FILED

May 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE 

 FEBRUARY 1997 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) No. 03C01-9606-CC-00242

 )

) Washington County

v. ) 

) Honorable Arden L. Hill, Judge 

)

ROBERT HARRISON BLEVINS, ) (Burglary and vandalism of property valued

) under $500)

Appellant. )

For the Appellant: For the Appellee:

David F. Bautista Charles W. Burson

District Public Defender Attorney General of Tennessee

 and and

Debbie Huskins Sandy R. Copous

Assistant District Public Defender Assistant Attorney General of Tennessee 

142 East Market St. 450 James Robertson Parkway

Johnson City, TN 37601 Nashville, TN 37243-0493

(AT TRIAL)

David E. Crockett

Laura Rule Hendricks District Attorney General

606 W. Main Street Route 19, Box 99

P.O. Box 84 Johnson City, TN 37601

Knoxville, TN 37901-0084 and

 and Kent Garland

District Public Defender’s Office Assistant District Attorney General

 for the 1st Judicial District P.O. Box 38

142 East Market Street Jonesborough, TN 37659

Johnson City, TN 37601

(ON APPEAL)

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton

Judge
2

O P I N I O N

The defendant, Robert Harrison Blevins, appeals as of right from a jury

conviction in the Washington County Criminal Court for burglary, a Class E felony, and

vandalism of property valued under five hundred dollars, a Class A misdemeanor. He

was sentenced as a career offender to six years in the custody of the Department of

Correction for the felony and to eleven months and twenty-nine days for the

misdemeanor to be served concurrently, but consecutively to previously imposed

sentences. The trial court also imposed fines totaling five thousand, five hundred

dollars. On appeal, the defendant states his issues as follows:

(1) whether the evidence is sufficient to support his

convictions;

(2) whether the trial court erred by allowing evidence of the

defendant’s six prior convictions for burglary to impeach the

defendant’s testimony;

(3) whether the prosecutor violated the defendant’s right to a

fair trial by questioning him about his prior convictions and

by asking the trial court to clarify the impeachment

instruction to the jury; and

(4) whether the trial court erred by denying the defendant’s

request for relief from payment of fines.

We hold that the evidence is sufficient and that no reversible error occurred.

Officer Jeff Stork of the Johnson City Police Department testified that he

and Officer Jeff Jenkins responded to a call reporting a burglary in progress near the

Broadway Hotel and Perkins Restaurant at approximately 4:00 a.m. on July 29, 1994. 

He explained that someone had called Officer Harrell and told him that a person was

inspecting the cars and looked like they were getting ready to break into one. Officer

Stork stated that he was instructed to park away from the area to avoid scaring anyone

off. He said that he and Officer Jenkins exited their vehicles and began walking among

the cars parked near the back of the parking lot while Sergeant Michael Harris, who had

also arrived, started checking the vehicles in the front of the lot. He recalled hearing
3

Sergeant Harris, who was approximately one hundred and fifty yards away, yell at

someone to get their hands up. Officer Stork said that he and Officer Jenkins ran to

Sergeant Harris and saw Sergeant Harris moving the defendant from the front door of a

gray Nissan and placing him over the hood of the vehicle. He stated that the driver’s

side window was broken and the door was open.

Sergeant Michael Harris of the Johnson City Police Department testified

that he also responded to the call regarding an automobile burglary in progress. He

stated that he parked his vehicle in the Perkins Restaurant lot and walked towards the

Broadway Motel parking lot. He said that as he walked towards the motel, he continued

to listen to his radio. Sergeant Harris testified that Officer Harrell, who was working offduty at a Wal-Mart located nearby, was talking to an unidentified person on the phone

regarding the burglary and was simultaneously communicating to him by radio the

information given by the unknown caller. Sergeant Harris said that as he walked in the

grass between two motel units, he approached the front of the victim’s vehicle. He

recalled hearing a loud popping noise and Officer Harrell telling him over the radio that

the caller stated that a window had just been broken out. Sergeant Harris said that he

then saw the defendant partially in the victim’s vehicle and that the passenger’s side

window was broken. He testified that he could see the defendant because a security

light was located very close to the victim’s car and explained that the defendant had

two-thirds of his body in the car. Sergeant Harris said that the defendant was crouching

down with one leg on the ground and the other in the vehicle, attempting to conceal

himself. He testified that the defendant had a pocketbook in his hands. Sergeant

Harris stated that he then told the defendant at least three times to raise his hands, and

when the defendant did not respond, he placed him on the front of the car and arrested

him. 
4

On cross-examination, Sergeant Harris admitted that he did not interview

any witnesses at the scene and that he did not know the name of the person who called

Officer Harrell. He stated that although he did not question him or obtain his name, he

spoke to a man who said that he had called Officer Harrell who was at Wal-Mart and

told him about the burglary. Sergeant Harris also conceded that he failed to mention at

the preliminary hearing that he heard a loud popping noise before seeing the defendant

in the victim’s car. He acknowledged stating at the preliminary hearing that the caller

said that the window was broken with a rock and that he searched the vehicle but did

not find a rock. Sergeant Harris also stated that he did not attempt to obtain fingerprints

from the vehicle. 

Traci Jackson, the victim, testified that she and some friends left Legends

during the early morning hours of July 29, 1994, and went to Perkins Restaurant in

Johnson City. She stated that she drove her gray Nissan and waited in the car near the

entrance while Shannon Vaughn gave their names for the waiting list. The victim

recalled hearing the defendant, whom she did not know, talk to Vaughn for a couple of

minutes before she got back into the car. She testified that she then parked her vehicle

behind Broadway Motel because the restaurant’s parking lot was full. The victim stated

that the defendant had walked to where she had parked her car and started talking to

them. She remembered the defendant telling them that his name was Rob when

Vaughn asked him. She said that as they joined their other friends, she realized that

she had locked her keys and purse in the car and told her friends. She stated that she

attempted to open the doors but both were locked. The victim said that her friends told

her that they should eat first and then either get a spare set of keys from her house or

call the police. The victim testified that the defendant was present during the entire

conversation. She also admitted that the group may have stopped at one of her friend’s

motel room before walking to the restaurant.
5

The victim testified that they walked to the restaurant and that everyone

sat at a booth except the defendant, who sat approximately three booths away with two

other men. She recalled seeing the defendant leave after approximately five minutes. 

She stated that approximately forty-five minutes later, they left and walked to the hotel

office to call the police or a locksmith. She said that the clerk told her that the police

were already in the parking lot. The victim testified that she saw Sergeant Harris and

asked him whether he could assist her in unlocking her car. She said that after talking

to Sergeant Harris, she discovered that someone had broken into her car and that the

passenger’s side window had been completely shattered. She stated that nothing had

been removed but that her purse had been moved from the passenger’s side floorboard

to the passenger’s seat. She also stated that she noticed a large rock lying under her

seat that afternoon when vacuuming the car. The victim said that she gave a

description of the defendant to Sergeant Harris. She also testified that the repair to her

window costed one hundred and seventy-nine dollars. The victim stated that she did

not give the defendant permission to enter or to damage her car. 

 

Chad Hummon, an acquaintance of the defendant, testified that he saw

the defendant at Perkins Restaurant on July 29, 1994, at approximately 3:00 a.m.

talking to two women parked in a dark-colored car near the entrance to the restaurant. 

He stated that he waved at the defendant and that he later sat at a table with him. He

said that the two women sat with them for awhile before moving to a separate booth. 

Hummon testified that the defendant was in the restaurant with him for about one hour. 

He also conceded having a prior conviction for secreting personal property.

The defendant testified that he left Nashville Sound on July 29, 1994, and

went to Perkins Restaurant with a group of his friends, including Hummon. He stated

that he parked his car in the rear because the lot was full and walked towards the

restaurant. He said that he saw Hummon starting to walk into the restaurant as a car
6

drove up to the entrance. The defendant testified that the victim was driving, another

woman was in the passenger seat, and a man was in the back seat. The defendant

recalled yelling at them and the passenger asking him to come to her side of the car.

He said that he then asked them whether they wanted to party and they said that they

wanted to eat first. According to the defendant, the passenger got out of the vehicle, he

sat in the passenger seat, and the passenger sat on his lap as the victim tried to find a

parking space. The defendant testified that the lot was full so they parked in the rear

close to his car. He said that the victim stopped at a friend’s motel room before they

walked to the restaurant. 

The defendant stated that he saw Hummon when he entered the

restaurant and that he told the victim and her friends that he was going to sit with

Hummon instead. He stated that the victim and her friends sat at another table. The

defendant testified that he stayed for approximately an hour eating and talking with

Hummon. He said that when he left the restaurant, he declined Hummon’s offer for a

ride and walked to his car. According to the defendant, several uniformed police

officers started yelling at him to freeze as he started to step over a curb to go between

two cars. He denied being inside a gray Nissan or knowing anything about a rock being

thrown through the car’s window. He also denied knowing that the victim had locked

her keys in her car. The defendant admitted having prior convictions for attempted firstdegree burglary in 1987, four counts of third-degree burglary in 1987, aggravated

assault in 1989, larceny from a person in 1989, third-degree burglary in 1990, and two

counts of robbery in 1990. 

In rebuttal, the victim testified that the only other person in her vehicle was

Shannon Vaughn who sat in the passenger seat. She also denied that the defendant

got into her car and rode with her to park her car.
7

Shannon Vaughn testified that she rode with the victim to Perkins

Restaurant and that she saw the defendant when the victim parked in front of the

restaurant and she went inside. She said that she was the only person with the victim

and that she rode in the passenger’s seat. She denied asking the defendant to get in

the car with them, that the defendant rode with them to park, and that she sat with the

defendant at a booth at the restaurant. She stated that the defendant sat two or three

booths away. Vaughn said that she was not sure how long the defendant stayed at the

restaurant but recalled that he left before they did. 

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends the evidence is insufficient to establish the

defendant’s guilt beyond a reasonable doubt for the offenses of automobile burglary

and vandalism of property valued under five hundred dollars. Essentially, he asserts

that had the trial court excluded evidence of the defendant’s prior convictions for

automobile burglary, the jury could have found that the defendant’s testimony was

credible and rejected Sergeant Harris’ testimony. The state argues that the evidence

overwhelmingly supports the convictions and that the jury was entitled to reject the

defendant’s testimony as untrue. We hold that there is sufficient evidence to support

the convictions. 

Our standard of review when the sufficiency of the evidence is questioned

on appeal is "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence, but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
8

Pursuant to T.C.A. § 39-14-402(a)(4), a person commits burglary by

entering an automobile without the effective consent of the owner with the intent to

commit a felony or theft. Vandalism is defined as knowingly causing damage to or

destroying real or personal property of another without the owner’s effective consent. 

T.C.A. § 30-14-408(a). 

In the light most favorable to the state, the evidence shows that Sergeant

Harris discovered the defendant bending down in the passenger seat of the victim’s car

holding the victim’s purse in his hands. Also, a rock was found underneath the seat,

and the passenger’s side window was broken. Although the defendant testified that he

was merely stepping over a curb to walk between two cars when several officers

ordered him to freeze, the jury was entitled to reject the defendant’s claim and accredit

the testimony of the state’s witnesses. Under these circumstances, we conclude that

ample proof existed to allow a rational trier of fact to conclude that the defendant was

guilty beyond a reasonable doubt of both burglary and vandalism of property valued

under five hundred dollars.

II. EVIDENCE OF PRIOR CONVICTIONS 

Next, the defendant claims that the trial court abused its discretion by

allowing evidence of the defendant’s prior burglary convictions to impeach his

credibility. He argues that because the prior convictions involved the same crime for

which he was tried, the prejudicial effect far outweighed any probative value for

credibility. The defendant asserts that the state should have been limited to using

convictions other than the burglary convictions for impeaching the defendant. In the

alternative, he contends that the six prior burglary convictions should have been

described as six convictions for crimes involving dishonesty rather than using the term

burglary. The state argues that the trial court properly allowed the evidence of the

defendant’s prior convictions. We agree.
9

The admissibility of evidence is a matter within the trial court’s discretion

and will not be reversed on appeal absent an abuse of discretion. State v. Harris, 839

S.W.2d 54, 66 (Tenn. 1992). Pursuant to the conditions and procedures set forth in

Tenn. R. Evid. 609, the credibility of the accused may be attacked by presenting

evidence of prior convictions. One condition requires that the crime either be a felony

or a crime involving dishonesty or false statement. Tenn. R. Evid. 609(a)(2). Also, the

trial court must find that the conviction’s probative value on credibility outweighs its

unfair prejudicial effect on the substantive issues. Tenn. R. Evid. 609(a)(3). In

determining the probative value of the prior convictions, the trial court must assess the

similarity between the crime on trial and the crime underlying the impeaching

conviction. State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992). The trial

court must next analyze the relevance the impeaching conviction has to the issue of

credibility. Id. 

Before trial, the state notified the defendant of its intent to use the

following convictions to impeach the defendant’s credibility at trial: (1) four counts of

third-degree burglary in 1987, (2) bail jumping in 1987, (3) attempted first-degree

burglary in 1987, (4) aggravated assault in 1989, (5) larceny from a person in 1989, (6)

third-degree burglary in 1990, and (7) two counts of robbery in 1990. The defendant

filed a motion in limine to exclude evidence of the defendant’s prior convictions due to

the similarity of the offenses to the charged offense of burglary of an automobile. In its

ruling on the defendant’s motion in limine, the trial court held that the bail jumping

conviction was inadmissible. It also concluded that the defendant’s remaining prior

convictions could be introduced to impeach the defendant’s credibility if he testified

because the offenses of burglary, robbery and larceny directly related to the

defendant’s truthfulness and the probative value on his credibility was not outweighed

by any undue prejudice.
10

The defendant relies upon Tennessee case law that has held that

evidence of the defendant’s conviction for an offense similar to the one on trial should

not be introduced for impeachment purposes because there is too great a danger of it

improperly showing a propensity to commit that type of crime. See, e.g., State v.

Roberts, 703 S.W.2d 146, 147 (Tenn. 1986) (in aggravated assault case, could not

show prior assault and battery conviction); Long v. State, 607 S.W.2d 482, 486 (Tenn.

Crim. App. 1980) (in murder assault case, could not show prior second degree murder

conviction). However, the fact that a prior conviction involves a similar crime for which

the defendant is being tried does not automatically require its exclusion. As previously

noted, the trial court must analyze the prior conviction and the offense on trial to

determine whether the conviction’s probative value on credibility is outweighed by the

danger of unfair prejudice on the substantive issues. See Tenn. R. Evid. 609(a)(3);

State v. Farmer, 841 S.W.2d at 839. 

In this case, the trial court considered the similarity between automobile

burglary and the defendant’s previous convictions for burglary, robbery and larceny. It

correctly concluded that the felony convictions were for crimes of dishonesty, thus

lending greater weight to their probative value regarding credibility. See State v. Miller,

737 S.W.2d 556, 559-60 (Tenn. Crim. App. 1987) (burglary); State v. Caruthers, 676

S.W.2d 935, 941 (Tenn. 1984) (robbery); State v. Hardison, 705 S.W.2d 684, 686

(Tenn. Crim. App. 1987) (petit larceny). 

Also, the defendant made his credibility an important issue by denying any

wrongdoing and asserting legitimate conduct. Under these circumstances, we are not

inclined to question the trial court’s allowing all the convictions for the purpose of

impeachment. Thus, although the prior burglary convictions are similar to the offense

on trial, we hold that the trial court did not abuse its discretion in concluding that the
11

convictions’ probative value on credibility outweighed any danger of unfair prejudice to

the defendant. 

The defendant contends in the alternative that the trial court should have

limited references to his previous burglary convictions to his having six prior convictions

for crimes involving dishonesty. We note that the case upon which he relies, in which

this court allowed the trial court’s use of such a procedure, did not receive the blessing

of our supreme court. See State v. Ross Jones, No. 01C01-9405-CR-00176, Davidson

County (Tenn. Crim. App. Feb. 8, 1995), app. denied (Tenn. May 1, 1995) (concurring

in results only). In any event, Jones did not hold that the trial court is required to limit

the reference to prior convictions as the defendant requests. Rather, it only held that

the trial court’s use of such a procedure was not an abuse of discretion in that case. In

similar fashion, we believe that the circumstances in the present case do not reflect an

abuse of discretion by the trial court in not limiting any references to the defendant’s

previous convictions to felonies involving dishonesty. 

III. PROSECUTOR CONDUCT REGARDING IMPEACHMENT

The defendant asserts that he was denied the right to a fair trial because 

the prosecutor engaged in misconduct by the manner in which he questioned the

defendant about prior burglary convictions being for automobile burglaries. The

defendant also contends that the prosecutor improperly requested that the trial court

instruct the jury regarding the proper use of evidence of the defendant’s prior burglary

convictions as its last instruction although an identical instruction had been given

earlier. The state argues that the actions of the prosecutor do not rise to the level of 

misconduct. 

First, we note that the defendant did not object at the time of the

prosecutor’s question regarding automobile burglaries nor did he include this issue in
12

his motion for new trial. Also, although he objected at the time of the jury instruction in

question, it was not included as an issue in his motion for new trial. Pursuant to Rule

3(e), T.R.A.P., an issue is considered waived for appellate review purposes if it is not

specifically included in the motion for new trial, but is an issue for which the result would

be a new trial. Such is the case before us. Moreover, in the context of plain error, we

see nothing that affects the substantial rights of the defendant. See Tenn. R. Crim. P.

52(b).

After the defendant acknowledged on cross-examination that he was

convicted in 1987 for four counts of third-degree burglary, the prosecutor asked him if

the convictions were for automobile burglaries. The defendant replied, “No, I don’t think

so.” Needless to say, to the extent that the question was for the purpose of eliciting

underlying facts of the former convictions, it was improper. See State v. Morgan, 541

S.W.2d 385, 389 (Tenn. 1976); Long v. State, 607 S.W.2d at 485. However, the

defendant’s negative response ended the inquiry and the matter was never mentioned

again. Under these circumstances and with the strong evidence against the defendant,

we do not believe that the question affected the jury verdicts to the defendant’s

prejudice. 

As for the jury instruction claim, the defendant complains about the

prosecutor getting the trial court to repeat the instruction relating to considering

evidence of prior convictions only on the issue of credibility. After the trial court gave its

instructions to the jury, the prosecutor stated that it had failed to instruct the jury

regarding both the specific offenses for which the defendant had previously been

convicted and the proper consideration of them relative to credibility. The prosecutor

requested that the trial court instruct the jury accordingly, which it did. However, the

trial court had already instructed the jury in such a fashion. 
13

Obviously, the trial court should not have instructed the jury twice relative

to the specific prior convictions of the defendant. However, there is no showing that the

prosecutor intentionally sought to influence the jury by having the instruction given a

second time, immediately before deliberation. We note as well, that the instructions

were an accurate statement of the law that limited the jury in its consideration of the

defendant’s prior convictions. Again, under these circumstances and the strength of

the evidence against the defendant, we do not believe that the prosecutor’s request

was misconduct or that the trial court’s reinstruction affected the jury’s verdicts to the

defendant’s prejudice. See Judge v. State, 539 S.W.2d 340, 344-45 (Tenn. Crim. App.

1976).

IV. FINES

The defendant argues that the trial court erroneously denied his request to

be relieved from the payment of fines totaling five thousand and five hundred dollars. 

He asserts that because he supports a wife and two children and is uneducated,

unskilled and heavily in debt, the trial court should have waived the fines imposed. The

state argues that the seriousness of the offense, the need for deterrence and the

defendant’s extensive criminal background justify the imposition of the fines and that a

suspension or reduction of the fine would only depreciate the seriousness of the

offense. 

At the trial, the jury returned a fine for the burglary at three thousand

dollars and for the vandalism at two thousand five hundred dollars, each being the

maximum for that class of offense. See T.C.A. § 40-35-11(b)(5) and (e)(1). At the

sentencing hearing, no testimony was presented by either party, which left the filed

presentence report and the proof at trial for the trial court’s consideration. The

defendant conceded that he had enough prior convictions to have a career offender

status, thereby requiring imposition of the maximum length of sentence for the felony
1

The trial court retains jurisdiction, even after final judgment, to modify the payment

sched ule or to red uce or re mit entire ly the amo unt of fines for which the defe ndant m ay be obliga ted. See

T.C.A. §§ 40-2 4-101, -1 02 and -104. 

14

class involved. See T.C.A. § 40-35-108. The defendant was sentenced to eleven

months, twenty-nine days for the vandalism offense, to be served concurrently with the

burglary sentence. 

As for the fines, the record reflects that the parties and the trial court

misunderstood the respective roles of the jury and the trial court in imposing the fines. 

The defendant asked the court to “suspend” the fines and the prosecutor asserted that

the state was opposed to a suspension, stating that “that’s the jury’s part of this, and

that’s the only part that they’re left with.” Then the trial court stated:

Well, it’s a way for the jury to speak, but, I don’t think

the jury when they set that fine understands it’s

to -- in some instances it’s almost impossible to collect, but

we’ll leave that for a future day.1 The motion to reduce the fine

is respectfully denied.

Each judgment of conviction in this case entered by the trial court states the amount as

a “fine assessed by the jury.” In this fashion, the record reflects that the parties and the

trial court believed that the fine to be imposed as part of the sentence was to be set by

the jury. Such is not the case.

Although the jury is to “fix” the amount of the fine and report it with a guilty

verdict, it is the trial court that is obligated to impose a fine, if any -- not to exceed that

fixed by the jury -- as part of the sentence. See T.C.A. § 40-35-301(b). The trial court’s

imposition of a fine, if any, is to be based upon the factors and principles of the 1989

Sentencing Act, such as, prior history, potential for rehabilitation, financial means, and

mitigating and enhancing factors, that are relevant to an appropriate, total sentence. 

See State v. Bryant, 805 S.W.2d 762, 766 (Tenn. 1991). Thus, the trial court may not

simply impose the fine as fixed by the jury. 
15

However, we need not remand the case for proper assessment of the

fine, because the record before us is sufficient to justify affirming the amount of the fine

imposed by the trial court. The presentence report reflects that the twenty-eight-yearold defendant held employment for monthly periods in 1993 and 1994 with four

separate employers. No record of employment before 1993 is presented. The report

shows that the defendant owns nothing, but claims a debt of four thousand dollars in

addition to an unknown amount for child support for a child from a previous marriage. 

The defendant is married and also supports a two-year-old child who lives with him and

his wife. The defendant is a high school dropout who obtained his GED. He claims to

be in good physical and mental health, but admitted previously using marijuana about

once a week for a few years. He has convictions for robbery, aggravated assault,

larceny from the person, burglaries, attempted burglary, and several misdemeanors. In

fact, the defendant was on parole when he committed the present offenses. 

The defendant contends that his financial status and family needs justify

less than the maximum fines. Although indigency may in certain cases justify no fine,

as previously stated, it must be considered with the other relevant factors. 

Thus, although the defendant’s ability to pay a fine is a factor

it is not necessarily a controlling one. We recognize that an

oppressive fine can disrupt future rehabilitation and prevent a

defendant from becoming a productive member of society.

Such results are not usually compatible with the purposes and

principles of the 1989 Sentencing Act. However, a significant

fine is not automatically precluded just because it works a

substantial hardship on a defendant -- it may be punitive in the

same fashion incarceration may be punitive. 

State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993).

In the past, the defendant has shown little, if any, inclination to meet the

needs of his family and children through honest effort. His proven record of disregard

for conforming his conduct to the laws of society does not bode well for rehabilitation

occurring in the near future. In fact, his compilation of such an extensive record in his
16

ten years of adulthood, by itself, warrants maximum fines for punishment and

deterrence. Relief, if any, from the fines should await assessment under his future

conduct and circumstances. The amount of the fines imposed by the trial court is

proper.

In consideration of the foregoing and the record as a whole, the

judgments of the trial court are affirmed. 

 

Joseph M. Tipton, Judge 

CONCUR:

 

Jerry L. Smith, Judge

 

Thomas T. Woodall, Judge