had been convicted of a violent sexual

offense or sexual offense, as defined by Tennessee Code Annotated section

40-39-202. The trial court erred in concluding that, by his stipulation, the

defendant could remove this element of the indictment from the jury’s

consideration and, thus, prevent it from learning of the conviction or even of

the stipulation itself. Since the defendant’s status as a convicted sex offender

is an element of the offense with which he is charged, the jury should be told

of his specific stipulation and the State then would not be allowed to present

proof of the offense for which he had been convicted.

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Id. at *4. Following this reasoning, a defendant can offer to stipulate to the elements of an

offense, but by doing so cannot prevent the jury from learning of an element of the offense

or the stipulation. In other words, when evidence of a defendant’s prior conviction is

necessary to prove the status element of an offense, as in the case sub judice, the defendant

may offer to stipulate his status as a felon. James, 81 S.W.3d at 762. If the defendant does

so stipulate, disclosure of the names or nature of the prior convictions has “little probative

value and [is] likely to provoke the jury’s prejudice.” Id. In the absence of a stipulation,

however, the “probative value of an essential element of the offense would almost always

outweigh any potential prejudice under Rule 404(b) [of the Tennessee Rules of Evidence],

[and therefore the] specific nature of the offense w[ould] be admissible.” State v. Wingard,

891 S.W.2d 628, 634 (Tenn. Crim. App. 1994) (overruled on other grounds James, 81

S.W.3d at 763 n.7).

Appellant herein did not make an offer to stipulate to his status. Further, he failed to

object to the admission of certified copies of the judgments at trial. See Tenn. R. App. P. 36

(a). Appellant also waived this issue by failing to raise it in a motion for new trial. See Tenn.

R. App. P. 3(e). On appeal, Appellant fails to point out this Court’s decision in State v.

Wingard, 891 S.W.2d 628 (Tenn. Crim. App. 1994), which is seemingly apposite to his

position but rather urges this Court to review the issue for plain error as allowed in Tennessee

Rule of Appellate Procedure 36(b). We decline to do so. Appellant has failed to show that

a clear and unequivocal rule of law has been breached. See State v. Smith, 24 S.W.3d 274,

283 (Tenn. 2000) (outlining factors for plain error review). From the Wingard opinion, it

seems clear that absent a stipulation from Appellant, the probative value of Appellant’s prior

sex offender convictions outweigh the prejudicial effect due to the fact that the convictions

form an “essential element” of the offense. Appellant is not entitled to relief on this issue.

Sufficiency of the Evidence

Appellant claims that the evidence was insufficient to support the conviction.

Specifically, he argues that the State did not prove that he moved from the address that was

registered and did not prove that forty-eight hours passed prior to Appellant’s reporting a

change in his address. Appellant insists that the evidence was purely circumstantial and that

the only witness for the State never saw Appellant “living anywhere other than where he was

registered.” Further, there was no proof of “when the [alleged] move took place.” The State,

on the other hand, contends that the evidence was sufficient.

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

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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). Thus, although the

accused is originally cloaked with a presumption of innocence, the jury verdict of guilty

removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

demonstrate the insufficiency of the convicting evidence. Id. 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. See 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.” See Tuggle, 639 S.W.2d at 914. As such, this Court is

precluded from re-weighing or reconsidering the evidence when evaluating the convicting

proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own

“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,

805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

weight and value to be given to evidence, as well as all factual issues raised by such

evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether the conviction

is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379

(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

Appellant was indicted with a violation of the sex offender registry. Tennessee Code

Annotated section 40-39-203(a)(1) provides that, “[w]ithin forty-eight (48) hours of

establishing or changing a primary or secondary residence, . . . , the offender shall register

or report in person, as required by this part.”

The proof at trial indicated that Captain Hord visited Appellant’s registered residence

about ten times over a two week period prior to calling Appellant into the office to meet with

her about the registry. Captain Hord was able to testify that Appellant’s “unique” vehicle

was not at the residence during any of her visits. Further, the residence was under

surveillance by another department. When Appellant’s vehicle was eventually located near

the apartment of Ms. Voytko, Courtney Fears informed Captain Hord that Appellant’s things

were in a spare bedroom. The contents of the room indicated that Appellant was staying at

the apartment. When Appellant was questioned by Captain Hord, he admitted his failure to

report. Appellant presented conflicting testimony, attempting to establish that he was still

living at 121 Nutmeg Drive. The jury heard the evidence and, from their verdict, accredited

the testimony of the State’s witnesses. This Court cannot re-weigh or re-evaluate the

evidence. Morgan, 929 S.W.2d at 383; Matthews, 805 S.W.2d at 779. Moreover, questions

concerning the credibility of the witnesses and the weight and value to be given to evidence,

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as well as all factual issues raised by such evidence, are resolved by the trier of fact. Pruett,

788 S.W.2d at 561. The evidence was sufficient to support the conviction. Appellant is not

entitled to relief.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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