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

Briefs M arch 12, 2002 STATE OF TENNESSEE v. ROBERT S. CLARK Appeal from the Criminal Court for Shelby County Nos. 99-06263, 99-06264 W. Otis Higgs, Jr., Judge

No. W2001-00921-CCA-R3-CD - Filed August 5, 2002

The defenda

nt, Robert S. Clark, was convicted of two counts of robbery . The trial court imposed concurrent

four-ye ar sentences. I

n this appeal of right, the defendant as ser ts that there was prosecutorial misconduct during voir dire and that the trial court erred by excluding ce

rtain expert testimony. Beca

use there is no reversible error, the judgments of the trial court are affirmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and A LAN E. G LENN , JJ., joined.
Jefferson D. Gilder, Southaven, Mississippi (on appea l), and L eslie Ba llin and Gr

ay Bartle tt, Memphis, Tennessee (at trial), for the appellant, Robert S. Clark.
Paul G. Summers, Attorney Genera l & Repor ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; and Greg G

illuly and Bet sy

Carnesale, Assistant

District A

ttorney s Gener

al, for th e appell ee, State of Tennessee.
OPINION
On November 20, 1998, a robber carry ing a police scanner entered a Union Planters Bank branchlocated in the Jitney Premier g rocery store in Cordova, Tennessee. At the teller counter, he announc ed that he

had a gun in his poc

ket and de

manded th at a bag

he was c arry

ing be f illed with mo ne y. The tellers complied. The police were aler ted by a silent a larm just as the robber left. After a photograph of therobber made fro m the bank ’s secur ity v ideotape appear ed in the local newspaper, police received an anony

mous tip identifying the defe ndant as the robber. Later, bank tellers Salee m Samana and Joshua Marino identified the defendant from a photogr aphic lineup.-2- I
Ini ti al ly, the defendant contends that the trial court erred by excluding the proffered expert testimonyof William Beard en, who ha

d analy zed and dig

itized the s ecurity

vi de ot ap e o f t he ro bb er y. The state argues that because B earden was not qualified as an expert and b ecause hi s testimony would not have substantially assisted the jury , the trial court properly excluded the evidence.
Ge ne ra ll y, the admission of expert testimony is largely entrusted to the sound discretion of the trial cou

rt. State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993). The trial court's decision may be overtur

ned on ap peal only upon a sho wing tha

t the tria l court a bused its d

is cretio n. Id. "[A]n appella te court should find an abuse of discretion when it appears that a trial cou rt applied an incorrect legal s tandard , or rea

ched a d ecis ion which is against logic or reasoning tha t caused an injusti ce to the part y complaining." State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997).
After the state restedits proof in chief, the defense called William Bearde n as an expert on film and videotape. When, however, an objection was lodg ed by the state, the tr ial court disallowed the testimony, holding that the defense had an obligation to notify the state of its intention to present th e w it ne ss an d t ha t t he pr op os ed te st im on y wo ul d n ot be of as si st an ce to th e j ur y: Now, as I understand it in this case there ’s a serious q uestion a bout the qu ality of the video. There’ s a serious questio n as to whe ther . . . t he perso n in the vid

eo is, indeed, the defendant. . . . [W]e have a dmitt ed that video tape into evidence. . . . [T]he weight and

credibility of

the evidence in the record [are] something for the jury to determine. Both of you will be allowed to ar gue that the person in the

video is or is not the defendant. The jury

will make that final determination, andthe video speaks for itself. I’m not going

to al lo w a n e xp er t w it ne ss no w, to da y, in the middle of the trial to come forward . . . . And I ’m not sure it’s rele vant to br ing this k ind of per son in relative to the quality of the videotape. I mean, the

jury itself ca n determ in e from w hat we have in evidence that there’s no clear, distinctive features on the person in the video. They ’ll have to make a determination as to whether or not it’s really the defendant . . . .
Afterw ards, in a hearing out of the presenc e of the jury, B earden testified that he obtained a degree in education from the Univer sity of Memphis and that after

graduating, he was employ ed b y a film lab oratory

where h e was a f ilm editor and timer . He stated that he b egan h is o wn vide o production company in 1988 and ha d “editedliterally . . . thousands of hours of finished programs.” According to Bearden, he had digitized the security videotap e of the r

obbery onto the hard drive of his edit system and

then printed individual frames that heedited with Adobe Photo Shop software: “I would take it in and clean it up as I could, de -interlace the video image, shar pen it a little b it, maybe make it monochrome . . . and just try to make it the bes t it could b e . . . .” Bearden acknowl edged

that he ha

d never b efore t

estified as an expe

rt witnes s.-3-

The admissibility o f expert te stimony is gover ned by Rules 702 a

nd 703 of th

e Tennessee Rule s of E vidence. McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257 (Tenn. 1997). Rule 702 address es the ne ed for e

xpert testi mony

and the qu alifica

tions of the

expert:
If scientif ic, tech nical, or other specializ ed knowl edge will subst antially assist the trier of

fact to understand the evidence or to deter mine a fa ct in issue , a witnes s qualif ied as an expert by knowledg e, skill, experience, training, or education may testify in the form of an opinion or othe rwise.
Tenn. R. Evid. 702. Its counterpart, Rule 703, focuse s on th e r el ia bi li ty o f e xp er t o pi ni on te st im on y:

The facts or

data in the particular case upon which an expert bases an opinion or inferencemay

be those perceived by

or made known to the expert at or before the hearin g. If of

a ty pe reas onably

relied u pon by experts in t

he parti cular f

ield in forming opinions or

infere nces upo n the subject, the fac ts or data need not be admissible

in evidence. The court shall disallow testimony in the form

of an opinion or infer ence if the under

lying fact s or data

indicate lack of t rustwort hiness.
Tenn. R. Evid. 703.
In McDaniel v. CSX Trans portation, Inc. , our supreme court concluded that to determine "the standardof admissibility of scientific evidence requires an analy sis of the u nique languag e found in Rules 702 and 703 of

the Tennessee Rules of Evidence." 955 S.W.2d at 264. Our high court observed that Rule 7 02 requir

es that the

evidenc e "subst

antially assi st the tri er of fact," while the federal rule re quires on

ly that the e vidence "assist the trier of fa ct." Id. The court concluded that the probative force of expert

testimonymust be str

onger in this stat

e's courts than

under the federa l rules. Id. Rule 703 pr

ovides tha

t trial courts " 'shall disallow testimony in the form of an opinion or inferenceif the underl ying facts or data indi cate a lack of tru stworthi ness.'" Id. (quoting Tenn. R. Evid. 703). Even if expert testimony tends to provide substantial assistance to the jury, the testimony is admissible only if it is based upon reliable fa cts or data. State v. Shuck , 953 S.W.2d 662, 668 (Tenn. 1997).
Re ce nt ly, in S tate v. Stevens , ___ S.W.3d ___, No. M1999-02067-SC-DDT-DD (Tenn. 2002), our supreme court approved the application of McDaniel to no ns ci en ti fi c e xp er t t es ti mo ny. The court observed that “nonscientific tes ti mo ny must still meet the stringent requirements of relevance and reliability. . . . [N]othing in the languag e of Rules 702 and703 sugg ests that s cientifi c testimonyshould be treated any differe ntly than exper

t opinions b ased on technical or nonsci entific specialized knowledge.” Id. , slip op. at 12-13. In determining whe ther to admit the testimony of a proffe red no nscie ntifi c exp ert, t rial c ourts may consi der th e foll owing: (1) the McDaniel fac tors, when they a re reasonable measures of the r eliability of experttestimony; (2) the expert’s qualifications for testifying on the

subject at issue; and (3) the s traigh

tforwar d connection between the expe rt’s know ledge a

nd the bas is-4-

for the opinion such that no “analytica l gap” exists between the data and the opinion offered.
Id. at 15.
Ini ti al ly, the defense did not identify Beard en, discl ose its inte

nt to call h

imas a witness, or provide the state

with copie s of his security video stills until mid-way through the trial. The state, of cours e, wou ld have been entitled to Bearden’s stills had it made an appr opriate request after initiation of discovery

by the defe

ndant. See Tenn. R. Crim. P. 16(b)(1)(B). The record, however, does not conta

in any motions or o

rders pe rtaining to discovery a

nd this court cannot, therefore, discern what discovery

information the defense may have been obliged to provide or when it should have been made available. Furthe rmore, the defendant asserts that he could not have ide ntified Bearden earlier because the state did not timely provide an acceptable copy of the security vide o for him to digitize and edit. The record reflects that the state produced two copies of the video to the defense sometime prior to trial, but that both copies were defective. The stat e did not produce an a ccepta ble copy until jury

selection began. Any

delay in disclosure of

the witness, und er thes e circumstances, cannot be blamed on the defe nse. Ad di ti on al ly, Bearden

appears to be qualified as an expert in the field of video production. He testified, among other things, that he owns his own video production company a nd that he has edited thousandsof hours o f videota pe. While he has no form al education in the field, he demonstratedsubstantial knowledge, skill, and experience. See Tenn. R. Evid. 702. It is irrelevant that Bearden was not present during the robbery . The state argued at trial that Beard en’s vide o stills were inadmissib le beca

use Bea rden cou ld not “authenticate [them] because he can’t say whether

that photograph

fairly and a

ccurately depicts the robber, because he wasn’t there .” The videotape from wh ich Bearden extracted the stills had already been properly

authenticated and entered into evidence. His testimo ny w ould have needed only to explain h

is alterations and

their und erly ing proc esses in order to support

a finding

by t he trier of fact that the st

ills were what he claimed them to be. See Tenn. R. Evid. 901(a) (“The requirement of authentication . . . is satisfied by e vidence sufficient to the court to support a finding by the trier of fact that the

matter in question is what its proponent claims.”). In our view, the trial court sho ul d n ot ha ve su mm ar il y ex cl ud ed Be ar de n’ s t es ti mo ny. The state didnot claim prejudice by the delay in identify

ing Bearden as a witness. Exclusion of the expertwas the harshest remedy available to the trial court. A more appropriate mea sure would have been to offer the state a continuance so a s to allow time for preparation and response.
Alth ough there was error, it is our view that the proffered testimony would not have been of substantial assistance to the jury. During its case in chief, the state introduced the orig inal videotape and 18 still frames. While the still frames are not high quality , they are relatively cle ar

and provide some detail . By

comparison, the edited still frames produced by Bearden are actua

lly blurrier and provide fewer d

etails. T here is n o indicat

ion that the

jury would hav e benef

itted, sub stantiall

y or otherwise, by the

introduction of Bearden’s testimony or his still frames. SeeTenn. R. Evid. 702; see also Tenn. R. App. P. 36(b) (“A final judgment

. . . shall not be set aside unless, considering the whole record , error invo lvin g a

substantial right more probably than not affected the judgment . . .-5-

.”). Additionally, it was Be arden’s opinion that the individual depicted in the video and stills was not the defendant. After examining the record, this cour t has been unable to find any logica l basis for the opinion. See Tenn. R. Evid. 703. In sum, while Bearde n’s testimon y a nd the edi ted still frames s hould hav e been a dmitted, th

eir quality w ould not ha

ve made a

differe nce in the result.
II Next, the defe

ndant ass erts that

the trial court er red by admitting

the se cu ri ty videotape of the robbery . He cont

ends that a proper chain of custody was not e stablishe d and that no witness authenticated the tape.
As a conditi on precedent to the introduc tion of tangible evidence , a witnes s must be able t o identify the evidenceor establish an unbrokenchain of custody. State v. Goodman , 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982). The purpose of the chain of custody require ment is to " demonstr

ate that there has been no tamp ering, loss, substit ution, or m istake wit h respect to t he evidence." State v. Braden , 867 S.W.2d 7 50, 759 (Tenn. Crim. App. 1993 ). Whil e th e state isnot requi red to establish fact s whic h exclude e

very possibility

of tampe ring, th e circu mstance s establis hed must reasona bly assure the identity of

the evidence and its integrity

. State v. Ferguson , 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987). This rule does not requireabsolute certainty of identification. Ritter v. State , 3 Tenn. Crim. App. 372, 462 S.W.2d 247, 250 (Tenn. Crim. App. 1970). Absent sufficient proof of the chain of custody , however, the "ev idence s hould not be

admitted . . . unless b oth identit y and integr ity c an be de

monstrated by

other ap propria te means." Neil P. Cohenet al., Tennessee Law of Evidence § 9.01[13][c] ( 4th ed. 20 00). A le ading T ennesse e treati se provid es as follows:
The concept of a "chai n" of c ustody recog nizes that real evidence may be handledby more than one pe rson be tw een the t

ime it is obta

ined and t he time it is either introduced into evidence or su bj ec te d t o s ci en ti fi c a na lys is . O bv io us ly, any of these persons might have the opportunity to tamper with, confuse, misplace, damage, s ubstitut e, lose and replace, or otherwise alter the evidence or to observe another doin g so. Each person who has custody or control of the evidence during thi s tim e is a "link" in thechain of custody. G enerally, te stimonyfrom ea ch link is needed to verify the authenti city of the evidenc e and to show that it is what it purports to be. Eachlink in the chain testifies about when, where, and how possession or control of the evidence was obtained ; its condit ion upon re

ceipt; where the item was kept; how it was safeguard

ed, if at all; any cha

n ges in its condition during possession; and when, where and how it left the witness's possession.
Id. The issue addresses itself to thesound discretion of the trial court; its determination will not be disturbed in the abse nce of a clearly mistaken exercise of such discretion. State v. Beech , 744 S.W.2d 585, 587 ( Tenn. Crim. App. 198 7); State v. Johnson , 673 S.W.2d 87 7, 881 (Ten n. Crim. App. 1984). Reasonable assurance, rather than absolute assurance, is the prerequisite for admission.-6-

He re, the trial court did not abuse its discretion by a dmitting the security videota p e of th e ro bb er y. Deputy

Joe Everso n of the She

lby County Sheriff’s Department testified that the tape was recovered f

rom the Union Planters “security man,” Blake Gerald. The deputy stated that he then used sheriff’s department equipment to make copies of the video and print a varie ty o f still shotsof the robber. According to Deputy Everson, the videotape then remained secured in the evidence room until he checked

it out for trial. Because Blake Gerald did not testify, the c hain of custody for

the videotape is not tech

nically complete . Additiona

lly, there wa s some con

fusion in Deputy Ever son’s testimonyin that at one point he affirmed that “[t]his is the video tape that I picked up fr om the FBI Evidence Room and delivered into this Memphis Police Department Evidence Room.” Any failure in the chain of custody

was, however, remedied by the testimony of Saleem Samana and Joshua Mari no, the teller-victims, who confirmed that the videotape fairly and accurately

depicted the ro bb er y. See

Tenn. R. E

vid. 901(b )(1); Stat e v. William s , 913 S.W.2d 462, 465 (Tenn. 1996) (holding that robb ery

victim pro

perly authenticated still photographs printed from security camera videotapes).
III Next, the defendant complains of prosecutorial misconduct du rin g v oi r d ir e. Sp ec if

ic al ly, he argues that the prosecutor attempted to e rode the defendant’s presumption of innocence.
In Judge v. St

ate , 539 S.W.2d 3 40, 344 (Tenn. Crim. App. 1976 ), this court established five factors to be considered

in determining whether allege d instances of prosecutorial misconduct might have af fected the verd ict to the p

rejudic e of the d

efenda nt: (1) the condu ct compla

ined of vi ewed in c onte xt and in light of the facts and circumst ances of the case ; (2) the c urative measure s underta

ken by the cour t and the p

rosecut ion; (3) the in tent of the

prosecu tor in making the im

proper s tatement ; (4) the cumulative effect of the improper conduct a

nd any other er rors in the record; and (5) the relative strength or wea kness of the case.
The defenda

nt’s comp laints relate to two separate comments by the state. First, the assistant district a ttorney gener al gave the prosp ective ju

rors the following

“civicslesson:” And once the crime is committed – I’m just g oing to give y ou a little civics le sson before we get started, be fore I beg

in asking general questions. When the crime is committed someone is generally arrested, and after that they have a right to present their ca se to what’s called the Grand Jury. Does any

one know what a Grand Jury is? * * * It’s basically a g

roup of citizens like yourself who ar e called to gether

from all aroundour community, and they listen to the [s]tate. We prese nt some evidence and-7-

they determine wh ether there’s probable cause that a cr ime’s committed, and whether or not the defendant is the one who committed the crime.
At that point, defense counsel objected and requested a new jury pane

l. The trial judge sustained the objection. Instead of g

ranting a new panel, he g ave the following curative instruction: Alright , ladies and gentlemen, you can disregard the [p]rosecutor’s statement about the civics lesson. And remember during this process the lawy ers aregoing

to ask y ou some que stions, and what the y sa y isnot nece ssarily

the law of

the fac ts. They simply ask ques tions ba sed on the ir conce pt of wha t this case

is all about. You take

the law pr

operly from this [c]ourt. So just disregard that statement about a civics lesson. Subseque ntly , the pros ecutor a sked the f ollowing question o f the pro spective jurors:
Does anyone think that just because the defendant pled not

guilty he’s obviously

not gu il ty? He has that cons titutional right to have a ju ry trial, wouldyou

agree with me there? Again, defense

counsel o

bjected and the tr

ial cour t sustaine d the obje ction and in structe d the potentia l jurors a s follows:
Ladies and gentlemen, please disreg ardthe past question that you were asked by t he pr os ec ut or . D is re ga rd th e q ue st io n i n i ts en ti re ty.
In our view, the prosecutor ’s com ments during voir dire do not warrant rever sal. The statemen ts were general in nature

and any pre

judice resulting therefrom would have been mini mal. The tria l court ins tructed

the jury to disregard the statements and to accept instructions on the law only from the court. Moreover, there is no indication that the prosecutor was acting with the intent to provoke unfair bias among the potential jurors or to otherwise impede the defense.
IV
Fi na ll y, the defendant raises a series of evi dentiary issues. He initially complains that the tr ial court erroneously

permitted Deputy Joe Everson to testify that investigators had f oun d finger prints at the scene but were unable to make any identification from the prints. He asserts that the deputy

had not been trained in fing erprintsand did not ha ve any fir sthand knowledge of the identification process. Thedeputy, who was pr esent at the crime scene, testified that he observed crime scene officers lift several fing erprints. Over a defense objectio n, he wasalso per mitted to testify that police “we

re not able to identify a

nyone based on pr

ints.”-8-

Ge ne ra ll y, hearsa

y evidence

is inadmissible. Tenn. R. Evid. 802 . Hears ay is "a sta tement, other tha n one made

by t he decla rant whil e testify

ing at th e trial or hearing , offer

ed in evid ence to prove the truth of the matter asserted." Tenn. R. Evid. 801(c). In ou r view, th e trial c ourt prop erly permitted Deputy Ever son to testify that fingerprint evidence was recovered at the scene. The depu ty was present

when the crime scene was investiga ted and personally

observed the fingerprints being lif ted. His t estimony

that the f

ingerp rints fai led to ide

ntify a suspec t qualified as inadm issible he ar sa y, however, and should have been excluded. Deputy Everson h ad not been trained in finger print ing, suggesting tha t hi s information regarding the re sults of any analy sis came from someone else. Nevertheless, t he fingerprint

evidence was of no assistance to police and did not implicate the defendant. Accordingly , the error was harmless. See Tenn. R. App. P. 36(b) (“A final judgment . . . shall n ot be set a side unle ss, considering the whole record, error involving a substantial right more probably tha

n not affected thejudgmen t . . . .”); State v. Edwards , 868 S.W.2d 682 (Tenn. Crim. App. 1993).
Si mi la rl y, the defe

ndant ass erts t

hat the t rial cou

rt erre d by

permittin g Deput

y Ev erson to testify that a third teller, who was present during t he robbe ry but who did

not testif y a t trial, c ould notidentify any

one as the robber. Defense co unsel elici ted the c ontested testimony

during crossex am in at io n o f t he de pu ty:

Q You didn’t talk to her, take a statement from her? A S omeone took a sta tement fr om - one of

the other

office rs tha t responded to the scene. Personally I did not take a statement from her

. * * * Q Did

any other of

ficer show this female b a nk employee a similar photospread? A It is very well possible tha

t she migh

t have se en one, but she would not[be] us e[d ] for i dentification purposes because during her statement she stated sh e w ou ld n’ t b e a bl e t o i de nt if y an ybo dy.
At that point, defense counsel requested a bench c onfere

nce and objecte d on the g

rounds tha

t Deputy Everson’s answer was non-responsive. The tria l court ins tructed

defense counsel to ask the question a second time and, in response, the deputy responded that he did not know whether any other officers had showed the third teller a photospread.
Ini ti al ly, defense counsel did not object on hearsay grounds. Adefendant

may not object on one ground in the trial court and then assert a new or d ifferent theory on appeal. See State v. Adkisson , 899 S.W.2d 626, 634-35 (Tenn. Cr im. App. 19 94). While

Deputy Everson’s comment that the teller could not identify a nyone was he arsay, any err or i n its admiss ion was ha rmless. See Tenn. R. App. P. 36(b). In our view, the testimony did more harm

than good for the state. That a t el le r w as un ab le to id en ti fy t he de fe nd an t t en de d t o s up po rt th e d ef en se th eo ry. Fi na ll y, the defendant

contendsthat the tr

ial cour t erred by p ermitting

Deputy Everson to testify that police investigated Crime Stoppers leads implicating persons ot her than the defendant-9-

and ruled them out as suspects. The first testimony r egarding Crime Stoppers occurr e d durin g De pu ty E ve rs on ’s di re ct te st im on y:

Q And as a r

esult of th at did y

ou rece ive any Crime Stopp er tips? A Yes, we did. Q Did y ou investi gate th e Crime Sto

pper tips ? A Yes. Q And was [the defendant] identified as an individual who committed th e r ob be ry? A In one of the Cr

ime Stoppe

r tips, y es. When defense counselobjected, the state responded that the testimony was being offered to show how the defendant became a suspect in the investig ation, not for the truth of the matter asserted. Defens e coun sel re quest ed a cur ative inst ructi on and the tr ial co urt gav e the fo llow ing:

Ladies and gentlemen, the testimony that you’ve

just heard is not offered for the truthfulness, the t

ruth of th at testimony. I t’s only offered to establish that an identification was made, not the truthfulness of it but that an ID was made. . . . In other words, somebody called him and gave him information. The mere fact that it was given does not mean that it’s true. . . . During cross-e

xamination, defense

counsel elicited the following testimony from Deputy Eve

rson: Q That

was one o f three

Crime Stopp ers tip s ide ntify ing possi ble suspects out of the newspaper? A I b elie ve I

had f our – four othe r tipsothe r tha n [the defe ndan t]. Q Okay. And y

ou had people calling identify ing a Ronnie Cain as the person. You had people calling identify ing a man named Larr

y Shea as the pe

rson whose picture was in the paper. A Yes, sir, uh-huh. Q And if there’s another name given I ’m notaware. Do you remember any other na

me? A I don’t re member it was on a Cr

ime Stoppe

r tip, I believe I g ot a co nt ac t f ro m a We st Me mp hi s o ff ic er , h e c al le d m e d ir ec tl y. On re-direct, the state questioned Deputy Everson regarding the outc ome of the other C rime Stoppers tips: Q The Crime Stoppers tip s that implicated other people [–] did you investig ate those

Crime Stopp ers tips? A Yes, sir. Q And did y

ou rule those out? A Yes, sir.-10-

The trial court sustaineddefense counsel’ s objectio n that the deputy ’s statem

ents were “conclusory . . . and involve[d] hearsay.”
In our view, the statements at issue do not constitute hearsay . Th e deputy testified that he investigated

other Crime Stoppers tips and, a s a resul t, “rule [d] them out.”He did not testify as to any out-of- court sta

tements. Nor was histestimony necessa rily grounded in hearsay . For example, the deputy

might ha

ve ruled out the other Cr

ime Stoppers tips based on physical evidenc e. Ad di ti on al ly, the tr

ial court sustained the defendant’s objection at trial. Bec ause defense counsel failed to seek a curative instruction, the issue has been waived. SeeTenn. R. A pp. P. 36(a

); State v. Jones , 733 S.W.2d 517, 522 (Tenn. Crim. App. 1987) (holding that “failure to request [a] curative instr uctio n[]” is failur

e to take action “ reasona bly availab le to prevent or

nullify the harmful ef

fect of an error”). Accordingly , the judgments of the trial court are affir med.

___________________________________ GARY R. WADE, PRESIDING JUDGE