### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs N ove m be r 14, 200 7
STA TE OF TEN NES SEE v. RO BER T L. YA TES

Direc t Appeal from the Circ uit Court for Warre n Coun ty No. F -10328 Larry B. Stanley, Jr., Judge

No. M2006- 02278-CCA -R3-C D - F iled Jun e 6, 2008

The de fenda

nt, Robert L . Yates, w as convic ted of a ggravated robbe ry , a Class B f elony , and wa s sentenc ed as a

Rang e I I I , persistent off ender to t h i rty y ear s in the Tennesse e De partment of Correc tion. On appeal, he argues t hat t he trial court erre d in overr uling his m otion to suppress and in allowing into evide nce a photo identification. After car eful revie w, we aff irm the judgme nt from the trial cour

t. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed
J O HN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the cour t, in which D AVI D H. W EL L ES a nd J ER R Y L. S MI TH , J J ., joined.
Bud Shar p, McMinnville, Tennesse e (on appea l), and Tr acy Caten, McMinnville, Tenne ssee ( at tr ia l) , f or the a pp e lla nt, Rob e rt L . Y a te s. Robert E. Cooper, Jr., Attorney Ge nera l and Reporter ; Cameron L . Hy der, A ssistant Attorney Gene ral; L isa Z avog iannis, District Attorney Gene ral; and Thoma s J . Miner, Assistant Di strict Attorney Gene ral, for

the appe llee, State of Te nnessee
.

OP IN ION

T h e d efendant wa s convicted of ag g ravated robbe ry

and sente nced to thirty

y ear s in the Tenne ssee De partment of Correc tion. On appeal, he argues t hat t he trial c ourt err ed in over ruling his moti on to suppress and in admitting a photo identification into evidence

. The subjec t of the motion to suppress was an inc riminating statement made by the def endant to police offic ers in which he acknow ledg ed involvement in the crime. The office r testified that he did not init iate the c onversation with the defenda n t but did not dis coura g e him from talking . The defe ndant told the office rs t hat he boug ht methamphetamine f rom the store c lerk a

nd that the store
c l e r k s a i d t h a t$ 5 0 0

. 0 0 h a d

b e e n t a k e n
. T h e d e f

e n d a n tf u rt h e r t o l d t h e o f f i c e r s t h a t“ t h e re wa s a whole lot more than that taken, about $1,500.00 a nd one ounce of meth.”-2-

The de fenda

nt testified that the officer init iated a c onversation with him by asking how the criminal ca se was g oing and asking him a bout the money that was taken. The de fenda nt asserte d that t h e o ffice r lied. He said that he told the off icer about the store c lerk selling meth so the offic ers c ou ld “ g e t he r. ” Th e de fe nd a nt t e sti fi e d th a t he pr e vio us ly ple d g uil ty wh e n he wa s g uil ty a nd sa id that he did not commit the underlying c rime. He acknow ledg ed that he had four prior felony forg ery and thef t convictions.
The court overr

uled the def

endant’ s motion t o suppress and he ld that the office r’s testimony
was c redible. The court stated on t he re cord that the office r had a lway s been truthf ul with the court in the past and that he appea red to be telling the tr

uth.
An a ly sis
The defe ndant conc edes that he made the statement he soug ht to suppress but contends that it should have bee n suppressed be cause it violated his Miranda ri gh t s
. Hi s argument rests on wheth e r th e o f f ic e r initiated their conve rsation. Howe ver, the defe ndant has not off ere d any evidenc e that the offic er did a

ny thing to elicit the statement from him. The findings of fac t made by

the trial
c o u rt at th e h e a r in g o n a mo ti o n to s u p p r e s s a r e b in d in g u

p o n th is c o u rt u n le s s the evidenc e contained in the record preponder ates ag ainst them. State v. Ross, 49 S .W.3d 833, 839 (Tenn. 2001). T h e trial court, as the trier of fa ct, is able to asse ss the cre dibilit y of the witnesse s, determine the weig ht and value to be aff orde d t h e ev i d ence , and re solve any conflicts in the evide nce. State v. Od om, 92 8 S. W.2 d 1 8, 23 (T e nn . 1 99 6) . The pr e va ili ng pa rt y is en tit le d to the str on g e st l e g iti ma te view of the evidenc e and a ll reasona ble infer ence s d ra wn fr o m t h at evidence. State v. Hic ks, 55 S.W .3d 515 , 5 2 1 (Tenn. 2001) . The de fenda nt has the burde n of establishing that the evidenc e contained in the r ecor d prep o n d erates ag ainst the finding s of fa ct made by the trial cour

t. Bra ziel v. State, 529 S.W .2d 501, 506 (Tenn. Crim. App. 1975)

. Her e, the de fenda

nt has not met his burden of demonstrating that the evidenc e pre ponderates a g a ins t th e fi nd ing s o f f

a c t ma de by

the tr ia l court

. Th e re fo re , he is not e nti tle d to any re lie f o n th is issue.

Ne xt, th e de fe nd a nt a rgue s th a t the tr ia l court e rr e d in adm itt inga ph oto ide nti fi c a tio n in to evidenc e. The State asks this court to waive the issue bec ause the defe ndant fa iled to object to the introduction of the evide nce pr ior to trial and duringtrial. The State r efe rs to Tenne s s ee R u le of Appellate Proc edure 36(a) to support the position t hat the issue wa s wa i v ed fo r fa ilure to make a contempora

neous objec tion. W e ag ree that the defe ndant failed to take nec essar y action to pre vent the potential har

mful eff ect of the er ror.-3- Conclusion

Ba sed on the for eg oing a nd the re cord a s a whole, w e af fi rm t h e judgment from the tr ial
c ourt

.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE