### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 2000 Session STATE OF TENNESSEE v. JOY A. ST INSON Direct Appeal from the Criminal Court for Anderson County No. 97CR0261 James B. Scott, Jr., Judge

No. E1999-02082-CCA-R3-CD September 29, 2000
The defendant was convicted of o ne count of theft of property over $1,000 for her unauthorized charge of items at a retail store to her former employer’s acc

ount. The trial cou

rt sentenced her

to four years imprisonment, with three years suspended. On appeal, the defendant presents the issues of whether the tria

l court erred in a

llowing the State

to introduce the testimony of an alibi rebuttal witness w hom the St ate did not identify as a witness prior

to trial, and in allo

wing the State to present evidence which she alleges tied her to an uncharged crime. Based upon our r evi ew, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which T HOMAS T. W O ODALL and J OHN E VERETT W ILLIAM S , JJ., joined. Mart S. Cizek, Clinton, Tennessee, for the appellant, Joy A. Stinson. Paul G. Summers, A ttorney G eneral and Repor ter; Mark A. Fulks,

Assistant Attorney

General; James N. Ramsey, Distric t Attorney Gener

al; and Elizabeth

J. Boatner, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant was convicted of one co unt of theft of property valued over $1,000 and sentenced to four years, with all but one year suspended. Following the trial court’s denial of her motion for a new trial, the defendant filed a timely appeal. The defendant presents two issues on appeal, which she

states as follows:
I. Whether

the court erred in allowing the State to introduce the testimony of a reb uttal witness whose identity was not revealed to the d

efense in complia

nce with discover

y rules.-2- II. Whether

the trial court erred in allowing into evidence an uncharged

crime that was unfai rly prejudicial to the defendant. Based upon our re

view, we affirm

the judgment of the

trial court. FACTS
On September 2, 1997, the defendant, Joy A. Stinson, was charged with one count of theft of property valued over $1,000. The indictment alleged that the defendant, who had been terminated on April 1, 1996, from her position as housing manager at Ridgeview Psychiatric Hospital in Oak Ridge, Tennessee, had charged items at K-Mart to the hospital’s account from December 30, 1996 to January 4, 1997. Trial was held on October 6, 1998. Jean Lantrip, facility manager at Ridgeview, testified that the defenda

nt had been employ

ed by the hospital a

s a house manager

from August 1994 unt

il April1, 1996. During her tenureas hospital employee, Lantrip said, the defendant made purchases forthe hospital at the Oak Ridge K-Mart, where the hospital had a thirty-day revolving credi t account. Lantrip testified that the defendant, as an employee with purchasing authority, would have had access to the hospital’s state sales tax exemption number. Lantrip further testifie

d that the receip

t K-Mart util

ized fo r purchases by no n-profit organizations contained spaces for the name and address of the organization pur

chasing the items, and for the purchasing employee’s signature. K-Mart required that the purchasing employee provide the organization’s n

ame and address , and sign the rec eipt. During the period in question, however, according to Lantrip, “K-Mart did n ot r equire or even ask or accept the original copy” of the hospital’s purchase order, which would have shown that the employee’s purc hase had been authorized and approved by the hospital. Lantrip testified that on th

ree different

days i n Decemb er 1996 and January 1997 unauthorized

purchases had been made at K-Mart on the hosp

ital’s account.

The receipts from the transactions had all b een signed “ Janet Watson.” Lantrip said that $759.98 worth of electronics equipment

was charged on D

ecember 30, 1996, a $465 television s et was ch arged on January 1, 1997, and a $227.93 videocassette recorder was charged on January 4, 1997. Lantrip stated that the hospital did not h ave an employee named Janet Wats

on, and that it had n

either authoriz

ed these purchases, nor r

eceived any of t

hese items. Conseq

uently, the hospita

l had not paid the ch

arges. Cindy Ann Coff

man, K-Mart cashier from November 1996 until June 1997, testified that on January 4, 1997, a woman charging items to the hospital had passed through her checkout line. Coffman said that the woman had filled in the lines on the store’s receipt with the n ame and address of the hospital, an

d had signed the re

ceipt with the name “Janet Watson.” Coffman had not asked for any identification. She had, however, a sked for the hospital’s tax exempt number, which the woman had provided. Coffman identified the defendant as the woman who had charged items to the hospital.-3-

Coffman said that she had known on January 4, 1997, that the defendant was not authorized to purchase items for the hospital. She had been told by store security, however, to notif y them if the defendant came into the store, and to let them handle t he situatio n. She notified security on January 4 , but the defenda nt was able to leav

e the store with the

items. Coffman saw the defendant in the store again on Februa ry 5, 1997. On that day, the defendant was originally in Coffman’s checkout line, but then moved to a line staffed by “Rosie,” who was working the checkout line next to Coffman. Coffma

n said that she hea

rd the defendan

t ask Rosieif she needed a tax exempt number, and that the defendant then left the checkout line and the store and did not come back. Coffman testified that she watched the defendant

for the approxima

tely five minutes that she wa

s in the checkout li

nes. Coffman stated that she later picked the defendant’s photograph out of six photographs shown to her by Detective Bill White. She was positive that the defendant was the woman who signed the January 4, 1997, receipt with the n ame “Janet

Watson.” The prosecution sought to introduce the testimony of Abby Roseanna (“Rosie”) Silva, the K-Mart cashier who hand

led the February

5, 1997, transact

ion with the defen

dant. The defens

e raiseda TennesseeRule of Evidence 403 objection to this testimony, arguing that its probative value was outweighed by the danger that it would cause unfair prejudice to the defendant. The trial court overruled the objection, inst

ructing the jury th

at the testimony wa

s to be considered for

identification purposes only. Silva testi fied that on February 5, 1997, the defendant moved to her checkout line from Coffman’s line. Silva said that the defendant handed Silva her drive r’s li cense for identification. The name on the license was that of thedefendant, Stinson. Silva positively identified the defendant as the woman who passed through her line that day. She said that she had, without any difficulty, picked the defendant out of a group of photographs later shown to her by Detective White.
Over the objection of the defense, the trial court allow ed the prosecution to present, for identification purposes only, the testimony of Joann Gaylor, resource coordinator of purchasing at Ridgeview, who testified that she knew the defe

ndant, and that she

saw her in

the K-Mart store on February 5, 1997. Oak Ridge Police Detective William T. White testified that he investigated the thefts after K-Mart’s loss prevention ma nager reported

it to the police on February 5, 1997. White said that he interviewed

Coffman on April 1, 1997, and that at that time she had, without hesitation, picked the defendant’s photograp h out of a group of photographs that he showed her. White stated that Coffman positively identified the defendant as the woman who charged the items to the hospital’s account. In a separate interview, Silva positively identified the defendant by choosing her photograph out of the same group of six photographs that he had shown Coffman. The defendant pres

ented alibi testimo

ny in an attempt to

prove that she ha

d not been at KMart on January 1, 1997. The defendant’s mother, Joann Smith, testified that she talked by telephone with the defendan t several times during the afternoon of January 1, 1997. Smith said that her daughte r had bee n at her mother-in-law’s house when Smith called her that afternoon. The-4-

defendant’s husband testified that, although he could not be sure, he believed that the defendant had been with him at his

mother’s house on January 1, 1997. The defendant’s friend, Lana McDowell, testified that she had a definite, specific memory of the defendant babysitting for her on January 1, 1997. The State sought to rebut the defendant’s alibi with t est imony of Audra Lee Gipson, investigator

for the district attorney general’s office. The defense objected on the grounds that the Sta te had not notified the defense of the witness’s identity prior to trial. After first hav ing th e prosecution examine the witness with the jury excused, the trial court permitted the witness to testify in the presence of the jury. Gi ps on testified that he h ad interviewed a

libi witnesses Joan

n Smith and Lana McD

owell before trial. Gipson said that when he interviewed her, Smith stated that she believed her daughter ha d been at Smith’s home with her on Januar

y 1, 1997. Gipson tes

tified that McDowe

ll told hi m that she believed

the defendant babysat

for her on Janua

ry 1, 1997, but was n

ot absolutely cer

tain that she had. On cross-examination, Gipson admitted that Smith had not mentioned whether it was morning, afternoon, or evening that the defendant spent at her home.
T he jury found the defendant guilty, and on October 14, 1998, the trial court entered judgmenton the jury’s verd ict. The trial cou

rt sentenced the

defendant to

a four-year

prison term, withthree years suspended, and denied the defendant’s motion for a new trial. The defendant filed a timely appeal to t

his court. ANALYSIS I. Testimony of the

State’s Rebuttal

Witness The first issue the def

endant presents i

s whether the trial court erre d in allowing the Stat

e to offer the testimo ny of its alibi rebuttal witness. The defendant argues that Investigator Gipson’s testimony should have been barred because the State failed to disclose his identity prior to trial. She asserts that the State’s failure to identify Gipson as a witness violates both Tennessee Rule of Criminal Procedure 16, which states that a party has a continuing duty to disclose material evidence to the opposing side as that evidence becomes available, and Tennessee Rule of Criminal Procedure 12.1(b), which states that t he State has a duty

to provide to defe

nse counsel the name o

f any witness it intends to call

to rebut the testimony of the defendant’s alibi witnesses. The defendant contends that the trial court’s failure to exclude Gipson’s testimony constitutes reversible error. The State argues that the trial court did not abuse its discretion in allowing the testimony. The State points out that Rule 12.1 of the Tennessee Rules of Criminal Procedure provides that the tr ial court may exclude the testimony of an undisclosed witness, but that the trial court is not required to do so. The State asserts that it did not know , until the defendant’s alibi witnesses testified at trial, revealing discrepancies from the accounts they had given Gipson, that it would need t o call Gipson as a rebuttal witness. The State contends that Rule 12.1 contemplates just such a situation as that which occurred at trial, since subsection (c) o f the rule states t hat a party has a-5-

continuing duty to promptly disclose the identity of any additional witness whose identity is learned prior to or during trial. T

he State ass erts that it di sclosed its rebutta l witness to the def

ense immediately

at the conclusion o

f the alibi witnesse

s’ testimony, in accordance with Rule 12.1 (c). The State argues that Rule 16 is inapplicable, because it expressly states that alibi witnesses are governed by Rule 12.1.
Tenness ee Rule of Criminal Proc edure 16(e) sta

tes that “Discove

ry of alibi witness

e s i s governed by Rule 1 2.1.” Rule 12.1 sta tes, in relevant p

art: Rule12.1 Notice of Alibi. — (a) Notice by De fendant. — Upo n written demand . . ., the defendant shall serve within t en day s, . . . upon the district attorney genera l a written notice o

f an intention to offer a defense of

alibi. Such notice b

y the defendant s

hall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and th e names and addresses of the witnesses upon whomthe defendant intends to rely to establish such alibi. (b) Disclosure of inf

ormation and Witne

ss. — Wi thin ten days thereafter . . .

, but in no event less

than ten days bef

ore trial, unless the court otherwise d

irects, the dis

trict attorney general shall serve upon the defendant or the defendant’s attorney a written notice stating the names and addresses of the wit nesses upon whom the state intends to rely to

establish the defendant’s presence at the scene of the allegedoffense and any other wi tnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses. (c) Continuing Duty to Disc lose. — If prior to

or during trial a par

ty learns of an additional witness whose identity, if known, should have been included in the information furnished under subdivision (a ) o r (b), the party shall pr

omptly notify the other party or the other party’s attorney of the e

xistence and iden

tity of such addition

al witness. (d) Failure to Comply. — Upon the failure of either party to comply withthe requireme

nts of this rule, the cour

t may exclude the testimony of

any undisclosed witness offered by such party as to the d efendant’s absence from or presence at, the scene of the alleg e d offense. . . . (e) Exceptions. — For good caus e shown, the court may grant an exception to any of the requirements of this rule.

. . . .-6-

Tenn. R. Crim. P. 12.1 (emphasis added). As the rule makes clear, the de cis ion to exclude the testimony of

an undisclosed wit

ness lies within

the discretion of the trial court. See Tenn. R. Crim. P. 12.1 (d) and (e) ; see also State v. Cory Lamont Gentry , No. 02C01-9708 -CC -00304, 1998 WL 608212 at *3 (Tenn. Crim. App., Jackson, Sept. 14, 1998), perm . app . denied(Tenn. Mar. 8, 1999) (stating that appellate

court reviews trial court’s 12.1 ruling “under abuse of discretion standard”); Statev. Johnson , 673 S.W.2d 877, 883 (Tenn. Crim. App.), perm . app . denied(Tenn. 1984) (stating that rule grants the court “latitude to either exclude the testimony, or, for goodcause shown, grant an exception to any of the requirements of the rule”) . We review this issue, therefore, for an abuse of discretion. At trial, the State argued that, because it co uld not have foreseen that the alibi witnesses would change their stories, it was entitled to present rebuttal testimony. Althou gh the tria l court initially appeared hesita

nt to accept the Sta

te’s argument, sta

ting, “It would app

ear to me that th

e spirit of discovery is for you to provide witnesses that you expect to call,” it ultimately decide d to allow the testimony. Allowing the testimony clearly was within the tria

l court’s discret

ion. We note that the trial court acted to minimize any potential harm that the testimony might cause the defendant by listening to the proffered testimony outside the jury’s presence before allowing the prosecution to present the witne ss to the jury, by allowing the defense to cross-examine the witness, and by affording the defense an opportunity to present surrebuttal. Under these circumstances, we can find no abuse of discretion by the trial court in allowing the State to present its alibi rebuttal testimony. II. Evidence that the Defendant was Present at K-Mart on February 5 The second issue the defendant raises is whether the trial court erred in allowing witnesses to testify that the defendant was present at K-Mart on February 5, 1997. The defendant argues that this testimony amounts to evidence of an u ncharged crime, and should have been excluded under Tennessee Rule of Evidence 403 on the grounds that its prejudicial effect outweighed its probative value. The defendant also raises, for the first time on appeal, a Rule 404(b) objec ti on to the evidence, arguing that the State failed to follow the proper procedures, under 404(b), for presentation of evidence of the defendant’s other crimes or bad acts. The State argues that the trial cour t did not abuse

its discretion in allowing this testimony. The State asserts that the testimony rega r ding the defendant’s presence in the store on February 5 was offered

solely to prove identity, and that it was relevant to the issue of whether the defendant was the woman who commi tted the thefts

on December 30, 1996, January 1, 1997, and January 4, 1997. The admissib ility of evidence gener ally lies within the s

ound discretion of

the trial court. Statev. Edison , 9 S.W.3d 75, 77 (Tenn. 1999); State v. Stinnett , 958 S.W.2d 329, 331 (Tenn. 1997). The trial court

is accorded wide latitude in its decisions on theadmissibility of evidence. Stinnett , 958 S.W.2d at 331; Overstreet v. Sho ney’s, Inc. , 4 S.W.3d 694, 702 (Tenn. Ct. App.), perm . app . denied(Tenn. 1999) . The trial court’s decision to allow or disallow evidence will not be overturned on appeal absent a showing that it has abused its broad discretion. Overstreet , 4 S.W.3d at 702; State-7-

v. Robinson , 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995). We review this issue, therefore, under an abuse of discretion standard. On appeal, the defendant argues that the trial court’s allowance of the testimony of Silva and Gaylor was error under both Tennessee Rule of Evidence 403 and Tennessee Rule of Evi dence 404(b). However, the only objection that thedefendant raised to the evidence at trial was offered under Rule 403. Objections to evidence must be raised contempor aneously with the objectiona

ble testimony, and must

state the specific ground upon which they are based. Overstreet , 4 S.W.3d at 702; State v. Crawford , 620 S.W.2d 543, 545 (Tenn. Crim. App.), perm . app . denied(Tenn. 1981). An objection that is not raised at trial cannot be raised for the first time on appeal. Overstreet , 4 S.W.3d at 702; Crawford , 620 S.W.2d at 545. Co nseque ntly, we will consider only the Rule 403 objection that the defendant raised at trial. Tennessee Rule

of Evidence 403 states that “[a]lthough relevant, evidence may be excluded if its probative value is subst antially outweighed by the danger of unfair prejudice[.]” Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequenceto the determination of the action more probable or l ess probable t han it would be withoutthe evidence.” Tenn. R. Evid. 401. The defendant apparently concedes the relevance of the testimony regarding her February 5 presenc e in the store, but a rgues that its prob

ative value is outweighed by its prejudicial effect. We disagree. Silva’s testimony sho

wed that the defe

ndant, whom Coffman had identified as the woman who charged ite

ms t o the hospital on January 4, 1997, signing the receipt with the name “Janet Watson,” had shown Silva a driver’s license with the name “Stinson.” Thus, Silva’s testimony was relevant to the issue of whether the defendant was the woman who charged the items to the hospital on the dates in question. Gaylor, resource coordinator of purchasing at Ridgeview, simply testified that she knew and was familiar with the defendant, and that she had seenher in the Oak Ridge KMart on February 5, 1997. Gaylor’s testimony was relevant to the issue of whether the defendant was in the store on February 5 and was the woma n who showed the “S

tinson” driver’s

license to Silva. Silva did not testify that the defendant had either charged, or

attempted to char

ge, items to the hospital on February 5. Neither Silva nor Gaylor testified that the defendant acted in any inappropriate

or illegal manner. Moreover, the trial court, with regard to both witnesses’ testimony, specifically

instructed the jury that it was to consider the evidence offered for identification purposes only. The defendant w

as in no way unfair

ly prejudiced by th

is testimony. Accordingly, we find no abuse of discretion by the trial court in allowing the testimony.

CONCLUSION
Based on the foregoing reasoning and authorities, w e affirm the judgm

ent of the trial co

urt.-8- ___________________________________ ALAN E. GLENN, JUDGE