### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A ugust 21, 2001
STATE OF TENNESSEE v. JERRY BREE DING
Direct Appeal from the Criminal Court for Overt on County No. 3820 Leon C. Burns, Jr., Judge

No. M2001-00043-CCA-R3-CD - F iled January 25, 2002

The defendant appeals his conviction of agg ravated robbery f or the armed robbery

of the Union Bank and Trust in Rickman, Tennessee. We conclude that the defenda nt did not prove his claim of ineffective assistance of counsel and the record supports the trial court’s finding that the defendant persona lly waived his right to testify . Furthermore, the record reveal s that the defendant introduced evidence about an u

ncharg ed crime

in order to impe ach testimony by a witness for the state and, therefore, cannot challenge the introduction of such evidenc e on appea l. The trial cou rt prope rly fulfilled its duty to act as a thirteenth juror. In addition, there is sufficient evidenc e to support the defendant’s conviction for agg ravated robbery . The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E V ERE TT W IL LI AMS , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., JJ., joined.

Micha el R. G iaim o, Livi ngsto n, Ten nesse e, for t he app ellan t, J erry Breedi ng.
Paul G. Summers, Attorney Gene ral and Reporter; Mar

k A. Fulks, As sistant Att orney Genera l; William Edward Gibson , Distric t Attorney Gene ral; and Owen G. Burnett, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION

The defendant, Jerry

Breeding, was indict

ed for theft of property

with a value of over ten thousand dollars, unlawful possession of a handgun, and two counts of aggrava ted robbery . The trial
on the unlawful possession of a handgun charg e was severed by an agreed order. After a trial onthe remaining charges, a jury found the def

endan t gu ilty of agg

ravated robbery

and assessed a fine of eighteen thousand dollars. The trial court imposed a fineof eighteen thousand dollars and ordere d the defendant

to serve thirty (30) y ears in p rison as a caree r offen der. The

defenda nt filed a timely motion for a new trial, which was denied by the trial cou

rt. A timely notice of appe al followed. The following four issu es are r aised in th

is appeal: (1) whe

ther the re was su fficien t evidenc e to support the conviction for aggrava ted robbery , (2) whether thedefen dant received effective assistanc e of counsel, (3) wh ether t he tri al cou rt erre d by allow ing t he stat e to question a witness about the defendant’s uncharged criminal conduct, and (4) whether the trial court failed to perform its function as thirteenth juror.-2- FACTS

Diane Si dw el l a nd Vi ck ie Ha rv ey, te llers at the Union Bank and Trust in Rickman, Tenn es see, testified at the defendant’s trial about a bank robber y that occurr

ed in March of 1996. Ms. Sidwell was working behind thete ller counter when two men walked into the bank wear ing stockings over their faces. One of the men had a gun and ordere d Ms. Sidwell and Ms. H arvey to “get [thei r] hands up! ” Ms. Sidwell immediately hit the silent alarm button located in her teller window. While the tw o tellersstood with t heir hands inthe air, the gunman went behind the counter and emptied each teller’s cash drawer into a cloth bag. Then the two men left the ba

nk. Ms. Sidw ell sounded the alarm a second time and went to lock the bank’s door. As she was locking the door, she heard gravel spin and saw a lig ht bl ue Mercur y Cougar le aving th e bank pa rking lo t. Ms. Sidwell watched the car until it was out of sight and then called the Sheriff’s Department to report the robbery. Ms. Sidwell could not identifyeither of the men because of the stocking s but believed bothmen were Caucasian. She also noticed that they we re both wearing gloves. Ms. Sidwell was notable to “identify”the license plate number of the car she sa w l ea vi ng th e b an k a ft er th e r ob be ry. At the request of

police , s he vi ew ed a l ig ht bl ue Me rc ur y Co ug ar a f ew ho ur s a ft er th e r ob be ry. Alth ough Ms. Sidwell was unable to positively identify it as the car

she saw earlier, she testified that it lo ok ed “e xa ct ly l ik e” th e l ig ht bl ue Me rc ur y Co ug ar sh e s aw af te r t he ro bb er y.
Ms. Ha rvey’s testimony

was substantially similar to Ms. Sidwell’s. Ms. Harvey indicated that she follo wed Ms. Sidwell to lock the door to the bank and also saw a light blue Mercur y Cougar leaving the bank parking lot. Ms. Harvey observed that the driver of the car wa s wearing a stocking
over his face but was not able to “identify” the car’s license plate number. L ater that aftern oon, Ms. Harvey was aske d to indepe

ndently view the same light blue Mercury Cougar as Ms. Sidwell. Like Ms. Sidwe ll, sh e indicated that it looked “exactly like” the one she saw leaving the bank afte r the
ro bb er y. Both tellers also testified that fivehundred dollars in bait money wa s taken from each of their teller drawers. The bait money was exclusively in ten-dollar bills. Randy Dodson, an assistant security of fi cer for th e Union Bank and Trust in Rickman, Tennessee, was called

pursuant to bank policy af ter the robbery

occurred. Mr. Dodson prepared a report indicating that a total of

$17,594.00 had beenstolen from the bank. This amount included one thousand d

ollars in b ait

money . As a

matter of course, bait money is bundled together and placed in each teller’s drawer with the re st of the money. The ser ial number of each bait bill is recorded on
a form, which also iden

tifies the teller dr awer wh ere the bait mone

y is located . The bait money is nototherwis e identifiable to someone other than the teller. Both Ms. Sidwell and Ms. Harvey had five hundred dollars in bait money in their te ller drawer on the day

of the r obbery. Mr. Dodson identified the two bait money forms that listed the serial number for each of the bills that were taken from Ms. Sidwell’s and Ms. Harvey ’s drawer.

Mr. Dodson’s wife, also a bank employee , ve rified th at she pe rsonally prepar ed the ba it money taken from Ms. Harvey ’s drawer. Ms. Dodson testified that the serial numbers listed on the form were in her handwriting. During her testimony, Ms. Dodson was hande d a ten-dollar bill and askedto determine whether it matched the serial number for any of the bills that she

had prepared
as bait money for Ms. Ha

rvey’s dr awer. Ms. Dodson testified that the ten-dollar bill was one of the bait bills taken from Ms. Harvey ’s teller drawer. Terry McBride and Gene J ohnso n, employees at Ge ne Johnson’s Tires, testified about the ten-dollar bill identified by Ms. Dodson. Mr. McBr ide testified that the defendant used the ten-dollar bill to pay

on his account a week after the robbe ry. Mr. Mc B ride had been alerted by the FBI that-3-

the defendant was suspected of committing the robber y and had been asked

to watch for ten-dollar bills. At appro ximately

eight o’ clock a. m., one week afte r the rob bery , the def

endant pa id thirty dollars on his account with four five-dollar bills and one ten-dollar bill. Mr. McBride took the tendollar bill out of the register after the defenda nt left and gave

it to his boss, Gene Johnson. Later that da y, he saw someone from the sher iff’s of fice co me to the st

ation and examine the

bill. At ten -forty p.m., an FBI a

gent came to the station to retrieve the bill. At that time , Mr. McB ride wasasked to initial the bill in order to identify it as the one he had ta ken from the defendant earlier that day

. Mr. Johnson, the owner of the station, verified that the FBI had requested that Mr. Johnson and his employees hold any ten-dollar bills passed by the de fendant. A week later , Mr. McB rid e brought him a ten-dollar bill, which the defendant had used to pay on his account. Mr. Johnson immediate

ly called the sheriff’s department to report what had happened and to give them the serial number from the bill. Later, someone from the sheriff’s department asked Mr. Johnson to hold the bill. Mr. Johnson p

ut the bill in an e

nvelope a nd place d the enve

lope in his safe. H e eventu ally turned the bill over to an FBI a gent, who came to the service stati on to pick i t up l ater t hat ev ening.

Debbie Moody was the defendant’s girlfriend a t the time of the

robbery . Her sist

er, Tamm y Ar ne y, testified at

the defendant’s trial. Ms. Arney testified that at the time of the robbery , her sister owneda light b lue Merc

ury Cougar , which wa s the one i dentifie d by bothbank tellers. She further testified that she saw the defendant driving her sister’s car near the bank on the day

of the ro bb er y. She also noticed that there was a male passeng er in the car with the defendant.

Michael Moody, Debbie Moody ’s br other , also testified that he saw a light blue Mercury Cougar on the day of the r

obbery. Mr. Moody

was working on his car in his driveway when he saw two men in a light blue Mercury Cougar drive past his house. Five or ten minutes later, he saw the Cougar return heading in the other direction. Both times the Coug ar was following a tan four-door car. Afew weeks later, he saw the def endant ri di ng in th e C ou ga r w it h h is si st er , D eb bi e M oo dy. The defendant asked Mr. Moody to come to his side of the car where the defendant

showed him a “little blue bag ” full of m

oney . Mr. Mo ody also ob served that the defendant bought a new set of chrome wheels, a new mig welder, a ne w air compressor, and had his car painted af ter the ro bb er y.
At the time of the robbery, B onnie Moody, Michael a nd Debbie Moody’s mother , lived on the same road as Michael Moody . She testified that on the day of the robbery

she also saw what she believedto b e h er daughter’s light blue Merc ury Couga

r following a light tan car past her house

. The road was a dead end with a wooded area at the end. Ms. Moody saw the two cars turn

onto a dirtlogging road

and then r

eturn pa st Ms. Moody ’s home about ten minutes later. Ms . Moody could not, however, identify

the occupants of either car. During the testimony of Tammy Arney, B onnie Moody, and Mi ch ae l M oo dy, questions were raisedabout an unrelated criminal charge against the d efendant, which had been dismissed. The specific facts of the ch arge w ere not d iscussed . Howeve

r, the ch arge a

pparent ly in volved bo th Mich ae l Moody and the def endant. Both Ms. Moody a nd Ms. Arney admitted to disliking the defenda nt becau se of the

unrelat ed incide nt involvin g one of

their fa mily members.

Vincent Bry ant, a ch

ildhood ac quaintance of the defenda nt, testif i ed that he was at a gas station in Rickman on the day of the r obbery. Mr. B ryant recalledthat ther e was a s ki boat wit

h girls in bikini swi mwear

at the gas station. While watching the girls, Mr. B ryant noticed that the defendant and the defendant’s brother were also at the gas station. He observed that they were

in a M ercury Cougar that looked to be a gray ish or silverish color. Mr. Bry ant could only see the rea r-4-

of the Cougar because the ski boat was pa rked in between Mr. Bryant and the Cougar.

A friend o f the def

endant, Lonnie Greenwood, testified tha t he was riding in the car with the defendant and Debbie Moody a

few ye ars after the robbery . According to Mr. Greenwood, the defendant told him that the Union Bank and Trust in Rickman was a “pushover” as they drove pa st the bank. Mr. Greenwood’s testimony was part of a plea barga

in agreement on a c harge that wa s pending against him when he gave police a statement inculpating the defendant in the instant charg es.
Michael Hollerman, an inmate who was incarcerated with the def endant prior to his trial for the instant charges, testified about statement s t he de fe nd an t m ad e t o h im co nc er ni ng th e r ob be ry. According to Mr. Hollerman, the defendant admitted to him that he had robbed the Union Bank and Trust in Rickman. The defendant also indicated that

his girlfriend’s mother had seen him after the robbery driving a car that fit the

description of the car used in the robbery . Mr. Hollerman reported his convers ations wit

h the defendant to authorities because he was c oncerned that thedefendant was going to harm his girlfriend’s mother.

Two witnesses testified for the defenda nt. Pascha

l Denson te stified th at he live d on the sa me roadas Bonnie and Michael Moody . On th e d ay o f t he ro bb er y, Mr. Denson was home during the time that Bonnie and MichaelMoody testified that they saw a lig ht blue Me

rcury Cougar drive pa st their homes and return a fewminutes later. According to Mr. Denson, he waswaiting for the ma

il to arrive and was watching outside. Mr. Denson did not see a blue Me rcury Cougar drive pa st his home. Additiona

lly, Bobby

Roberts te stified th at he saw the defe ndant i mme diately after

the robbery at the defendant’s home, which was in Gainesboro, Tennessee. Mr. Roberts was a t a hardware store
near the Union

Bank and Trust

in Rickman when he heard on a police scanner that the bank had been robbed. He immediately drove to the def endant’s home and o

bserved the defe ndant sta nding in “ his garage smoking a

cigarette.”

ANALYSIS

The defenda

nt raisesfour issu es in this a ppeal: (1) whether

there is s ufficie

nt evidence to support the defendant’s conviction, (2) whether he r ecei ve d effective assistance of counsel, (3) whether the trial court properly allowed testimony conce rning an uncharg ed crime allegedl y committed by the defenda nt, and (4) whether the trial court fulfilled its role as a thirteenth juror

.

I. Sufficiency of Evidence

The defenda

nt contends that the

evidenc e is insufficient to support the jury’s finding that he committed aggravated robbe ry. The de

fendant concedes that there was suff icient evide nce t o establish that a robbery was committed but a

rgues t hat the evidence

was insuf ficient t o identify him
as th e p er so n w ho co mm it te d t he ro bb er y.
The defendant

has the burden of demonstrating to this Court that the evidence is insufficient because a verdict of guilt removes the presumption of innocence and repl aces it

with a presumption of guilt. State v. Tu ggle , 639 S.W.2d 913, 9 14 (Tenn. 1982). When an accused challeng es the sufficiency

of the convicting evidence, the standard is whether, after reviewing the evidenc e in the ligh tmost favorable to the prosecution, any rational trier of fact could have found the e ssen tia l-5-

elementsof the cr

ime bey ond a rea sonable d

oubt. Ten n. R. App. P. 13(e); Jackson v. V irginia , 443 U.S. 307, 322- 25, 99 S. Ct. 2 781 (1979 ), 61 L . Ed. 2d 560 . On appe al, the sta te is e ntitle d to the stronge st legitimate view of

the evide nce and all reasonable inferences there from. Stat e v. Ca bbage
, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibi l ity of the witnesses, the weight and value to be given the evidence, a s well as all factual issues r aised by the evide nce, are resolvedby the trier of f

act, not this Court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This Court may not sub stitute its own inferences for those drawn by the trier of fact from circumstantial evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

The determination of identity is a question of fa ct for the jury to de

termine, after consideration of all the evidence. State v. Strickland , 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). Furthermore, the identity of an ac cused may be established by

either direct evidence, circumstantial evidence, or a combination of the two. State v. Thompson, 519 S.W.2d 789 , 79 3 (T enn . 19 75) . In the instant case, there was no direct evidence to establish the identity of the perpetrator. However,
a conviction may be ba sed entirely on c ircumstantial evidence when t he fact s are “‘ so clear

ly interwoven and connected that the finger of g uilt is pointed unerringly at the de fen d ant and the defendant alone.’” State v. Duncan , 698 S.W.2d 63, 67 (Tenn . 1985 ) (quo ting State v. Crawford
, 470 S.W.2d 610, 613 (1971)). There must be an evidentiary basis upon which the jury can “exclude
eve ryoth er reasonable theory or hypothesis except that of g uilt.” Pruitt v. Sta

te , 460 S.W.2d 385, 390 (1970). I

t is important to keep in mind, however, that “the standard for appellate re view is the same whether theconviction is based upon direct or circumstantial evidence.” State v. Vann , 976 S.W.2d 93, 111-12 (Tenn. 1998) (appendix).

Alth ough circumst

antial in n ature, w e conclu de that the e vidence taken asa whole is sufficient to support

the defe ndant’s c onvicti o n for ag grava ted robbe ry . Viewed

in the lig ht most favora ble to the state, the evidence in the instant case established the following facts. Two, masked, Caucasian men robbed the Unio n Bank a nd Trust in

Rickman a

t gun poin

t. One of the men f led in
a light blue Mercury

Cougar. The defendant’s girlfriend ow ned a light blue Mercury Cougar, identified by both bank tellers a s looking “exactly like” the car they saw fleeing the bank after the
ro bb er y. Two witnesses, Tammy Ar ney an d Vincen

t Bry ant, obse

rved the defenda nt driving his girl fr iend’s light blue Mercury Cougar on the day

of the robbery . A week after the robbery , the defendant passed a ten-dollar bill at a service station, which was later identified as part of the f ive hundreddollars in bait money that was stolen fr om the b ank. A fe w w ee ks af te r t he ro bb er y, Michael Moody saw the def endant with “a little blue bag” that was full of money . While driving past the bank sometime after the robbery , the defendant told Lonnie Greenwood that the bank was
a “pushover.” Finally , the defendant told Michael Hollerman that he had robbed a ban k and was afraid that the a uthoritie s were “ on to him.” This issue is without me

rit.

II. Ineffective Assistance of Counsel

The defenda

nt c onte nds th at he

rece ived inef fect ive a ssistance

of counse l at hi s tria

l. We begin by noting that the de

fendant’s trial counsel filed a motion to withdraw after the motion for

a new trial had been filed but before the trial court hea rd the motion. The trial cour t granted the motion to with draw an d appointe d new cou

nsel to re present the defe ndant in th

e hearing on his motion for a new trial and on appeal. At the defendant’s request, new counsel amended the motion for a new trial to include a claim of ineffe ctive as sistance

of counse

l. As this Cou

rt has pr eviously cautionedand the tr

ial cour t reiter ated to th is defendant, ineffective

assistance of counsel claims are best pursued in a post-conviction petition rather than on direct appeal. Ind eed, once the merits of-6-

the issue ar

e addre ssed by

this Court o n direct

appeal, the defe

ndant ma y not re visit the issue in a post-conviction petition. See State v. Anderson , 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992). The defendant expressly acknowledg es the admonitions of the trial court and this Cou rt but pro ceeds w ith his ineff ective a ssistance

of counse

l claim in th

is direct appeal.

The defendant argues that his trial counsel wa s ineffective because (1) she failed t o investig ate the menta

l illness of Lonni e Gree

nwood, a s tatewitness, and to impeach Mr. Greenwood
o n cross examination with information about such mental illness, (2) she failed to call Debb i e Mo od y, the defendant’s fo rm er gi rl fr ie nd , t o t es ti fy, (3) she failed to subpoena or call as witnesses various persons requested by the defendant, (4) she failed t o subpoena business records from the service station wh

ere the defenda nt alleg edly

passed ba it money, and (5) she refused thedefendant’s request to testify on his own behalf. Encompa ssed in the defendant’s arg ument c oncerning his ineffective assistance of counsel claim is a claim that the defendant was denied

his fundamental right to testify. Bec ause the analy sis for such a claim differs from an ineff ecti ve assistance of counsel cl ai m, we wi ll ad dr es s t ha t i ss ue se pa ra te ly.

A claim of ineffective assistance of counsel ra ised on direct appeal is a mixed question of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). Questions concerning the credibility of the witnesses, the weight and va lue to be give n testimony, and the factual issues raised by the evidence are to be resolved by the trial judge

. Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997). On appeal, we are bound by the trial court's findings of fact unless we conclude that the evidenc e in the record preponderates ag ainst those findings. Black v . State
, 794 S.W.2d 752, 755 (Ten n. Crim. App. 1990). The trial court's conclusions of law, however, are review ed de novo. Fields v. State
, 40 S.W.3d 450, 457-5 8 (Tenn. 2001). Thus, a trial court’s findings of fact are reviewed de novo witha presumption of

correc tness , whil e a tri al cou rt's conclusi ons of law are reviewed d

e novo wit

h no presumption of correctness.

In order to succeed on an ineffective assistance of counse l claim, the defendant must prove that the attorney’ s performance was deficient by showing that the advice given or services rendered fell below the range of competenc e demanded of attorney s in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In addition, the defendant must prove that he was prejudic ed by

his counsel’s deficient performance by showing that the result of the trial proceeding would have been different but for the attorney’s e

rror. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. E

d. 2d 674 ( 1984); Goad v. Sta te , 938 S.W.2d 363 , 369 (Tenn. 1 996). The burden is
on the defendant to prove both prongs of the test by clear and convincing

evidence. State v. Burns
, 6 S.W.3d 453, 461 n.5 (Tenn. 1999) (relying on State v. Anderson , 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992).

In reviewing counsel's conduct, a “fair assessment . . . requir es that every

effort b e made to eliminate the distor ti n g effects of hindsight, to reconstruct the circumstances of counsel’s challeng ed conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. C t. at 206 5. The fact t hat a p artic ular s trate gy or tactic failed or hurt the defense, does not, standing alon e, estab lish unreasonable representation as long as c hoices are informed ones based upon adequate preparation. Henley , 960 S.W.2d a t 579 (Ten

n. 1997); Hellard

v. State
, 629 S.W.2d 4, 9 (Tenn. 1982).

In the instant case, the defendant’s former counsel testified at the evidentiary hearing on the defendant’s motion for a new trial. She testified that she made every effort to s ubpoena every wi tness that the defendant requested but acknowledg ed that she was unable to locate som e of th e-7-

witnesse s. The t rial rec ord reve als that sh e advise d the def

endant th at she ha

d not been

able to subpoena severa l witnesse s who coul d be im portant to the defense. She inquired, on the record, whether the defendant wished to proceed with the trial on that day without such witnesses. The trial judge also ques tioned the defenda nt, on the record, about whether he understood what trial counsel
was saying a

nd w he ther he wished to proceed. The defenda nt indicated that he understood and consiste ntly responded that he wished to proceed with the trial without the witnesses. With respect to the defe

ndant’s a llegat ion that tr ial couns el refu sed his request to call De bbie Moody

as a witne ss, trial counsel t

estified that Ms. Moody appear

ed in the courtroom during the middle of the trial and said that she would hurt the defense if called as a witness. Trial counse l made a tactical decision not to call Ms. Moody based on he r belief that Ms. Moody’s testimony would notbe beneficial to the defens e. The def

endant w as not pre sent duri ng the c onversa tion between Ms. Mood

y a nd tr ia l counsel but was later informed by t rial cou nsel that M s. Moody

would not be testifying because her testimony would not help the defense.

After hearing all the evidence, including testimony by

the defendant, the trial court found that the defenda

nt had fa iled to prove that he was prejudiced by tr ial counsel’s alleged errors. We ag ree. Bareallegations are

insufficient to support proof of the claim. Indeed, when a n ineffective assistance of counsel c la im is predic ated upon counsel’s failure to present witnesses or introduce evidence, such witness’s testimony and evidence should be offered at

the evidentiary he aring in order for the trial court to d eter mine whether the failure to call a witness or introduce e vidence prejudiced the defenda nt. See Black v . State , 794 S.W.2d 752, 757 (Ten n. Crim. Ap

p. 1990). This defe

ndant did notpresent testimony by

Ms. Moody or a

ny of the other pe ople that he claims should have been called as witnesses to prove that their testimony would have helped the defense had they testified. The business records of the service station were not introduced to prove tha t they cont ained exculpatory information. The menta l health r ecords o f Mr. Greenwood, a lleged to have a lengthy history of serious mental illness, were not in tr od uc ed to sh ow wh at , i f a ny, effect they would have had on Mr. Greenwood’s credibility if they had bee

n used to impeach his trial testimony.

We concl ude th at the defend ant ha s not prove n by clear a nd con vinci ng evi dence that the outcome of his trial would have been differe nt but fo r the alle ged er rors mad e by trial cou nsel. Becau se the defendant must prove both that trial counse l’s performance was deficient and tha t he
wa s pr ejudiced by the de ficient performance in order to preva il on an ineffective assistance of counsel claim, we

need not r

each the question o f whethe

r trial c ounsel’sperfor

mance w as defic ient. Henley
, 960 S.W.2d a

t 580; Goad , 938 S.W.2d at 370. Accordingly, the trial court’s finding that

the defendant received effective assistance of counsel is affirmed.

III. Right

to Te stify Encompassedwithin the defendant’s allegation that he rec eived ineff ective assistance of counsel is the assertion that he was denied the right to testify

. Specifically, the de fendant alleges that he repe atedly

asked tr ial couns el to call

him as a witness and that after advising the defe ndant that it was not in his best interest to testify, trial counsel ref used to call the

defenda nt as a wit

ness. The defendant maintains that he never a cquiesc ed to his attorney’s request that he not testify and that the decision not to testify was the unilater al decision of his attorney

. We begin b y noting tha

t the Tenn

essee Su preme Court, in Momon v. Sta te , adopted a procedural safeguard to ensure that all future criminal defendants are aware of their right to testify and that they persona

lly waive that rig

ht. 18 S.W.3d 152, 157 (Ten n. 1999). Th is procedural-8-

require ment, however, was not a new constitutional rule that required re troactive ap plication. Id. at 162-63. T

he defe ndant ac knowledg es that the

procedu ral req uiremen t is, there fore, in applica

ble to this case because the

supreme court’s decision in Momon was filed after the defendant’s trial. The defenda nt, however, cites to Momon to “underscore the fundamental nature of [the right to testify].”

Tennessee courts have long recognized that a c riminal defendant has a f unda mental constitutional right to testify. Momon , 18 S.W.3d a t 157. Only

the defe ndant may

effec tuate a v alid waive r of this right. Id. at 161. In determining whe ther the defendant has personally wa ived th e right to testify , this Court

should “indulge eve ry rea sonable presumption against the waiver of a fun damental right.” Id. at 162. The waiver of a defendant’s r ight to testify will not be pr esume d from a silent record. Id. “In the absence of evidence to show that [a] defendant personally waived [the] right to testify, we

must presume that he did not.” State v. Simmons , No. M2000-01199-CCAR3-CD, 200 1 Te nn. Cri m. App . LEX IS 359 at * 6 (Tenn. Crim. App., at Nashville May 11, 2001).

In the instant case, the defendant’s trial counsel corrobor atedthat the d

efenda nt repea tedly told her, both beforeand during the tr ial, that h e wante d to testif

y. Sh e consist ently responded to the defenda

nt’s req uests by advising him agains t test ifying. However, she also testified that it was ultimately

the defendant’s decision whether to testify. Trial counsel infor med the defendant of the basis for her

advice n ot to test

ify. In her opinion, the defendant’s testimony would likely be impeached

with his pr

ior convi ctions; his t estimony would possibly open the door to questioning about other bad acts; and she observed that the defendant’s version of the events was not consistent withthat of other witnesses. Trial cou nsel testified that she “knew he should never testify” but maintained that the final decision not to testi fy was made

by t he defe ndant. Af ter bein g repe atedly advised that it was not in h is best inte

rest to te stify , the def

endant sa id “okay ” and followed his attorney’s a

dvice.

The defenda

nt deniesever ag

reeing with tria l counsel n ot to testify. According to the defenda nt, he reiterated his request to testify even after his trial counsel advised him against it. The defenda nt testified that he b elieved that it wa s his decision whether to testify but that trial counsel refused to call him as a witness. In the defendant’s words, “She wouldn’t put me up there.”

We conclude that the record does not preponderate against the trial cour t’s finding that the defendant persona lly waived his rig ht to testify. Although trial counse l strenuously advised the defendant not to testify on numerous occa sions, the ultimate dec isio n not to testify was the defenda nt’s. The defendant admitted that he knew that he had a right to testify and that he knew that the decision whether or not to testify was his to make. Furthermore, the record r eveals that the defendant was not afraid to insist upon a course of action different from that advised by his counse

l. He made the final decision not to request a change of venue against the strong a dvic e of his trial counsel. He also made the f in al decision to pursue an ineffective assistance of c ounsel claim on direct appeal against the strong advice of both the trial court and his appellate counsel. Based upon such information, the trial court was within its discretion to accredit trial counsel’s testimony on the issue and conclude that the defendant made the decision to wa iv e h is ri gh t t o t es ti fy. This issue is without me

rit.

IV. Admission of Testimony Concerning Uncharged Crimes

The defenda

nt next alle ges tha

t the tria l court erroneously

admitted testimony by

a state’s witness, Bonnie M o o dy, about a prior c riminal charge aga

inst the defendant, which had been-9-

dismissed. The criminal charge to which the defendant refers stemmed from an allegation that the defendant had inappropriate sexual relations with a minor, Jamie Moody. The state did notquestion Bonnie Moo dy, Jamie Moody ’s aunt, about the prior criminal charge dur ing direct examination. Defens e counsel, however , questioned her a bout the charge

on cross- examinatio n in order to show that Ms. Moody had a

bias against the defendant. Defe nse counsel did not go into the specifics of the charge but questioned Bonnie Moody about whether she had “hard feelings” for the defenda nt because of the prior

criminal charge. I

n response, the prosecution attempted to get into the specifics of the charg e during

re-direct examina

tion of Ms. Moody . We note, however , that the trial cou rt did not allow the state to question Ms. Moody about the details of the charge but instead immediate

ly interruptedthe prose cutor, a dmonished

him for as king the

question, and instr

ucted the jury not to consider the testimony about such c harge in their determination of the defe ndant’s guilt.

In Tennessee, evidence

that a criminal defendant has committed some other crime or bad act independent

of that for which he is charged is g enerally ina dmissible. Tenn. R. Evid. 404(b); State
v. Howell , 868 S.W.2d 238, 254 (Tenn. 1993). However, if evidence that a def endant has committed
an act separate and apart from the one f or which the defe ndant is on

trial is re levant to some material matter at issue i n the cas e on tria l and if itsprobativ e value i s not outwe ighed b y th

e dang er of its prejudicial effect, theevidenc e may be admitted. Tenn. R . Evid. 404 (b); Howell
, 868 S.W.2d at 254. Furthermore, because

of the ris k of unfa

ir prejudice to the defendant, Rule 404(b) establishes special procedures which must be followedbefore evidence of prior bad acts may be a

dmitted. See Tenn. R. Evid. 404(b), A dvisory Committee C omments. Whe n a trial c ourt subst

antially complies with the procedural requirements of the rule, its determination will not be over turned absent

an abuse of discretion. State v. D uBose , 953 S.W.2d 649, 652 (Tenn. 1997).

In the instant case, the trial court did not admit evidence of the prior criminal charge over the defendant’s obj ection. Therefore, the predicate procedural requirements for admission of such evidence were not applicable. I ndeed, it was the defendant who first introduced evidence of the fact that such a pr

ior char ge existe d in order

to show the

bias of Bonnie M oody . When the s tate attempted to question Ms. Moody about the specifics of the charge on re-d

irect, the defendant objected, and the trial court sustained the objection. Further attempts by the prosecution to elicit the
sameinformation were interrupted by the trial court ev en befor

e the def endant ha d the oppo

rtunity to object. In addition, the trial court g ave a curative instruction to the jury instructing them

to only consider the prior criminal charge in determining whether Ms. Mo ody had a bias a gainst the defenda nt. The only testimony

that Bonnie Moody g ave about the prior criminal charge after the trial court’s curat

ive instruction to the jury was that her pr evious testimony about the charg e was truthful and that she took the charge “ver y seriously .”

We conclude th at the trial court did not err with respect to the admission of testimony regarding the defendant’s prior criminal charg e. The de

fendant made a ta ctical decision to

question Bonnie Moody about the existence of the c harge in order to show her bias. He may not now chall enge the admission of that evidence on app eal. Furtherm ore, the trial cou rt did not a

dmit testimonyabout the

specific facts of the charge. I

n contrast, the trial court sustained two objections to the state’s attempt to elicit such testimony and gave a curative instruction to the jury . This issue is without me

rit.

V. Thirteenth Juror R ole

In the defendant’s motion for a new trial, the defendant asked the trial court to evaluate the-10-

sufficiency

of the evidence and the weight of the evidence f

rom the thi

rteenth juror sta ndpoint. The defendant contends that the trial court failed to perform its mandatory function as thirteenth juror. According to the defendant , the trial court should have re-weighed the evidence and set aside the jury’s verdict. The defendant claims that the trial court gave undue defe rence to the jury ’s resolution of factual conflicts and determinations of witness credibility

. Rule 33(f) of the Tennessee Rules of Criminal Procedure imposes upon a trial court judge the mandatory

duty to serve as the thirteenth juror in every criminal case. Tenn. R. Crim. P. 33(f); Statev. Carter
, 896 S.W.2d 119, 122 (Tenn. 1995). Approval by the tria l judge of the jury’s verdict
as the thirteenth juror is a necessary prereq uisite to the imposition of a valid judgment. Id. A trial
cou rt’s role as a thirteenth juror, however, is distinguishable from its role in eva lua ting th e sufficiency

of the evidence. I

n performing the duties of a thirtee nth juror , the tria

l court is concerned

about whethe r the ver dict is supp orted by the weig ht of the e

vidence present ed at tria l. Statev. Moats , 906 S.W.2d 431, 43 3-35 (Ten n. 1995). The trial court should independentlyreweigh t he evide nce and assess the credi

bility of the wit

nesses.
This Court may presume that the tria l court has performed its function as thirteenth juro r when the trial judge overrules a motion for new trial. Carter , 896 S.W.2d at 122. However, if the record refle cts that the trial court was dissatisfied with or disagreed with the jury ’s verdict or the weight of the evidence, made sta tements indicating

that t he trial cou

rt misunde

rstood its responsi bility or author ity to act as thirteenth juror, or absolved itself of the responsibility of acting as thirteenth juror, this presumption does not apply , and this Court must grant a new trial. Moats
, 906 S.W.2d at 434-36.

In the instant case, the trial court, at the hearing on the motion for n ew trial, made the following comments: It was a cir

cumstanti al case

and it w as a cas e that had to be put together with every stra

nd of circumstance and it went to the jury on a question of whether or

not the State had proven bey ond a reaso nable doubtand the j uryso found. And this court is of the opinion that there is sufficient

evidence to support

that verdict and their evidence
was believable. This court has no reason to set aside fro m th e thirteen th juror sta

ndpoint eit her or s ufficiency or credibility of the witnesse s.
Some of the witness were suspect. Hollerm an was in prison and made some statements that were attributed to thedefendant and also was cro ss examined about wha

t might ha

ppen to him

. Greenwood

was in cus tody and testified that he pled g uilty and he
was te st if yi ng to [make a deal] and was testifying to the truth. Whether it was [the truth] or not was a question for the j ury to determine. (Emphasis added.)

Becau se the trial

court is obligated to make its owndetermin ation concerning the cre dibility of the witne sses, the

defenda nt argu es that the

trial cou rt’s stat ement that “it w as f

or the jur y to determine” the truthfulness of the suspect witne s s is illustrative of its failure to fulfill the role of thirteen th juror. We disagree. This Court’s interpretation of the trial court’s findings is that the trial court was addressing both the de fendant ’s insuff

icient ev idence c laim and h

is thirtee nth juror claim.-11-

Some of the sta

tements w ere relevant to the suff ic iency an alysis and some wer e relevant to the thirteen th juror an aly sis. However, it is clear from the trial court’s statement that “this court has no
reason to setaside from the thirteenth juror stand point eithe r or [t he] su ffic ienc y [ of the

evidence ]” that the trial court recognized

that there was a difference. Additionally , the finding that the evidence “was believa

ble” dem onstrate s that the t

rial cou rt indepe ndently weighed the evide nce as a thirteen th juror. Th us, we co nclude th at the tri al court properl y f ulfilled its role asthe thirteenth juro r. This issue is without meri

t.

CONCLUSION

We conclude that the defendant has failed

to prove that he received ineffective assistance of counsel nor does the record preponderate against the t

ria l court’s finding that the defendant personal ly

waived h is right t o testify . Furthe

rmore, our revie

w of the r ecord do es not supp ort t

h e defendant’s allegations that the trial court erroneously admitted evidence of an uncharg ed crime or failedto perform its function as thirteenth juror. Finally , the ev idence i s su fficient to identify the defendant as the perpetrator of the charg ed offense of agg ravated robbery . Conseq ue ntly, the judgment of the trial court is affirmed.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE