IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 3, 2015

STATE OF TENNESSEE v. TALMADGE HURT

Appeal from the Criminal Court for Shelby County

No. 0906562 James M. Lammey, Judge

No. W2014-00513-CCA-R3-CD - Filed April 20, 2015

Defendant, Talmadge Hurt, was indicted by the Shelby County Grand Jury in September 

of 2009 for aggravated robbery and attempted aggravated robbery. He was tried with codefendant Adrian Chaney for events that occurred at La Playita Mexican Restaurant in 

Memphis in April of 2007. The jury convicted Defendant of facilitation of aggravated 

robbery and facilitation of attempted aggravated robbery. After a sentencing hearing, 

Defendant was sentenced to consecutive sentences of ten years for facilitation of 

aggravated robbery and eight years for facilitation of attempted aggravated robbery. 

Defendant did not file a motion for new trial or seek a direct appeal. He filed a petition 

for post-conviction relief in October of 2011, in which he alleged, among other things, 

that he received ineffective assistance of counsel when trial counsel failed to file a motion 

for new trial. The post-conviction court granted leave for Defendant to file a delayed 

appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(3) and Tennessee 

Supreme Court Rule 28, Section 9. Defendant filed a motion for new trial. The motion 

was denied by the trial court and this appeal followed. Defendant presents the following 

issues for our review on appeal: (1) whether the evidence was sufficient to support the 

convictions; and (2) whether the trial court erred by refusing to allow a defense witness to 

testify whether he could identify Defendant from a still photograph taken from 

surveillance video of the incident. After a review, we determine that the evidence was 

sufficient to support the convictions for aggravated robbery and attempted aggravated 

robbery. Additionally, we determine that the trial court did not err by excluding the 

opinion testimony of a lay witness that was not helpful to a determination of a fact in 

issue. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT W.

WEDEMEYER and ROBERT H. MONTGOMERY,JR., JJ., joined. 
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Joseph A. McClusky (on appeal) and Scott Hall (at trial), Memphis, Tennessee, for the 

appellant, Talmadge Hurt.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney 

General; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant 

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

OPINION

Factual Background

The underlying facts are set forth in this Court‟s opinion in the direct appeal of the 

co-defendant, Adrian Chaney, as follows:

In September of 2009, [Chaney] and [Defendant] were indicted for 

one count of aggravated robbery and one count of attempted aggravated 

robbery for events that took place at La Playita Mexican Restaurant in 

Memphis on April 7, 2007.

At trial, Whitney Horton and Melissa South, the victims, both 

testified that they were working at the Memphis Humane Society on April 

7, 2007. They left work around noon to get lunch at La Playita Mexican 

Restaurant. As they entered the restaurant to place their take-out orders, 

they noticed two African-American men outside. One of the men was 

described as larger than the other, wearing a black letterman jacket with 

orange sleeves and a baseball cap over his long, twisted hair. The other 

man was described as smaller, wearing a dark gray hooded sweatshirt.

The victims walked into the restaurant, ordered their food, and sat 

down on a small bench near the entrance to wait for their order. After 

about five minutes, one of the men from the parking lot came inside. He 

looked briefly around the restaurant when he entered. The other man 

followed soon thereafter, wearing a “red” bandana with white skulls and 

crossbones outlined in black over his face. The second man “did not 

hesitate” when he entered the restaurant. He was carrying a silver gun, 

went straight to the victims, and pointed the gun at Ms. Horton. The gun 

was about six inches away from her face. She was “scared for [her] life if 

not more.” The assailant mumbled something before grabbing her purse.

Ms. Horton described the purse as “[w]hite with multicolored hearts on it 
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and bright pink straps.” Inside the purse was Ms. Horton‟s wallet, 

checkbook, twenty dollars in cash, an iPod, and car keys.

The assailant next approached Ms. South; she refused to relinquish 

her purse. At that point, the assailant attempted to cock the gun. Ms. 

Horton screamed. Restaurant employees ran toward them and the men left 

the restaurant. Ms. Horton stayed inside while Ms. South ran outside to call 

911 and try to see in which direction the assailants had escaped. Ms. South 

and other witnesses from a nearby nail salon saw the two men run to a 

large, gold sedan that looked like a Crown Victoria or Buick Regal with 

dark tinted windows. The car took off at a normal speed.

Ms. Horton‟s purse was later returned to her but the contents were 

missing. The victims were presented with photographic lineups during 

which they independently identified both [Chaney] and [Defendant]. 

[Chaney] was identified as the smaller assailant with the gun.

. . . .

Both victims identified [Chaney] and [Defendant] at trial. . . .

A video tape of the robbery from the restaurant surveillance camera 

was played for the jury. Additionally, during the investigation, the State 

learned that [Defendant] drove a gold Mercury Grand Marquis, a car with 

the same body style as the Ford Crown Victoria.

[Chaney and Defendant] did not testify at trial but presented several 

witnesses in their behalf. The majority of the witnesses testified that 

[Chaney and Defendant], brothers, did not have a history of always getting 

along. The various witnesses testified that the men were seen together at a 

barbeque at the home of their deceased uncle for the majority of the day 

that the robbery took place. There was testimony that the gold Mercury 

Grand Marquis was at the location of the barbeque on the day of the 

robbery. Further, there was testimony from [Chaney‟s] girlfriend that he 

helped her look at and clean a house for a portion of the day on which the 

robbery took place.

State v. Adrian Chaney, No. W2011-00141-CCA-R3-CD, 2013 WL 979100, at 

*1-2 (Tenn. Crim. App. Mar, 12, 2013). The following additional facts are included to 

assist with our determination of the issues presented in Defendant‟s appeal:
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The victims described seeing Defendant and Chaney walking back and forth 

outside the restaurant prior to Defendant‟s entry into the restaurant. When Defendant 

entered La Playita, he approached the victims and asked them about the quality of the 

food at the restaurant. The victims did not talk to Defendant; he turned around and exited 

the restaurant. Once outside, he talked briefly to Chaney, engaged in a handshake 

gesture, and walked toward the nail salon next door before Chaney entered the restaurant 

wielding a gun.

During the investigation of the robbery, Officer Jerry Lloyd received information 

about the type of car used in the robbery. A car matching the description—a gold 

Mercury Marquis with chrome rims—was found parked in the front yard of a home on 

Berry Lane occupied by Defendant. Defendant was discovered to be the owner of the 

vehicle. He bought the 1998 Mercury Grand Marquis from Charles Brown in 2006. The 

car was repossessed by Mr. Brown at one point because Defendant failed to make 

payments. Mr. Brown testified at trial that even though Defendant owed him money for 

the car, he fixed a broken window, painted the car gold, and replaced the tires before he 

gave the car back to Defendant. Mr. Brown claimed that he drove the car to a barbeque

at Defendant‟s house, which other witnesses testified occurred on the same day of the 

robbery. 

At the conclusion of the proof, the jury found Chaney guilty of aggravated robbery 

and attempted aggravated robbery. Defendant, on the other hand, was convicted of the 

lesser included offenses of facilitation of aggravated robbery and facilitation of attempted 

aggravated robbery. Defendant was sentenced to ten years in incarceration for the 

facilitation of aggravated robbery conviction and eight years in incarceration for the 

conviction for facilitation of attempted aggravated robbery. The trial court ordered the 

sentences to be served consecutively. The judgments were entered on December 7, 2010.

Defendant did not file a timely motion for new trial. On October 5, 2011, 

Defendant filed a timely petition for post-conviction relief. In the petition, he alleged that 

he received ineffective assistance of counsel. Specifically, Defendant alleged that trial 

counsel‟s failure to file a timely motion for new trial effectively deprived him of the 

ability to appeal. He sought relief in the form of a late-filed motion for new trial. The 

post-conviction court granted a delayed appeal pursuant to Tennessee Code Annotated 

section 40-30-113(a)(3)1and Tennessee Supreme Court Rule 28, Section 9.2 

 

1 Tennessee Code Annotated section 40-30-113, provides, in pertinent part:

(a) When the trial judge conducting a hearing pursuant to this part finds that the petitioner 

was denied the right to an appeal from the original conviction in violation of the 

Constitution of the United States or the Constitution of Tennessee and that there is an 

adequate record of the original trial proceeding available for a review, the judge can:
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As a result of the grant of the delayed appeal, Defendant filed a motion for new 

trial and an amended motion for new trial. In addition to several other issues,3 Defendant 

challenged both the sufficiency of the evidence and the trial court‟s refusal to allow a 

defense witness to testify whether he recognized Defendant from a photograph. The trial 

court denied the motion for new trial. Defendant appeals. 

Analysis

On appeal, Defendant argues that the evidence was insufficient to support his 

convictions and that the trial court erred by refusing to allow a defense witness to testify 

whether he could recognize Defendant from a photograph. 

A. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence for his convictions for 

facilitation of aggravated robbery and facilitation of attempted aggravated robbery. 

Defendant insists that the State failed to prove not only his role in the offenses but failed 

to prove beyond a reasonable doubt his identity as the perpetrator. The State points to the 

ample evidence presented at trial that established both Defendant‟s identity and his role 

in the crimes to support their argument that the evidence was more than sufficient to 

sustain the convictions.

When a defendant challenges the sufficiency of the evidence, this Court is obliged 

to review that claim according to certain well-settled principles. A guilty verdict removes 

 

. . . .

(3) If no motion for a new trial was filed in the original proceeding, authorize a motion to 

be made before the original trial court within thirty (30) days. The motion shall be 

disposed of by the original trial court as if the motion had been filed under authority of 

Rule 59 of the Rules of Civil Procedure.

2 This rule provides for the grant of a delayed appeal by a trial court in pertinent part as follows:

(a) Appeal as of Right Pursuant to Rule 3, Tennessee Rules of Appellate Procedure--

Upon determination by the trial court that the petitioner was deprived of the right to file 

an appeal pursuant to Rule 3, Tennessee Rules of Appellate Procedure, the trial court 

shall apply the procedures set out in Tennessee Code Annotated section 40-30-113.

3 These issues, not raised on appeal, are deemed waived.
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the presumption of innocence and replaces it with a presumption of guilt. State v. Evans, 

838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal 

to demonstrate why the evidence is insufficient to support the conviction. State v. 

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). 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); 

Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “the State is entitled to the 

strongest legitimate view of the evidence and to all reasonable and legitimate inferences 

that may be drawn therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). 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)).

Aggravated robbery, as relevant to this appeal, is “the intentional or knowing theft 

of property from the person of another by violence or putting the person in fear” that is 

“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to 

lead the victim to reasonably believe it to be a deadly weapon . . . .” T.C.A. §§ 39-13-

401, -402. “A person is criminally responsible for the facilitation of a felony, if, knowing 

that another intends to commit a specific felony, but without the intent required for 

criminal responsibility under [Tennessee Code Annotated section] 39-11-402(2), the 

person knowingly furnishes substantial assistance in the commission of the felony.” Id. § 

39-11-403(a). Criminal attempt is committed when a person, “acting with the kind of 

culpability otherwise required for the offense,” does one of the following:

(1) Intentionally engages in action or causes a result that would constitute 

an offense, if the circumstances surrounding the conduct were as the person 

believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and 

believes the conduct will cause the result without further conduct on the 

person‟s part; or
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(3) Acts 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.

Id. § 39-12-101(a). 

Defendant argues that the proof failed to establish his participation in the robbery. 

However, there was ample proof that Defendant and Chaney were together and acted in 

concert. They were seen standing together talking outside the restaurant as the victims 

entered to buy their lunch. Defendant was then seen pacing back and forth outside the 

restaurant as the victims waited for their food. Defendant eventually entered the 

restaurant and made small talk with the victims before walking back outside. Once 

outside, Defendant spoke to Chaney, and gave him a special hand-shake before Chaney 

entered the restaurant and robbed one of the victims. A defendant‟s requisite criminal 

intent may be inferred from his “presence, companionship, and conduct before and after 

the offense.” State v. McBee, 644 S.W.2d 425, 428 (Tenn. Crim. App. 1982). Moreover, 

in the excitement that followed the robberies, Ms. South was able to see Chaney exit the 

restaurant and flee to the left, where she caught a glimpse of a gold car with tinted 

windows. Two additional witnesses from next door confirmed that a gold Crown 

Victoria-like car pulled away from the restaurant. A vehicle matching that description 

belonged to Defendant at the time of the robbery. From this evidence, a reasonable jury 

could conclude that Defendant entered the restaurant to scope out the interior of the 

establishment for Chaney and then further assisted him by driving the getaway car. 

These actions certainly could be interpreted by the jury as knowingly furnishing

substantial assistance to Chaney in the commission of the aggravated robbery and 

attempted aggravated robbery. 

Defendant also challenges the establishment of his identity as the perpetrator. 

“The identity of the perpetrator is an essential element of any crime.” State v. Robert 

Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. 

App. Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)). The 

State has the burden of proving “the identity of the defendant as the perpetrator beyond a 

reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App. 

1995)). “The credible testimony of one identification witness is sufficient to support a 

conviction if the witness viewed the accused under such circumstances as would permit a 

positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. 

App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)). 

The identification of the defendant as the perpetrator is a question of fact for the jury after 

considering all the relevant proof. Strickland, 885 S.W.2d at 87 (citing State v. 

Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). In addition, “the testimony 
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of a victim, by itself, is sufficient to support a conviction.” Id. (citing State v. Williams, 

623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)); State v. Joshua Smith, No. W2012-

01059-CCA-R3-CD, 2013 WL 6095831 (Tenn. Crim. App. Nov. 19, 2013), perm. app. 

denied, (Tenn. Mar. 17, 2014). 

Both victims positively identified Defendant from photographic lineups and again 

at trial. Further, as mentioned above, the car owned by Defendant matched the 

description of the car seen leaving the scene of the crime. While Defendant presented 

witnesses who testified that he attended a family barbeque the entire day of the robbery, 

several of the witnesses could not recall with specificity either the times of the barbeque 

or the exact date on which it occurred. The assessment of the credibility of the witnesses 

and the weight and value of the evidence are entrusted to the jury as the trier of fact. We 

will not reevaluate the evidence on appeal. Pruett, 788 S.W.2d at 561. The jury heard 

the proof and clearly chose to disbelieve the version painted by defense witnesses. The

proof was sufficient to establish Defendant‟s identity and that his actions justified a 

finding of guilty for both convictions—facilitation of aggravated robbery and facilitation 

of attempted aggravated robbery. Defendant is not entitled to relief on this issue.

B. Opinion Testimony of Lay Witness

Defendant insists that it was error for the trial court to exclude the testimony of 

defense witness Deaderick Sears during which Mr. Sears was asked if he recognized 

Defendant in two photographs taken from the surveillance video at the restaurant. 

Defendant cites Tennessee Rule of Evidence 704 to support his position. Specifically he 

argues that Mr. Sears would have provided evidence critical to the defense, his opinion 

bore sufficient indicia of reliability, and there was no interest supporting the exclusion of 

the evidence. The State disagrees, citing Tennessee Rule of Evidence 701 to support 

their position.

To begin our analysis, we note that the admissibility of evidence is within the 

sound discretion of the trial court, and this Court will not interfere with the exercise of 

that discretion in the absence of a clear showing of abuse appearing on the face of the 

record. See State v. Barry D. McCoy, No. M2013-00912-SC-R11-CD, ___S.W.3d ___, 

2014 WL 6725695, at *5 (Tenn. Dec. 1, 2014); State v. DuBose, 953 S.W.2d 649, 652 

(Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993). When the 

admission or exclusion of opinion evidence is challenged on appeal, it is reviewable only 

for abuse of discretion. See, e.g., State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App.

1997). An abuse of discretion occurs when the trial court (1) applies an incorrect legal 

standard; (2) reaches an illogical or unreasonable decision; or (3) bases its decision on a 

clearly erroneous assessment of the evidence. State v. Mangrum, 403 S.W.3d 152, 166 

(Tenn. 2013) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).
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Evidence is relevant if it has “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. Relevant evidence is generally 

admissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury, or by considerations of delay, waste of time, or 

needless presentation of cumulative evidence. Tenn. R. Evid. 403. 

Rule 701 of the Tennessee Rules of Evidence, entitled “Opinion Testimony by 

Lay Witnesses” provides as follows:

(a) Generally. If a witness is not testifying as an expert, the witness‟s 

testimony in the form of opinions or inferences is limited to those opinions 

or inferences which are

(1) rationally based on the perception of the witness and

(2) helpful to a clear understanding of the witness‟s testimony or the 

determination of a fact in issue.

The Tennessee Rule is nearly identical to its federal counterpart. The Tennessee rule, as 

amended in 1996, reflects the trend in favor of allowing lay opinion testimony under 

certain circumstances:

Although American law traditionally has treated lay opinion testimony as 

an unpopular relative who keeps appearing at family reunions, there is now 

a recognition that this relative not only should be invited to the gathering 

but may be a contributing part of the family. . . . The reason for this [trend 

in favor of allowing the admission of lay opinion testimony] is simple: 

sometimes lay opinion testimony is both necessary and valuable. The lay 

witness may not be able to provide helpful proof without giving an opinion.

For example, how could a witness testify about age, identity, speed, or 

height without delving into the realm of opinion? What is helpful is the 

witness‟s total impression, not the constituent elements.

Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law of Evidence § 

7.01[3] (6th ed. 2001). Thus, a lay person may, as appropriate, testify as to his or her 

personal observation of a fact or event in the form of an opinion commonly understood 

by most people. See State v. Wingard, 891 S.W.2d 628, 636 (Tenn. Crim. App. 1994). 
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A witness‟s lay opinion testimony is admissible only when the jury could not 

readily draw its own conclusions on the issue without the witness‟s lay opinion or where 

the witness cannot effectively testify without stating the inference or opinion. State v. 

Schiefelbein, 230 S.W.3d 88, 130 (Tenn. Crim. App. 2007). The lay opinion testimony 

should be based on admissible facts which are in evidence. State v. Boggs, 932 S.W.2d 

467, 474 (Tenn. Crim. App. 1996). While expert opinion is based on a process of 

reasoning which can be mastered only by specialists in the field, lay opinion should be 

based on a process of reasoning drawn from everyday life. State v. Brown, 836 S.W.2d 

530, 549 (Tenn. 1992). A lay opinion should be within the range of knowledge or 

understanding of ordinary laymen. Boggs, 932 S.W.2d at 474. In other words, opinions 

permissible under Tennessee Rule of Evidence 701 must be based on the witness‟s own 

observations, should require no expertise, and ought to be within the range of common 

experience. State v. Samuel, 243 S.W.3d 592, 603 (Tenn. Crim. App. 2007).

Common examples of lay witness testimony include: (1) testimony regarding the 

speed at which a car is traveling, Kim v. Boucher, 55 S.W.3d 551, 555-56 (Tenn. Ct. App.

2001); (2) testimony about whether a child was afraid, Schiefelbein, 230 S.W.3d at 130; 

(3) testimony about whether a person was physically impaired, Boggs, 932 S.W.2d at 

474; (4) testimony about whether a person was intoxicated, see Kirksey v. Overton Pub, 

Inc., 804 S.W.2d 68, 75 (Tenn. Ct. App. 1990); (5) testimony about whether an injury 

looked like a cigarette burn, Brown, 836 S.W.2d at 550; (6) testimony that an injury 

caused by digging a fingernail into the victim‟s skin was recent, Samuel, 243 S.W.3d at 

603; and (7) testimony that a door looked like it had been pried open and a footprint was 

similar to the defendant‟s, State v. Anthony Duran Hines, No. M2007-00493-CCA-R3-

CD, 2008 WL 2026113, at *1-2 (Tenn. Crim. App. May 12, 2008), perm. app. denied

(Tenn. Oct. 6, 2008). However, lay opinion testimony may be improper where the 

witness giving the lay opinion effectively usurps the function of the jury. United States v. 

Grinage, 390 F.3d 746, 750-51 (2d Cir. 2004) (holding that testimony interpreting both 

phone calls that the jury heard and calls the jury did not hear and making inferences 

highlighting similarities between the defendant‟s calls and others made in furtherance of 

a conspiracy was not permissible lay opinion testimony under Federal Rule of Evidence 

701). Additionally, we note that “[t]estimony in the form of an opinion or inference 

otherwise admissible is not objectionable because it embraces an ultimate issue to be 

decided by the trier of fact.” Tenn. R. Evid. 704. 

With regard to the case herein, Defense counsel sought to introduce the testimony 

of Mr. Sears, a friend of Defendant, to testify whether the person on the videotape was 

actually Defendant. Applying Rule 701, we can easily determine that Mr. Sears‟s 

proposed testimony certainly would be rationally based on his own perception of the 

photograph. While he was not present at the event itself, this is not a requirement of the 

rule. Mr. Sears was familiar with Defendant—he testified that he went to school with 
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and played ball with Defendant for a number of years—and he was, therefore, certainly

familiar with Defendant‟s appearance. Mr. Sears could have looked at the photographs in 

question and given a rationally-based opinion as to whether the person in the photographs 

looked like Defendant. However, there was no indication that this opinion testimony 

would have been helpful to a clear understanding of the ultimate issue: Defendant‟s 

identity. Both victims had already identified Defendant as the perpetrator from a 

photographic lineup and again at trial. The surveillance camera videotape, albeit poor in 

quality,4 was played for the jury. Defendant was present at counsel table throughout the 

trial. There was no suggestion that Defendant had radically changed his appearance prior 

to either the robbery or trial. The jury was in the same position as Mr. Sears in evaluating 

the surveillance camera video. Thus, Mr. Sears‟s opinion was not admissible, as the jury 

could draw its own conclusions on the issue without the witness‟s lay opinion. 

Schiefelbein, 230 S.W.3d at 130. In other words, the testimony of Mr. Sears was not 

“helpful to a clear understanding of the witness‟s testimony or the determination of a fact 

in issue” and was, in our view, also cumulative and irrelevant. Consequently, the trial 

court did not abuse its discretion in excluding the testimony. Defendant is not entitled to 

relief.

Conclusion

Based on the foregoing, we affirm the judgments of the trial court.

_________________________________

TIMOTHY L. EASTER, JUDGE

 

4 The surveillance tape was, according to the trial court, “one of the poorest quality videos . . . ever seen.”