IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 16, 2020

STATE OF TENNESSEE v. GARY DEWAYNE GLASGOW

Appeal from the Criminal Court for Hamblen County

No. 17CR556 Alex E. Pearson, Judge

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No. E2020-00196-CCA-R3-CD

___________________________________

The Appellant, Gary Dewayne Glasgow, was convicted in the Hamblen County Criminal 

Court of aggravated assault, a Class C felony, and was sentenced to eight years in 

confinement. On appeal, the Appellant contends that the trial court committed plain error 

by ruling he could not introduce the victim’s prior inconsistent statement into evidence and 

that the trial court erred by using an out-of-state conviction to enhance his sentencing range. 

Based upon the record and the parties’ briefs, we find no reversible error and affirm the 

judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.

Jonathan M. Holcomb (on appeal and at trial), Morristown, Tennessee, for the appellant, 

Gary Dewayne Glasgow.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant 

Attorney General; Dan E. Armstrong, District Attorney General; and Connie Trobaugh, 

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

OPINION

I. Factual Background

This case relates to the Appellant’s beating Jeremy Reed on October 28, 2017. In 

May 2018, the Hamblen County Grand Jury indicted the Appellant for aggravated assault 

causing serious bodily injury.

12/29/2021
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At trial, Sherry Laursen testified that she owned Bud’s Sports Bar on North White 

Pine Road in Hamblen County.1 On the night of October 28, 2017, the bar hosted a 

Halloween costume party. The Appellant attended the party dressed as a pirate and

consumed alcohol. Angie Reed attended the party with the Appellant. The victim brought 

Miranda Tolliver and Ms. Tolliver’s mother to the party. The victim was not wearing a 

costume and did not drink alcohol. Ms. Laursen knew the Appellant previously from his 

“coming in the bar.” She also knew Ms. Reed, Ms. Tolliver, and Ms. Tolliver’s mother, 

but she did not know the victim.

Ms. Laursen testified that Ms. Reed and Ms. Tolliver were “calling each other 

names” and that they were “going back and forth all night long with it, all night long. 

Neither one would shut up.” Ms. Laursen asked Ms. Tolliver “to please shut her mouth, to 

knock it off,” and Ms. Tolliver “did so.” The victim left the bar for a few hours and was 

not involved in the argument. Later, the victim returned to the bar to pick up Ms. Tolliver 

and her mother. The incident between the Appellant and the victim occurred outside at

11:00 or 11:30 p.m., and Ms. Laursen provided a video of the incident to the police.

The State played the video for the jury. The video showed that Ms. Tolliver exited 

the bar first and that she was followed by the victim, who was followed by Appellant. As 

the victim exited the bar, he held the door open for the Appellant with his right hand. The 

victim walked between two vehicles parked in front of the bar, and the Appellant continued 

following him. The Appellant said something to the victim. The victim turned around and 

faced the Appellant, and the Appellant told the victim something to the effect of, “I’m 

about to f*ck you up. You know that, right?” The Appellant immediately punched the 

victim’s face and continued punching him. Ms. Tolliver began yelling at the Appellant 

and told him to stop. Ms. Laursen came outside, and Ms. Tolliver told Ms. Laursen, “He 

f*cking just knocked him out, Sherry.” 

Ms. Laursen testified that she did not see what happened between the Appellant and 

the victim but that she saw the victim “getting up off the ground” and “bleeding so bad.” 

On cross-examination, Ms. Laursen testified that the Appellant had never been in an 

altercation at the bar prior to October 28 and that he was “a nice enough guy.”

Kimberly Samples testified that in October 2017, she worked at Bud’s Sports Bar 

as a bartender. Ms. Samples was not working on the night of October 28 but was in the 

bar “with the rest of the crew, partying for the Halloween costume contest.” Ms. Samples 

was serving “shots” from a bucket she was carrying. The victim was there with Miranda 

 

1 According to the statement of the case in the Appellant’s brief, a bench trial was held. However, 

the record clearly reflects a jury trial.
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Tolliver and Tolliver’s mother, but he was not drinking alcohol. The Appellant was at the 

bar with Angie Reed. Ms. Samples knew the Appellant but did not know the victim.

Ms. Samples testified that Ms. Tolliver and Ms. Reed were “arguing back and 

forth.” Ms. Samples went to Ms. Tolliver and asked her to stop arguing, and Ms. Tolliver 

and Ms. Reed did not say anything else to each other. The victim left the bar but came 

back inside later to pick up Ms. Tolliver and her mother. Ms. Samples saw the victim and 

Ms. Tolliver exit the bar. She did not see anything that occurred outside but heard Ms. 

Tolliver’s mother and the Appellant “screaming and yelling” at each other.

On cross-examination, Ms. Samples testified that during the party, the Appellant 

told her “to put [Ms. Tolliver] in check before he beat [Ms. Tolliver’s] and [the victim’s] 

ass.” After the incident outside, Ms. Samples went outside and picked up the victim’s 

glasses. She said she had never seen the Appellant act in an aggressive manner prior to 

October 28. 

Miranda Tolliver testified that she was thirty-six years old and that the victim was 

“a life-long friend.” Ms. Tolliver knew the Appellant from Bud’s Sports Bar and used to 

babysit his daughter. On the night of October 28, 2017, Ms. Tolliver was at the Halloween 

party dressed as a vampire. The victim drove Ms. Tolliver and her mother to the party. He 

stayed for “a little bit,” left the bar, and returned later to pick up the two women. The 

Appellant was at the bar with Angie Reed, and Ms. Tolliver and Ms. Reed began arguing. 

The victim was not involved in the argument and never said anything to Ms. Reed.

Ms. Tolliver testified that when the victim returned to the bar to pick up her and her 

mother, the three of the them walked outside. Ms. Tolliver heard the victim “hit the truck.” 

She turned around and saw the Appellant hitting the victim. She said that the Appellant 

hit the victim “several” times and that the victim was “like bouncing off the truck.” After 

the incident, the Appellant told Ms. Tolliver, “‘It should have been you.’”

Ms. Tolliver testified that the victim’s nose and mouth were bleeding and that his 

face immediately began to swell. Ms. Tolliver drove the victim to her home and “laid him 

down.” One of the victim’s eyes was swollen shut, but the victim kept saying he was okay. 

The victim’s face “didn’t look right” and “was kind of warped.” Ms. Tolliver said that she 

was “scared to death” all night and that she kept checking on him. The next day, the victim 

drove to his mother’s house, and his mother immediately took him to a hospital in Newport. 

Medical personnel sent the victim “straight to UT” by ambulance. The victim had surgery 

to repair his eye sockets and rebuild his cheeks. His jaw was wired shut, and he had to 

have “a plate put into his skull where it was concaved.” The victim was in intensive care 

for four days, spent eleven or twelve days in the hospital, and experienced a lot of pain. 

Ms. Tolliver said that before the incident, the victim was “passionate” about his job in 
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welding, was respectful, and was happy. After the incident, he did not care about his job, 

was scared and paranoid, and carried a gun. The State asked if the victim carried a gun 

prior to the incident, and Ms. Tolliver answered, “He did, but not like he does now.” She 

said the victim used to keep his gun in his vehicle.

On cross-examination, Ms. Tolliver testified that she recently gave a statement to 

law enforcement but that she did not remember saying the Appellant hit the victim from 

behind as soon as they exited the bar. Ms. Tolliver explained, “I don’t know if he hit him 

or not for sure, but I know that when I turned around, he did hit him. Like he grabbed 

him.” Ms. Tolliver said that prior to this incident, the victim usually carried a gun in the 

lockbox of his truck. The victim’s gun was in the lockbox on the night of October 28. On 

redirect-examination, Ms. Tolliver testified that the victim did not do anything to provoke 

the Appellant and that the victim did not say anything to the Appellant or Ms. Reed.

Melissa Ratcliff, Miranda Tolliver’s mother, testified that she had known the victim 

more than fifteen years and that he and Ms. Tolliver were friends. On the night of October 

28, 2017, Ms. Ratcliff went to a party at Bud’s Sports Bar with Ms. Tolliver and the victim. 

Ms. Ratcliff knew the Appellant from the bar and had known him about four years. The 

Appellant was there with Angie Reed, and Ms. Reed and Ms. Tolliver got into “[a] little 

bicker back and forth.” Sherry Laursen asked Ms. Tolliver to stop arguing, and Ms. 

Tolliver did so.

Ms. Ratcliff testified that at some point, the victim left the bar and was gone for 

three to four hours. He returned to pick up Ms. Tolliver and Ms. Ratcliff, and he stayed in 

the bar thirty to forty-five minutes. As the three of them were leaving, Ms. Ratcliff heard 

“a scuffle or some noise” and heard someone screaming at Ms. Tolliver. Ms. Ratcliff ran 

outside and saw the victim on the ground. Ms. Tolliver and Ms. Ratcliff took the victim to 

Ms. Ratcliff’s house, and he stayed there all night. The victim’s face was swollen and 

blood was coming out of his nose, but he did not want to go to a hospital. Ms. Ratcliff said 

she did not hear the victim say anything to Ms. Reed or the Appellant that night.

On cross-examination, Ms. Ratcliff acknowledged giving a statement to an 

investigator in June 2019 but said she did not remember telling him that “some words were 

exchanged” between Ms. Reed and the victim. She acknowledged that she used to work 

at Bud’s Sports Bar, that the Appellant would come into the bar, and that he never caused 

any problems.

Lieutenant David Cribley of the Hamblen County Sheriff’s Department (HCSD) 

testified that about 9:15 p.m. on October 29, 2017, he spoke with Miranda Tolliver on the 

telephone. The victim was being transported to University of Tennessee (UT) Hospital. 
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Ms. Tolliver gave Lieutenant Cribley information about the incident at Bud’s Sports Bar, 

and Lieutenant Cribley filed a report.

The victim testified that at the time of trial, he was thirty-seven years old and 

weighed about one hundred thirty pounds. In October 2017, he weighed about one hundred 

sixty pounds. On the night of October 28, the victim went to a Halloween party with 

Miranda Tolliver and her mother. The victim described Angie Reed as a “[f]amily friend” 

but said he did not know the Appellant. The victim did not say anything to the Appellant

at the party.

The victim testified that he left the party but returned later to pick up Ms. Tolliver 

and her mother. As they were leaving, Ms. Tolliver walked out the door first, followed by 

the victim. The victim said that he did not remember leaving the bar but that the video 

showed he was “jumped, hit from behind, 15, 20 times.” After the incident, the victim

went home with Ms. Tolliver and her mother. He stayed there all night and awoke about 

2:00 p.m. the next day. 

The victim testified that he drove to his mother’s house and that she took him to the 

emergency room. The victim was transported to UT Hospital by ambulance. He said that 

his skull was “indentioned about eight to ten millimeters,” that the left and right sides of 

his jaw were broken, and that he had four or five surgeries in four or five days. The victim’s 

mouth was wired shut for four to six weeks, and he was mostly on a liquid diet during that 

time. The victim lost weight and did not gain it back because he had “a high metabolism.” 

After the wire was removed from the victim’s jaw, the victim went to several doctor 

appointments and had one in-patient surgery. He said that he used to work ten to twelve 

hours per day, seven days per week, as a self-employed welder and pipefitter but that he 

no longer worked much.

On cross-examination, the victim testified that he was not carrying a gun on his 

person on the night of October 28 and that he did not leave the bar to get a gun out of his 

truck. The victim acknowledged meeting with the State on “Monday of last week.” At 

first, the victim said he never stated during the meeting that he left the bar and got a gun 

out of his truck. The victim later admitted making the statement. He said, though, that he 

suffered from permanent brain damage and memory loss, that he did not remember making 

the statement, and that he did not remember going outside to get a gun. The Appellant 

acknowledged that he had a gun in his truck during the party. Defense counsel asked, “Did 

you get the gun and bring it into the bar?” The victim responded, “I can’t say that’s true 

or not. No, I don’t know that. It’s illegal to have a gun in the State of Tennessee, you 

know, in a bar.”
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Linda Askew, the victim’s mother, testified that she took the victim to the hospital 

in Newport and that “they sent him straight down to UT to trauma.” The victim told his 

mother that he had been “attacked.”

Sergeant Jim Brooks of the HCSD testified that he was assigned to investigate this 

case on October 30, 2017, and that he spoke with Miranda Tolliver. The next day, Sergeant 

Brooks obtained a warrant for the Appellant’s arrest. After the police arrested the 

Appellant, Sergeant Brooks obtained video from Bud’s Sports Bar. He attempted to speak 

with the victim, but he could not understand the victim because the victim’s jaw was wired 

shut.

Deputy Joselyn Perez of the HCSD testified that she helped arrest the Appellant and 

that her body camera recorded his arrest. The State played the video for the jury. On crossexamination, Deputy Perez acknowledged that the Appellant did not resist arrest and that 

he was “pleasant.” At the conclusion of Deputy Perez’s testimony, the State rested its case.

Shelly McKee testified that she worked for Bud’s Sports Bar in October 2017, that 

she worked at the bar from 1:00 to 7:00 p.m. on October 28, and that she stayed past her 

shift for the party. The Appellant was there with Angie Reed, and the victim was there 

with Miranda Tolliver and Ms. Tolliver’s mother. At some point, the victim left. Ms. 

McKee said that there was “argument back and forth between the women” and that the 

Appellant told Sherry Laursen that the “constant bickering . . . needed to stop.” The 

Appellant did not threaten anyone.

Ms. McKee testified that the victim returned to the bar to pick up Ms. Tolliver and 

Ms. Tolliver’s mother. As the three of them were leaving, “Miranda yelled a nasty word 

at Angie and out the door they went.” Ms. McKee then saw the Appellant “get up and 

leave the bar.” Ms. McKee did not see what occurred outside. On cross-examination, Ms. 

McKee testified that she did not hear the victim say anything to the Appellant and that she 

did not think the victim consumed any alcohol.

Greg Reed testified that on the night of October 28, 2017, he went to the Halloween 

party at Bud’s Sports Bar with his wife and daughter. His sister, Angie Reed, also was 

there. Mr. Reed said Miranda Tolliver “kept hollering” at his sister and was calling his 

sister “a whore, a slut, you know, just yelling out.” Mr. Reed’s wife told an employee, 

“‘You need to take care of this.’” However, nothing was done, and the situation “just kept 

on escalating.” 

Mr. Reed testified that he and the victim were “distant kin” and that he saw the 

victim and Ms. Tolliver go outside. They were gone ten or fifteen minutes and came back 

inside. Mr. Reed did not see them go outside a second time. However, Mr. Reed went 
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outside after “everything had done happened” and saw the victim “laid over here to my

right.” Ms. Tolliver told the Appellant, “You go . . . back inside to the whore you was 

with.” Mr. Reed walked up to Ms. Tolliver and told her, “‘Watch who you calling a 

whore.’” Ms. Tolliver “shoved” Mr. Reed, and Sherry Laursen told Mr. Reed not to hit 

Ms. Tolliver. Mr. Reed said he did not try to hit Ms. Tolliver, that he was never aggressive 

toward anyone, and that he never saw the Appellant hit or threaten anyone. 

On cross-examination, Mr. Reed testified that he saw the victim lying on the ground. 

Mr. Reed did not hear the victim say anything to the Appellant that night but heard the 

victim say “a few remarks” to Mr. Reed’s sister. 

Angie Reed testified that she and the Appellant went on a date to the Halloween

party at Bud’s Sports Bar. She said that as soon as they walked into the bar, “certain people 

started attacking us.” She stated that by “certain people,” she meant Miranda Tolliver and 

the people “going along with her.” Ms. Reed said that the situation “just kept on escalating”

and that the Appellant went to Sherry Laursen several times and asked her to do something

about Ms. Tolliver. Ms. Reed’s brother, Greg, also asked Ms. Tolliver to calm down. Ms. 

Reed said that as she and the Appellant started to leave, Ms. Tolliver and the victim were 

leaving and said “some . . . profanity and things.” Specifically, Ms. Tolliver told Ms. Reed 

that she was going to “beat [Ms. Reed’s] ass.” Ms. Tolliver also screamed, “Whore.” The 

victim then looked at the Appellant and said, “‘And I’m going to whoop your big ass, too.’” 

The Appellant walked outside, but Ms. Reed stayed inside and did not see what happened 

to the victim. She did not see the Appellant act aggressively toward the victim. 

On cross-examination, Ms. Reed testified that she did not know Ms. Tolliver and 

had never seen Ms. Tolliver prior to October 28, 2017. At one point that night, Ms. Reed

turned around and asked Ms. Tolliver, “‘Who are you? I don’t even know you.’” Ms. 

Reed denied cursing at Ms. Tolliver and said she “ignored” Ms. Tolliver. Ms. Reed said 

that she could hear the victim “in the background, calling me whore and stuff like that.”

The Appellant testified that he and Angie Reed went to the party and that he ordered 

beer. Soon after they arrived, Miranda Tolliver “started in on” Ms. Reed. The Appellant 

knew Ms. Tolliver and told her to “calm down.” Ms. Tolliver told him, “‘Get your f-ing 

whore out of here.’” The Appellant talked to Sherry Laursen three or four times and asked 

her to “please do something about this.” However, Ms. Laursen did not do anything, so 

the Appellant walked over to the victim and said, “‘Hey, can you get your girl under 

control? This is getting ugly.’” The victim “basically” responded, “Go [f*ck] yourself.”

The Appellant testified that about 10:00 p.m., he and Ms. Reed decided to leave. 

Ms. Tolliver and the victim also were leaving and went outside ahead of them. Ms. Tolliver 

told Ms. Reed that she was “going to whoop [Ms. Reed’s] ass,” and the victim told the 
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Appellant, “‘I’ll whoop your ass, too.’” The Appellant followed the victim outside and 

told him, “‘You know I’m about to whoop your ass, right[?]’” The Appellant testified, “I 

waited until he turned around and went to reach for something, and I grabbed ahold of 

him.” The Appellant thought he hit the victim only three times but said the video showed 

him hitting the victim eleven times. The Appellant explained that he “had a lot of adrenalin 

going” because he “was worried [the victim] had a gun [in] his pocket.” After the 

Appellant hit the victim, he told the victim, “‘Good night, Bud[.]’” The Appellant “set” 

the victim on the ground and walked away. The Appellant testified that he hit the victim 

because he “felt threatened” and that “I wasn’t going to walk out that door and let 

somebody take a shot at me.” The police did not ask the Appellant for his side of the story 

before they arrested him. 

On cross-examination, the Appellant testified that he weighed two hundred ninety 

pounds on October 28, 2017. He said many people told him that night that the victim 

carried a gun. However, two of those people had “passed away” and were unable to come 

to trial. The Appellant acknowledged that as he and Ms. Reed were leaving the bar, the 

victim held the door for him. The State asked, “If he was going to shoot you, would he 

[have] held the door for you?” The Appellant answered, “He threatened to whoop my ass 

when he walked by.”

The Appellant acknowledged that according to the video, Ms. Tolliver asked him 

why he hit the victim, and he told Ms. Tolliver that “it was her f-ing mouth.” He also 

acknowledged telling the police that he hit the victim two times and that the victim got 

what he deserved. The Appellant did not mention a gun to the police. The Appellant 

admitted having a 2000 conviction in Colorado for possession of marijuana and a 2009 

conviction in Colorado for possession of a Schedule II, controlled substance. 

At the conclusion of the proof, the jury convicted the Appellant of aggravated 

assault as charged in the indictment. After a sentencing hearing, the trial court ordered that 

he serve eight years in confinement as a Range II, multiple offender.

II. Analysis

A. Prior Inconsistent Statement

The Appellant contends that the trial court committed plain error by ruling he could 

not introduce the victim’s prior inconsistent statement into evidence. The State argues that 

the trial court did not err because the victim admitted making the statement. We conclude 

that the Appellant is not entitled to plain error relief.
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During defense counsel’s cross-examination of the victim, defense counsel asked if 

the victim was carrying a gun on his person on the night of the party and if the victim left 

the bar to get a gun out of his vehicle. The victim answered both questions in the negative. 

Defense counsel asked if the victim remembered meeting with the State on “Monday of 

last week,” and the victim said yes. Defense counsel then asked the victim, “And do you 

recall telling them that you had a gun in your vehicle at Bud’s Bar and when you saw things 

were getting wild, I believe is what you said, you went and got a gun out of your truck?” 

The Appellant answered, “I never said nothing like that. I never said nothing about no 

gun.” 

Defense counsel requested that the parties approach the bench and advised the trial 

court that he wanted to play a video of the victim’s statement to the State as a prior 

inconsistent statement. The State responded that defense counsel could not play the 

“whole” statement, and defense counsel agreed to play “that one part.” The trial court sent 

the jury out of the courtroom and reviewed Tennessee Rule of Evidence 613. Meanwhile,

defense counsel prepared the video. The State told the trial court, “Judge under (B), I think 

I have to have the opportunity to ask him about it first.” Defense counsel responded, “I 

don’t mind her asking about it either as long as the truth comes out.” The trial court asked 

defense counsel, “So . . . do we want to play this thing [for] him so he can see it while the 

jury is out and see if he acknowledges it, that he’s going to acknowledge it in front of the 

jury?” Defense counsel answered that he thought the prior statement was “admissible for 

the jury to see it.” Nevertheless, the trial court had defense counsel play the victim’s prior 

statement for the victim outside of the jury’s presence. The following colloquy then 

occurred:

[The State]: Jeremy, did you see the video?

THE WITNESS: Yes, ma’am.

[The State]: Do you remember now telling me and Detective Brooks 

that you did go to the truck and get the gun?

THE WITNESS: I don’t remember that, no, but I did see that on the 

-- like I told you, my short-term memory, my memory because of the 

permanent brain damage is done.

[The State]: Okay. Do you -- do you remember after watching that, 

do you agree that you did tell us that?

THE WITNESS: I do agree, yes, after seeing that, yes, I do. But my 

permanent damage, you know what I mean. My short-term memory is gone.
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[The State]: Okay. All right. Thank you.

The trial court advised defense counsel, “I’ll allow you to ask him again about that when 

he comes back out, and pursuant -- we’ll follow pursuant to the rule.”

When the jury returned to the courtroom, defense counsel resumed his crossexamination of the victim. The following exchange occurred:

Q . . . . On the night of October 28th, when you arrived at Bud’s, 

did you have a gun in your vehicle?

A In my vehicle, yes.

Q And then when you saw or you felt things were getting out of 

hand, you went out and retrieved the gun, did you not?

A To the best of my recollection, I don’t -- well, as I saw on the 

video I said that, but my memory is out there. I don’t remember -- everything 

is hearsay, but I did state to the detective that that was what happened, but 

my memory is, you know, short-term is gone.

Q Mr. Reed, are you denying that you went out and got the gun 

out of your car and brought it back in to Bud’s with you?

A No, I’m not denying it, but I don’t remember doing all that. To 

the best of my knowledge I don’t remember doing that. Everything is 

hearsay. I mean, I did see on the video, but I don’t remember doing all that, 

no, I don’t.

Q You agree with me that when you met with the detective and 

the State of Tennessee, you told them that you had a gun in your vehicle 

when you arrived at Bud’s?

A Yes.

Q And when you saw that things were getting out of hand, you 

went out to your vehicle and retrieved the firearm and brought it back into 

Bud’s?

A Yes, on the video, yes, I’ve seen that.
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. . . .

Q Well, where did that statement come from?

A [J]ust on hearsay and everything else. The other witnesses that 

I pieced together.

. . . .

Q And that’s what you believe to be true?

A What, that I -- that everybody else’s statements that I pieced 

together over two years[?]

Q That you retrieved . . . the gun out of your vehicle and brought 

it back into Bud’s?

A I can’t say that’s true or not. No, I don’t know that. It’s illegal 

to have a gun in the State of Tennessee, you know, in a bar.

At that point, defense counsel requested to admit the prior statement into evidence, and the 

State objected because the victim admitted making the statement. The trial court agreed 

with the State, saying, “I think that he did what was required of the rule by saying that he 

did make that statement, he just didn’t know if that statement was true or not.”

Tennessee Rule of Evidence 613 allows the use of prior inconsistent statements to 

impeach a witness. Specifically, Tennessee Rule of Evidence 613(b) provides that 

“[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless 

and until the witness is afforded an opportunity to explain or deny the same and the opposite 

party is afforded an opportunity to interrogate the witness thereon, or the interests of justice 

otherwise require.” If a party presents a prior inconsistent statement to the witness, the 

witness “has several possible responses: the witness can admit, deny, or not remember 

making all or part of the statement.” Neil P. Cohen et al., Tennessee Law of Evidence § 

6.13[5][a] (6th ed. 2011). If the witness admits making the prior inconsistent statement, 

extrinsic proof of the statement would be cumulative and, therefore, inadmissible. Id. If 

the witnesses denies or does not remember making the inconsistent statement, extrinsic 

proof of the statement is admissible. “[I]t is well-established that trial courts have broad 

discretion in determining the admissibility of evidence, and their rulings will not be 

reversed absent an abuse of discretion.” State v. Stinnett, 958 S.W.2d 329, 331 (Tenn.

1997).
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The Appellant claims that he is entitled to plain error relief on this issue but does 

not explain why plain error review is necessary. The State notes, “Presumably the 

[Appellant] contends that this issue requires plain error review because his motion for new 

trial was not timely filed.”

A motion for new trial must be made in writing or reduced to writing within thirty 

days of the “date the order of sentence is entered.” Tenn. R. Crim. P. 33(b). This provision 

is mandatory, and the time for the filing cannot be extended. Tenn. R. Crim. P. 45(b); State 

v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). “If a motion for new trial is not timely filed, 

all [the appellant’s] issues are deemed waived except for sufficiency of evidence and 

sentencing.” State v. Bough, 152 S.W.3d 453, 460 (Tenn. 2004) (citing Tenn. R. App. P. 

3(e)). Moreover, the untimely filing of a motion for new trial does not toll the time for 

filing a notice of appeal. Therefore, an untimely motion for new trial often will also result 

in an untimely notice of appeal. State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App. 

1987).

The trial court sentenced the Appellant on December 16, 2019, and entered the 

judgment of conviction that same day. The Appellant filed his motion for new trial thirtyone days later on January 16, 2020. As a result, his notice of appeal, which he filed on 

February 3, 2020, also was untimely. In the interests of justice, we have decided to waive 

the timely filing of the notice of appeal in this case.

Because the Appellant late-filed his motion for new trial, we can only review this

issue for plain error. An error rises to the level of plain error when all five of the following 

factors are met:

a) the record must clearly establish what occurred in the trial court; b) a clear 

and unequivocal rule of law must have been breached; c) a substantial right 

of the accused must have been adversely affected; d) the accused did not 

waive the issue for tactical reasons; and e) consideration of the error is 

“necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); 

see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for 

determining plain error). Furthermore, the “plain error must be of such a great magnitude 

that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal 

quotation marks and citation omitted).

Turning to the issue, defense counsel confronted the victim with his prior statement

by asking him, “And do you recall telling [the State last Monday] that you had a gun in 
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your vehicle at Bud’s Bar and when you saw things were getting wild, I believe is what 

you said, you went and got a gun out of your truck?” The victim unequivocally denied 

making the statement, saying, “I never said nothing like that. I never said nothing about 

no gun.” At that point, the prior statement was admissible to impeach the victim pursuant 

to Tennessee Rule of Evidence 613(b), and defense counsel should have been allowed to 

play the prior statement for the victim in front of the jury. Defense counsel then could have 

given him the opportunity to explain the prior statement, or the State could have asked him 

to explain the statement on redirect-examination. See Neil P. Cohen et al., Tennessee Law 

of Evidence, § 6.13[5][b] (6th ed. 2011). 

Although the Appellant did not get to play the victim’s prior statement for the victim 

in front of the jury, we conclude that the Appellant is not entitled to plain error relief. 

Before the jury left the courtroom, defense counsel read the victim’s prior statement to him, 

and the victim adamantly denied making the statement. When the jury returned to the 

courtroom, the jurors learned from the victim that his prior statement had been played for 

him. The victim then admitted several times in front of the jury that he told the State he 

went out to his truck and got his gun, and he explained that he did not remember making 

the statement because he suffered from memory loss. Therefore, we think defense counsel 

effectively impeached the victim and that a substantial right of the accused was not

adversely affected. 

Moreover, the Appellant testified that many people told him the victim was carrying 

a gun that night. He also testified that he hit the victim because he thought the victim had 

a gun in the victim’s pocket and because he thought the victim was going to shoot him. 

The trial court instructed the jury on self-defense. The video, though, shows that Tolliver 

and the victim were leaving the bar just prior to the incident and that the Appellant followed 

them outside. The video does not show anything amiss between the victim and the 

Appellant as they exited the bar, and the victim even held the door open for the Appellant. 

As Tolliver and the victim walked away from the bar, the Appellant followed them and 

said something to the victim. The victim turned around and faced the Appellant. The 

Appellant, who was noticeably larger than the victim, told the victim that he was “about to

f*ck you up” and began punching the victim’s face.2 After the attack, the Appellant told 

the victim, “‘Good night, Bud.’” The Appellant did not tell the police that he repeatedly 

hit the victim because he thought the victim had a gun or because he thought the victim 

was going to shoot him. Instead, he told the police that he hit the victim only two times 

and that the victim got what he deserved. Accordingly, we also conclude that consideration 

of the error is not necessary to do substantial justice.

 

2 At sentencing, the trial court stated that the video showed the Appellant “pulverize[ing]” the 

victim and that “we need to take into consideration the size difference.”
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B. Sentencing

 The Appellant claims that the trial court erred by using an out-of-state conviction to 

enhance his sentencing range because there was “no indication” he was represented by 

counsel at the time of his guilty plea for the prior conviction.3 The State argues that the 

trial court properly sentenced the Appellant. We agree with the State.

Before trial, the State filed a Notice of Intent to Seek Enhanced Punishment. In the 

notice, the State claimed that the Appellant qualified as a Range II, multiple offender based 

on his two prior Colorado convictions. For the first conviction, the Appellant was 

convicted in August 2000 of possession of marijuana and received a six-year sentence. For 

the second conviction, the Appellant was convicted in June 2009 of possession of a 

Schedule II, controlled substance and received a three-year sentence. 

At the Appellant’s sentencing hearing, the State noted that it asked the Appellant 

about the convictions at trial and that he “admitted to both of those.” Defense counsel 

responded that for the 2000 conviction, the State failed to show a valid conviction. Defense 

counsel explained,

That is all of the documents attempting to establish that he has a valid 

conviction in that case. There [are] several places for Mr. Glasgow to waive 

his right to an attorney. It claims that an attorney was -- explained things to 

him, all the things that go on with all the waivers we always do but, if you 

will notice, Mr. Glasgow did not in fact have an attorney. And both places 

where defense counsel could would sign off is bare. 

The trial court reviewed the certified copy of the 2000 judgment of conviction and the 

certified copies of documents submitted with the judgment. The trial court stated that 

according to the judgment, Christopher Calbo represented the Appellant. Therefore, the 

trial court determined that it could consider the prior conviction to determine the 

Appellant’s range of punishment. At the conclusion of the hearing, the trial court found 

that the Appellant qualified as a Range II, multiple offender and sentenced him to eight 

years in confinement.

Relevant to this case, a trial court may sentence a defendant as a multiple offender

if the court finds beyond a reasonable doubt that the defendant has received “[a] minimum 

of two (2) but not more than four (4) prior felony convictions within the conviction class, 

 

3 The Appellant asserts that this issue also must be reviewed for plain error. However, as noted by 

the State, sentencing issues are reviewable notwithstanding an untimely motion for new trial. See State v. 

Baugh, 152 S.W.3d 453, 460 (Tenn. 2004).
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a higher class, or within the next two (2) lower felony classes[.]” Tenn. Code Ann. § 40-

35-106(a)(1), (c). “Prior convictions include convictions under the laws of any other state, 

government or country that, if committed in this state, would have constituted an offense 

cognizable by the laws of this state.” Tenn. Code Ann. § 40-35-106(b)(5).

The original or certified copy of the court record of any prior felony 

conviction, bearing the same name as that by which the defendant is charged 

in the primary offense, is prima facie evidence that the defendant named in 

the record is the same as the defendant before the court, and is prima facie 

evidence of the facts set out in the record.

Tenn. Code Ann. § 40-35-202. Moreover, “reliable hearsay including, but not limited to, 

certified copies of convictions or documents, may be admitted if the opposing party is 

accorded a fair opportunity to rebut any hearsay evidence so admitted.” Tenn. Code Ann. 

§ 40-35-209(b). 

A defendant found to be a multiple offender “shall receive a sentence within Range 

II.” Tenn. Code Ann. § 40-35-106(c). The burden is on the State to establish a defendant’s 

sentencing status. State v. Jones, 901 S.W.2d 393, 397 (Tenn. Crim. App. 1995). This 

court reviews the range of a sentence imposed by the trial court under an abuse of discretion 

standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 

2012).

In Baldasar v. Illinois, 446 U.S. 222 (1980), a majority of the United States Supreme 

Court held that a prior uncounseled misdemeanor conviction could not be used to enhance 

a subsequent misdemeanor conviction into a felony. Relying on Baldasar, this court held 

in State v. O’Brien, 666 S.W.2d 484, 485 (Tenn. Crim. App. 1984), that a prior conviction 

of driving under the influence (DUI) could not be used to enhance the punishment for a 

subsequent DUI conviction unless the record of the first conviction affirmatively 

demonstrated that the defendant was either represented by counsel or waived his right to 

counsel. After O’Brien, though, the United States Supreme Court overruled Baldasar in 

Nichols v. United States, 511 U.S. 738, 748-49 (1994). Nevertheless, the Supreme Court

reaffirmed in Nichols that an uncounseled conviction could not be used to enhance 

punishment for a subsequent conviction unless, under Scott v. Illinois, 440 U.S. 367 (1979), 

no prison term was imposed for the uncounseled conviction or the defendant waived his 

right to counsel. Nichols, 511 U.S. at 748-49.

In support of his argument that the trial court erred by using his 2000 conviction to 

enhance his range of punishment, the Appellant cites State v. Fusco, 404 S.W.3d 504 

(Tenn. Crim. App. 2012). In that case, the defendant claimed, as the Appellant claims in 

this case, that the trial court erred by using his prior out-of-state convictions to enhance his 
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range of punishment because the State did not show that he was represented by counsel at 

the time of the prior convictions. Fusco, 404 S.W.3d at 531. The Fusco court addressed 

the issue as plain error because the defendant failed to raise it in the trial court and reviewed 

the relevant line of cases, including Baldasar, O’Brien, and Nichols. Id. at 532-36. 

However, this court concluded that plain error relief was not warranted because the 

“precise” issue presented by the defendant, i.e., whether the rationale of Baldasar and 

O’Brien applied to convictions used for range-determination purposes, was not clear; 

therefore, no clear and unequivocal rule of law was breached. Id. at 535. 

Regardless of the state of the law on the issue, this case is distinguishable from those

previous cases. Here, the 2000 judgment of conviction and the documents submitted with 

the judgment reflect that the Appellant was represented by counsel. Specifically, the 

judgment of conviction and the sentencing order for the conviction, both of which were 

signed by the trial judge, provide that the Appellant was represented by Christopher Calbo. 

Moreover, on the acknowledgment of rights form, signed by the Appellant, the Appellant 

initialed the line that stated, “I have fully discussed my case with my attorney, including 

the rights referred to in paragraph five (5) above. I am satisfied with the representation and 

advised provided to me by my attorney.” He also initialed the next line that stated, “After 

consulting with my attorney I have chosen to enter (a) plea(s) of guilty[.]” Although the 

line for defense counsel’s signature is blank on an acknowledgement of rights form and on 

an addendum to the form, the record does not support the Appellant’s claim that there is 

“no indication” he was represented by counsel. To the contrary, the record affirmatively 

shows that he was represented by counsel. Therefore, we conclude that the trial court did 

not abuse its discretion by sentencing the Appellant as a Range II, multiple offender.

III. Conclusion

Based upon the record and the parties’ briefs, we find no reversible error and affirm 

the judgment of the trial court.

_________________________________

NORMA MCGEE OGLE, JUDGE