Fo r t he sake of cl ari t y , we have re- o rdered t he i ss ues f rom t h e m a n n e r i n whi ch t hey were p res ent ed by t he 1

D ef endan t i n h i s appel l at e br i ef an d hav e c om bi ned t wo ar gu ment s t hat deal t wi t h t he s ame i s s ue. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON A ssi gne d on Br ie fs F eb ru ar y 7, 200 6

STA TE OF TEN NES SEE v. TA MA INE WO RKS

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 04-02521 Jam es C. Beasley, Jr ., Judge

No. W2005-01048-C CA-R 3-CD - F iled May 26, 2006

This is a direct a

ppeal f rom a c onviction on a jury verdic t of first degr ee premeditate d murder. See Tenn. Code Ann. § 39- 13-202. The D efe ndant was se n t en ce d t o l i fe in prison. On appea l, the Def endant r aises five issues: (1) the trial c ourt err ed in allow i n g t he State to def ine pre meditation fo r p ro sp e c tiv e jur or s th ro ug h th e us e s o f e xamp le s d uring vo ir dir e ; ( 2) the tr ial cou rt e rr e d in excluding fr om evidence the victim’s all ege d i n volvement in a prior homicide ; (3) the tria l court

err ed in allowing as evide nce at trial the prior testimony from an una vailable witness; (4) the trial
court e rre d by

allowing the testimony

of three of the State’s r ebuttal witnesses; and ( 5) the e vidence was insuffic ient to find him guilty bey ond a re asonable doubt o f t h e crime of first de g ree , preme ditated murder

. We affirm the judgme nt of the trial court. 1

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J.
, d e li v e r e d th e o p in io n o f th e c o u r t, in w h ic h J ER R Y L. S MI TH and N OR MA M C G EE O G LE , J J ., joined.

Ma rk Me sle r, Me mph is, Te nn e sse e , f or the app e lla nt, Ta ma ine Wor ks

.

Paul G. Sum me rs , At torne y Ge ne ra l a ndRe po rt e r; B ri a n Cl a y John so n, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, D i s t ri ct Att orney Gene ral; Paul Hag erma n and De an De candia , Assistant District Attorney

Gene rals, for

the appe llee, State of Te nnessee

.T he i ndi ct ment r eci t es t he vi ct i m’ s l as t na me as “ M cChri s t ai n. ” 2

T h e re c o rd re v e a ls tha t M s. P ru itt ’s co u sin c o u ld no t b e lo c a te d a t t h e ti m e o f t h e trial. 3

-2- OP IN ION

F AC TS The c onviction in this case stems from the Oc tober 9, 2003 murde r of Mr. K eon McChristian 2 (the “ victim”) in an apar

tment c omplex in Me mphis. The Def endant, Ta maine Works, confr onted the victim in a second f

loor hallway

at the Peppertree Apartments about 10:30 at night and fire d four shots from an assault-type we apon, hit ting the victim twice. The victim died from his wounds. The Def endant f led the sce ne but was arr ested by police at the sa me apa

rtment complex severa l months later. I n Marc h of 2004, the Defenda nt was indi cted by a S helby County g rand jury on one count of first deg ree , preme ditated murder

. The De fenda nt rec eived a jury trial, which wa s conducte d over the cour se of se vera l day s in Febr uary and Mar ch, 2005.

B e fo re the jury

wa s se a te d, the tr ia l c ou rt too k u p s e ve ra l pr e lim ina ry ma tte rs . T he Sta te prese nted a motion to ex clude the D efe ndant from introduc ing te stimonyconce rning the victim’s alleg ed invol vement in the death of a friend of the D efe ndant a f ew hour s prior to the murder at issue in this case. The State arg ued that any evidenc e of this prior killing was not r eleva nt. The De fenda nt prese nted a motion to exclude the prior testimony of a State w itness who was unavailable to testify at trial, alleg ing that the statement, although m ade under oath at a pre liminary hearing, w as unreliable

. The trial c ourt g rante d the State’s motion and excluded testimony conce rning the prior ho mi cid e bu t de nie d th e De fe nd a nt’ s mo tio n a nda llo we d th e prior te sti mon y

of the un a va ila

ble witness.

At trial, the State’s lea d witness, Ms. Kimberly Pruitt, t estified tha t on the nig ht of the murder, she was staying w ith her cousin at t he Peppertree Apartments. As she exit ed her cousin’s
apartment with her six -y ear -old son someti m e afte r 10:00 in the eve ning on O ctober 9, 2003, she passed the D efe ndant in the hallway on the sec ond floor of the apa rtment complex buil ding. She

rec og nized the Defe ndant as someone she had seen around the complex for severa l y ear s and who

wa s a frie nd of “ B ri a n, ” the ma n he r c ou sin wa s datin g a t the tim e

. As the De fe nd a nt p a sse d h e r i n the hallway , Ms. Pruitt ’s cousin, who wa s immediately behind her , asked: “ Tamine, what y ou fix in’ to d o?” Ms. Pruitt st a te d th e De fe nd a nt re pli e d, “ Shh h, ” ind ic a tin g the tw o w ome n s ho uldre ma in

3 quiet.

Ms. Pruitt stated that at the time, the D efe ndant was not we aring a shirt, ha d on black ordarkcolore d jeans, a nd was carry ing a larg e g un only

partially conce aled in a g arba g e bag . She further stated that the De fenda nt was only three or four

fee t from her when they passed in the ha llway , and she saw his fa ce. T he De fenda nt walked towa rd the a partment ne x t d o o r, t h e re sidence of a ma n known as “ V.” Ms. Pruitt walked the opposite direction toward the stairs, and her cousin went ba ck inside her a

partment a nd closed the door . Ms. Pruitt testified that she then saw the Def endant shoot the victim, which she describe d as follows: the victim came out of “V’ ”s apa rtment; the Def

endantSe rgeant B arry H anks o f the M em p hi s P o l i ce D ep art m ent a l so t est i f i ed at t ri al t hat he s ho wed M s. P rui t t t he 4

p ho t o graphic l i ne- up whi l e she was i n t he ho spi t al
, but she s t at ed s he co ul d not see wel l due t o m ed i cat i o n.

-3- sh ot the vic tim

tw o ti me s; the vic tim

fe ll t o th e fl oo r; the De fe nd a nt s ho t the vic tim tw o mo re tim e s; the Def endant then f

led.

Ms. Pruitt testified that af ter the D efe ndant fled, she ran to the vi ct i m , who said: “He shot me.” Ms. Pruitt stated that she ca lled 911 from her cellular phone and r eporte d the incident. She also stated that appr ox imately five or ten minutes afte r t he shoot ing, “V” came and asked he r who shot the victim, but she de clined to answer . She further stated that whe n “V” hear d the police a rrive, he took off. Ms. Pruitt also testified t hat t he victim did not have a gun. When the pol ice arrived, she was for ced to plac e her

hands in the air, but when they learned she was not a threat, she wa s allowed to leave and did not give a statement to the police the night of the murder

.

Ms. Pruitt also t es t i fi ed that she be g an to re ceive threats over her cellular phone fr om the De fe nd a nt’ s f

ri e nd , w ho wo uldc a ll a nd tel l her tha t sh e didno t “ ne e d to be te sti fying a g a ins t hi s frie nda ndthat so me thi ng ’s g oin g to h app e n to [he r] a nd[he r] c hil dren if [she ] do[e s] c ome forwa rd.” B eca

use of these threats, Ms. Pruitt did not make a statement to the police until sever al

wee ks later whe n she wa s in the hospital.

On c ro ss- e xami natio n, Ms. Pruitt a dmi tte d sh e ha d a fe lon y re c or d. She state d th a t sh e did not tell “V” who shot the vic tim because she wa s “par anoid.” She also stated t hat “V” di d not take

a nythi ng fr om the vic tim , but that “V ” wa s carry ing a ha ndg un . M s. Pruitt a lso c lari fi e d th a t w hil e sh e didno t ma

ke a state me nt t o the po lic e the nig ht of the mur de r, sh e didle a ve a n a no nymou s ti p on the 528-CASH tip-line the following day . Howeve r, she then be g an to receive threats over the phone and the ref

ore did not talk to the police until severa l weeks later whe n she wa s in the hospital suffe ring from anxiety attacks and no longe r wanted to “hold i t in.” The poli ce came to her hospital room and she g ave the m a statement. She also admitted that during this meeting she was shown a photogr aphic line- up but could not identify the Def endant’ s photo be cause she wa s on medication that c a us e d b lur

re d v isi on

. Ho we ve r, sh e dididenti fy th e Defen da nt’ s p ho to at tria l. S he a lso

4 ide nti fi e d th e De fe nd a nt i n c ou rt a s th e ma n s he wi tne sse d s ho ot the vic tim

.

Ms. Me morie No e l, the vic tim ’s a un t, a lso te sti fi e d at tria l, s ta tin g that sh e liv e d in the sa me apartment complex and heard f our g unshots on the e vening of the incide nt at approximately 10:30. Shortlythere afte r, a neig hbor came to he r door and informed her that her r elative ha d been shot. She rushed to the victim, who wa s ly ing on the g round, and noted that also at the scene was “ a g irl” and “V,” whom she identified as Vincent Sulton, who also went by the moniker “B ig V ” and “ V Dog .”

Serg eant Ge ne Hulley , an I nvestig ator with the Memphis Police Department F elony Response Squad, testified that he assisted the crime scene investigators on this case. Althoug h the victim had been r emoved by the t ime he arrived, he stated that he obse rved at the crime sc ene bullet holes on the building w alls, spent shell casing s, and a blood stain on the f loo r. He described the shell casing s as consistent with a “la rg e ca liber, automatic w eapon.”T h e re c o rd re v e a ls tha t S e rg e a n t S im s o f t h e M e m p h is P o lice D e p a rtm e n t wa s d e c e a se d a t t h e ti m e o f t ria l. 5

A c o p y o f th e a d v ic e o f rig h ts fo rm , b e a rin g th e s ign a tur e s o f t h e D e fen d a n t, S g t. S im s a n d O ff ic e r M e rr itt
, 6

w a s e n te re d into e v id e n c e

.
-4- Offic er Ellason Flag g of t he Memphis Police Depa rtment testified that on January 24, 2004, she re ceive d a report that the Def endant was at the Peppertre e Apartments. There was a war rant for the Def endant’ s arr est. Offic er F lag g stated that whe n the Def endant sa w the uniforme d office rs, he fl e d. Th e of

fi c e rs pu rs ue d, e ve ntu a lly c aptu re d th e De fe nd a nt, a ndpla c e d h im u nd e r a rr e st.

An audio tape of

M e mp h is Po li c eO f

f ic er Ser g eant Sims’ testimonyat the De fenda nt’s Marc h 4, 20 04 pr e lim ina

ry he ari ng wa s pla y e d for the jury a t tria l a nde nte re d in to e vid e nc e

. Sg t. S ims 5
te sti fi e d th a t he a tte mpt e d to take a state me nt f

ro m the De fe nd a nt a ft e r h is a rr e st, bu t th e De fe nd a nt, afte r he w as advised of

his rig hts, elec ted t o not make a formal state ment. Howeve r, the De fenda nt did remar

k to Sgt. S i m s t hat “wa sn’t nobody g oing to make it to testi fy ag ainst him in t he

c ou rt ro om. ” Se rg e a nt S ims a lso state d th a t th e De fe nd a nt r e fu se d to si g n th e a dv ic e of ri g hts fo rm

.

Dr. Kar en Chance llor, the Chief Medica l E x aminer f or Shelby County , was c ertified a s an expert in the field of forensic pathology
, and testi fied that the vi ctim suffe red f rom a g unshot wound to the lower a

bdomen that did “extensive dam age ,” and one g unshot wound to the leg . Dr. Chance llor opined that the g unshot wound t o the abdomen was the c ause of death be cause it severe d two larg e blood vessels a nd cause d massive bleeding

.
Mr. Anton Armour, an ac q u aint ance of the De fenda nt, was subpoena ed by the State and testified at trial, a dmittedlyag ains t h i s wi ll, that at some point after the murder he was with the De fe nd a nt. Th e y

we re ta lki ng abo ut the pa st, a ndthe De fe nd a nt m a de the fo llo wi ng state me nt: “Man, y ou know I ’m a re al nig g er, I ’m a killer, y ou can a sk them nigg ers in the Peppe rtree about me.” On c ross-examination, Mr. Armour a dmitted he was a convicted f

elon.

The De fenda nt, properly

advised of his rig hts, elec ted not to testify on his own behalf. The defe nse did ca lled Serg eant Timothy Cooper of the Memphis Poli ce D epartment, who testified that when he arrived at the c rime sce ne shortly afte r midnight, ther e was no one ther e who witnesse d the crime a nd was willing to talk to him. Officer Wil liam Merritt of t he Memphis P olice De partment te sti fi e d th a t he int e rv ie we d the De fe nd a nt al on g wi th Sg t. S ims , a ndstate d th a t th e De fe nd a nt d id sign the advice of rig hts form. Offic er Me rritt also stated t h at t he De fenda nt never made a ny 6 incriminati n g o r t h re at en i n g s t at em en t s wh i l e i n h i s p re s en ce , b u tad m i t t ed o n cr o s s -e x amination that there wer e times when the Def endant wa s alone with Sg t. Sim s.

The de fense also ca lled Mr. Vincent Sulton, a.k.a

. “V.” Mr. Sulton testi fied that in his initial statement to the police, mad e ab o u t four day s after the crime, he stated that he had no pe rsonal kn ow le dg e of

the e ve nts on the e ve nin g of the mur de r b ut kne w the De fe nd a nt s ho t th e vic tim beca use the De fenda nt had communicate d threats, warning him not t o talk. Howeve r, Mr. Sulton later ma de a second statement to police in which he r ecounte d that he and the victim were away from-5-

the apa rt me nts the da y of the mur de r wh e n the vic tim inf orme d Mr

. Sul ton he wa s g oin g to g o to his
apartment at Peppertre e. Mr. Sulton informed police that the victim arrived f irst, he followed, a nd he wa s just coming up the stairs w hen he he ard shots and sa w the De fenda nt wi t h a g un. The Def endant pointed the g un at hi m and then ran off. Mr. S ulton then i nformed the police that he w as

unarme d, went to the victim, took a handg un from the victim, threw it onto the roof, and r an whe n he hea rd the police

.

On cr oss-examination, Mr. Sul ton ga ve a third version of the events of the eve ning, te stify ing that he in f

a c t di d n ot c ome up the sta ir s, bu t r a the r w a s in h is apar tmen t w he n h e he ardthe sh ots fired, and then ca me out. He maintaine d that he did n o t h av e a gu n until he took one off of the victim, and he then c hased a fter the Def endant. Mr. S ulton further state d that the Def endant c alled him “not even a n hour afterwa rds” and threatened to kil l him. Mr. Sul ton also denied ha ving e ver told Ms. Turne r, Mr. Nelms or Ms. Noe l that the g un he had w as his and that he r etrieve d it from off the television set in his apartment.

The State c alled thre e re buttal witnesses: Ms. Roshunda Turner , the victim’s aunt; Mr. Damen Nelms, the vi ctim’s uncle; and Ms. Memorie Noel, another aunt of the vi ctim and a pr evious witness. All three te stified that they saw Vince S ulton a day afte r t he murde r, and he told them that

a ft e r the sh oo tin g he we nt i nto his apa rt me nt andg ot a

g un wh ic h w a s loc a te d on his t e le vis ion se t.

At the conc lusion of the trial, the j ury returne d a verdict of guilty on the i ndicted cha rg e of first deg ree , preme ditated murder. The trial court sente nced the Def endant to life in the c ustody of the Depa rt m en t o f C o rr ec tion. The Def endant timely

filed a motion for a

new tria l, which was denied, a nd this appeal followe d.

AN AL YSI S On appe al, the De fenda nt arg ues that the trial c ourt err ed in allowing t he State to make conclusions of law during voir dire a nd mad e s ev er al er rors in the a dmission and ex clusion of evidenc e. Specifica lly
, the Defenda nt claims the t rial court err ed byexcluding evide nce pe rtaining to a prior murder, erred in a llowing into evidenc e the prior testimony of a de cea sed dec lara nt, and

err ed in allowing into evidencethe testimony of three rebuttal wi t n esses called by the State. Additionally , the Def

endant a rg ues that the e vidence prese nted at trial wa s insufficient for any rational trier

of fa ct to find bey ond a re asonable doubt that he was g uiltyof first-de g ree , preme ditated murder.

I. Voir Dire I n his first issue on appea l, the Def endant a sserts that the trial c ourt err ed by “allowing the State to give numerous examples to the potential jurors of what the State believe d was the diff ere nce betwee n preme ditated murder and a killing of passion.” The Def

endant objec ted to two examples used by the State during voir d i re; stoppi ng to ge t ga s on a drive home as an e x ample of
preme ditation, and the classic “ law school” hypothetical for a heat of passion killing: a man c omes home, finds his wife in bed w ith another man and then ki lls him immediately , as opposed to wa itingW e no t e t hat t he reco rd i s d evo i d of evi d ence t hat a “ heat of p ass i o n” d efense was e v e r p u rs u e d by t he 7

D e fen d a n t at tria l.

-6- thr e e ho ur s, fo llo wi ng the mis c re a nt h ome a ndth e n kill ing him . T he De fe nd a nt a rg ue s th a t th e se hypotheticals “imprope rly trac ked the e vidence admitted at t rial” because one possible de fense was a heat of passion killing as r eveng e for the victim’s alleged i n v o l vement in a murde r of the Def endant’ s friend that occur red thre e hours prior to the murder at issue in this ca s e. Thus, the De fe nd a nt a

rg ue s, the Sta te ’s e xamp le s “g ro ssl y e nc ro a c he d o n th e pr ov inc e of the jur or s in determining the f

ac t u al point in ti me when a crime of passion would become a pre meditated murder.” 7

We beg in our ana ly sis of this issue by noting that the t rial court is vested with gr eat discr etion in determining how voir dire examination will be conducte d, and the trial court’s decision on how this ex amination will be conducte d will not be overturne d absent a finding of abuse of discre tion. See State v. Mickens, 123 S.W .3d 355, 375 (Tenn. Crim. App. 2003) . I n this case, the D efe ndant

arg ue s th a t th e Sta te imp ro pe rl y tr ie d to c oe rc e po te nti a l jur or s into c omm itt ing to a pa rt ic ula r c ou rs e of ac tion through the use of hy pothetical sce narios.

We find the examples or hypotheticals used by the State to be rather innocuous a nd conclude that the questioning conducte d by the State during voi r di re did not result i n any commitment from
prospec tive jurors bey ond their “a ppropriate willingness to dec ide the [issues in the case] on all of the evidenc e adduce d at trial, fre e of any prec onceive d notion[ s].” State v. Coe, 655 S.W.2d 903, 91 1 ( Te nn . 1 98 3) . A c c or din g ly , w e c on c lud e that th e tr ia l c ou rt didno t a

bu se its dis c re tio n in conducting the qualification process of jurors during voir dire in this case . See Solomon v. St ate, 48 9 S. W.2 d 547 , 550 (T e nn . Crim . App . 197 2) (h old ing it wa s with in the tr ia l c ou rt ’s dis c re tio n to allow a voir dire to continue af ter the D efe ndant s oug ht to g et j urors to commit to a course of action throug h the use of a hypothetical question). Additionally
, we note that the trial court instructe d the jury to “ ta k e th e la w a s I

g iv e it to y o u , ” a n d r e c it e d d u r in g b o thth e o p e n in g a n d c lo s in g ju ry i n s tru c t i o n s t h e c o rr e c t l e g a l e x p l a n a t i o n p e r t a i n i n g t o t h e e l e m e n to f p r e m e d i t a t i o n

. A c c o r d i n g l y, had there been an err or during voir dire, it wa s cure d by the court’s thoroug h instructi o n s and there fore rende red ha

rmless. See Te nn. R. App. P. 36(b).

II. Evid entiary Rulings The De fenda nt asserts in his ne x t three issues that the trial court e rre d in its determination of a d m i s s i b le evidenc e. Specif ically , the Def

endant a rg ues that the trial c ourt err ed in excluding

e vid e nc e of

a prior mur de r, in i nc lud ing the prior te sti mon y

of a n u na va ila

ble decl arant, a ndin allowing the testimony

of three State rebuttal witnesse s.

A. Exclusion of evid ence per tainin g to a prior m urder The De fenda nt claims that the trial court erre d in excluding from e vidence any testimonythat the victim in this case was involved in the murde r of the D efe ndant’s friend o n l y “hours earlier .” The trial c ourt g rante d the State’s motion to ex clude this evidenc e afte r concluding that testimony

conce rning this separate homicide wa s not releva nt to the issues in t h e De fe n dant’s ca se. The-7-

Def endant now a

rg ues this evidence is releva nt as it explained his “state of mind.” The De fenda nt

a lso arg ue s th a t it

wa s e rro r f

or the tr ia l c ou rt

to p ro hib it h im f

ro m arg uin g tw o s e pa

rate de fe ns e theories.

The re cord r efle cts that prior to trial, the court c onducted a n evidentiary hearing on se vera l
pr e lim ina ry mot ion s in c lud ing the Sta te ’s mot ion to exc lud e te sti mon y of a prior mur de r. Th e Sta te arg ued that it was not aw are of any proof that the D efe ndant kne w o f t h i s p rior murde r, so it was the re fo re ir

re le va nt. Th e De fe nd a nt e xpre sse d his de sir e to ha ve the op tio n of pr e se nti ng the de fe ns e that he didno t c omm it p re me dit a te d mu rd e r but rathe r a he a t of p a ssi on kil lin g a s r e ve ng e fo r this prior murde r; thus, the evidenc e wa s relevant. The trial court stated: “I f y our defense is, I didn’t do it, then I don’t see how the first ca se is rele vant,” but adde d that if the De fenda nt was g oing to a rg ue

an “alternative mental state,” then evidenc e of the prior murder would be rele vant. Ho weve r, defe nse counse l declar ed that he would proce ed based on the defense that the D efe ndant “didn’t do it and [ the S tate] ha[s] to prove othe rwise.” Acc ording ly , the trial court found that the evide nce of the prior murde r would mere ly “sm ea r[] the cr edibility ” or c hara cter of the victim and wa s not rele vant.

Gene rally , evidenc e is re l ev an t i f i t tends “to make the exist ence of any fac t that is of
conseque nce to the de termination of t h e ac t i o n m ore pr obable or less probable than it would be without the evidenc e.” Tenn. R. Evid. 401. Tenne ssee Rules of Evide nce pr ovide that “[a]ll relevant evidenc e is a dmissibl e except as pr ovided by the Constitut ion of the United States, the Constitution of Tenne ssee, these rules, or othe r rules or laws of g ener al application i n the courts of Tenne ssee. Evidence which is not relevant is not ad m i s sible.” Tenn. R. Evid. 402. Rule 403 states that “[a]lt houg h rele vant, evidenc e may be excluded if its probative va lue is substantiallyoutweig hed by the dang er of

unfair pr ejudice, c onfusion of the issues, or misleading the jury , or by considerations of undue de lay , waste of time, or needle ss pr esentation of cumulative evide nce.” Tenn. R. Evid. 403.

I n this case, a ny

testimonythat may

have be en prof

fer ed with re g ard to a n alleg ed prior murder w as not rele vant base d on the def ense the ory prese nted to the jury

. The re cord r efle cts that the Def endant m ad e t ac t i cal decisions pertaining to his defense in which he e lected not to testify himself and to pur sue a primary defe nse theory of “I didn’t do it.” As such, the De fe n d an t n ev er proff ere d any evidenc e that he w as aw are of the prior murder. Mor e si g nificantly , even if the Def endant did know of

this earlier act and wished to aveng e the murder of his friend, his defe nse, which wa s completely devoid of arg uments perta ining to a lesser mental s tate than that require d for a convic tion of premeditate d murder, rende red any evidenc e of a prior murder ir rele vant in his case. Ac c or din g ly , th e tr ia l c ou rt did no t e rr in g ranti ng the Sta te ’s mot ionto e xclu de thi s e vid e nc e . T his iss ue is w ith ou t me ri t.

B. P r ior te st im ony of an unav ail abl e de c lar ant The De fenda nt next claims that the trial court erre d in allowing the Stat e t o i n troduce the
pr e lim ina ry he ari ng te sti mon y of Se rg e a nt Sims of the Me mph is Po lic e De pa rt me nt. To su pp ort th is claim the De fenda nt arg ues that the testimony was unrel i ab l e an d there fore should not have bee n allowed at trial pursuant to the prior testimony hear say exception. The De fenda nt also arg ues thatT hi s Co ur t pre vi ous l y not ed t hat “ [ a] t one t i me, t her e was a t hi r d re qui r ement , t hat t he evi dence not be cr uci al 8

o r devast at i ng. ” Sum m ers , 15 9 S.W

. 3 d at 59 7 n. 4

. H o w e v e r, o u r m o st recent case l aw has “ d i spo sed” o f t hi s t hi rd

re q u ire m e n t. Id

.
-8- the statement Sg t. Sim s testified the De fenda nt made wa s either not re levant to his first deg ree murder c ase or

any probative va lue it had was outwe ighe d by the substantial prejudicia l effe ct it had on the Def

endant.

1. Prior testimonyhear say exception I t is un dis pu te d tha t Sg t. Sims ’ te sti mon y fr om the pr e lim ina ry he ari ng wa s g ive n u nd e r o a th and the De fenda nt had opportun i t y t o cross-e x amine him at that time. Additionally , the re cord

reve als that Sgt. Sims was dec ease d at the time of trial and there fore obviouslyunavailable to testify in person. Ne verthe less, the De fendant arg ues that Sg t. Sim s’ testimony was “ absolutely

and verifi ab l y fa l s e,” and there fore unreliable . The ba sis of the Def endant’ s arg ument cente rs ar ound
a contr adiction i n Sgt. S ims’ testimony and other evidenc e presented at trial. Serg eant Si ms testified

a t th e pr e lim ina

ry he ari ng that th e De fe nd a nt d id n ot sig n the a dv ic e of ri g hts fo rm , bu t a c op y of thi s form b e ar in g th e D e f

e n d a n t’ s s ig n a tu r e w a s in tr o d u c e d a t t r ia l. F o ll o w in g a n e v id e n ti ar y h ear ing on the matter, the trial court noted that the misst atements in Sg t. Sim s’ testimony “would g o to the weig ht that a jury

wants to g ive that statement,” but was neve rthele s s ad m i s s i b le under the long

rec og nized hearsay

exception.

Tenne ssee Rule of E vidence 801(c) define s hear say as “a statement, other tha n one made by the dec lara nt while testify ing at the trial or hea ring , offe red in e vidence to prove th e t rut h of the
matter a sserted.” Gene rally , “[h] ear say is not admissi ble ex ce p t as provided by these rule s or otherwise by law.” Tenn. R. Evid. 802. Cl early , Offic er Sims’ preliminary hearing te stimonywas hear say . See Te nn. R. Evid. 801(c). How ever , in limi ted circ umstan ce s , p ri o r t estimony may be

a dmi ssi ble a t tria l vi a

a he ars a y e xce pti on if

the de c larant i s u na va ila ble a ndif the pa rty a g a ins t whom the testimony

is offer ed had an opportunity and a similar m o t i v e to deve lop the testimony throug h other methods such a s cross-e x amination. See Te nn. R. Evid. 804(b)(1).

I n addition to the ge nera l rule excluding he arsay , criminal defe ndants are also g uara nteed the ri g ht to co nf

ro nt wit ne sse s ag a ins t the m. Se e U. S. Cons t. am e nd . V I (“ I n a ll c ri min a l pr os e c uti on s, the ac cused sha ll enjoy

the rig ht . . . to be confr onted with the witnesses ag ainst him

. . . .”); Te nn. Const. art. I , § 9 (“ T hat in all criminal prose cutions, the ac cused hath the rig ht . . . to meet the witnesses fa ce to f

ace . . . .”). Acc ording ly
, in c ases such as this whe re the prosec ution offer ed the former testimonyof an una vailable witness, the State must also establish two prer equisites in order to satisfy a def endant’ s constitutional right of c onfrontation. F irst, t he State must show that the de c la r a n t is tr u ly u n a v a il ab le a f

te r g o o d f a ith e f f o r ts to o b tain h is p r e s e n c e , a n d s e c o nd, that the

e vid e nc e c arrie s it s o wn ind ic ia of re lia bil ity

. Sta te v. Sum me rs , 15 9 S.W. 3d58 6, 59 7 ( Te nn . Crim.

8 App. 2004). See also State v. Arnold, 719 S.W .2d 543, 548 (Tenn. Crim. App. 1986). Wit h respe ct to the la tte r r e qu ir e me nt, the Un ite d Stat e s Supr e me Cou rt ha s re c e ntl y ma nd a te d tha t th e re lia bil ity of a prior testi monial statement i s established exclusively throug h cross-e x amination. See Craw ford v. Washington, 541 U.S. 36, 54 (2004).-9-

I n this case, it is undisputed that the decla rant wa s dece ased at the time of the Def endant’ s suppression hea

ring and tria l an d t here fore was una vailable to testify in person. As to the sec ond require ment, our supre me cou rt h as previouslyruled that the f ormer te stimonyexception to the he ars a y ru le is ba se d on suc h a firm fou nd a tio n tha t it me e ts the ind ic ia

of re lia bil ity re qu ir e me nt. Se e Sta te v. Caus by , 7 06 S.W. 2d62 8, 63 1 ( Te nn . 1 98 6) . A dd iti on a lly , th e a ud io r e c or din g of Sg t. Sims ’ t e s t i m o n y

e n t e r e d i n t o e v i d e n c e c l e ar l y c ap t u r e d t h e D e f

e n d a n t ’ s t h e n c o u n s e l c ro sse xami nin g the of

fi c e r. Th is c ro ss- e xami natio n wa s tho ro ug h a nd didind e e d r e ve a l w e akn e sse s in the offic er’ s statements, such as the fac t that the Def endant’ s statement was not rec orded via any type of ele ctronic me dia and that Sg t. Sim s failed to note the inc riminating statement in his written report

e ve n th ou g h it

wa s th e ty

pe of state me nt that w ou ld n orma lly be do c umented . U nd e r the se

c ir c ums ta nc e s, we are un wi lli ng to f indthat th e c ro ss- e xami natio n r e qu ir e me nt w a s n ot m e t. Moreove r, any

mistakes or m isstatements contained in Sgt. Sim’s testimonyg oes to the we ight of his testimony , not its admiss ibilit y , and is there fore proper ly a matter for the jury to consider. See Wil liams v. State, 520 S.W .2d 371, 374 (Tenn. Crim. App. 1974) . As such, we find the testimony met the indicia of reliability require ment nece ssary to comply

with the Def

endant’ s rig ht to confront witnesses and be admitted under the prior testimony hear say exception.

2. Def endant’ s statement was irr eleva nt or excessively prejudicia l The De fenda nt also arg ues that the statement attributed t o him by Sgt. S ims was not re levant
to his tr ia l, or if it wa s, a ny pr ob a tiv e va lue it h a d w a s o utw e ig he d b y su bs ta nti a l pr e

jud ic ia l e ff

e c t. Serg eant Sims testified that the Defenda nt made the rema rk t hat there “wa sn’t nobody g oing to make it to testi fy

ag ainst him in t he courtroom.” The State arg ues on appe al that this not so veiled threat

was re levant as it re flec ted his consciousness of g uilt. W e note that the trial court ove rruled the Def endant’ s motion t o s u p p re ss on this i ssue, finding that the statement wa s relevant as to the “mental state ” or “ g uiltyknowledg e” of the Def endant.

This Court has previously decla red that “[a]ny attempt by an ac cused to c oncea l or destroy evidenc e, including an attempt to s uppress the testimony of a witness, is releva nt as a c ircumstance from which g uilt of the acc used may be i n fe rr ed

. ” Til lery

v. State, 565 S.W .2d 509, 511 (Tenn. Crim. App. 1978). The Tenne ssee Supreme Court ha s endorse d this Court’s h o l d i n g that “[g]ener ally , evidenc e of thre ats ag ainst witnesses attributed to the a ccuse d is pr o b at ive as be ing

e ith e r ( 1) c on du c t inc on sis te nt with the a c c us e d’ s cla im of inn oc e nc e or (2 ) c on du c t c on sis te nt w ith the theory

that the making of such thre ats evince s a consc iousness of g uilt.” State v. Austin, 87 S.W .3d 447, 477 app. (Tenn. 2002) citing N eil P. Cohen et al., Tenne ssee L aw of Evidence § 4.01 (4 th e d. 20 00 )) . Ac c or din g ly , we c on c lud e that the state me nt ma de by the De fe nd a nt t o Sg t. S ims

wa s r e le va nt, a ndfu rthe r f indthat no da ng e r o f u nf a ir pr e jud ic e su bs ta nti a lly

ou tw e ig he d it s

a dmi ssi on . T he re fo re , w e c on c lud e the tr ia l c ou rt didno t e rr

in d e nying the De fe nd a nt’ s mo tio n to

e xclu de the te sti mon y

of Sg t. S ims . T his iss ue is w ith ou t me ri t.

C. Adm ission of testim ony f romthree rebuttal witnesses I n the Def endant’ s final evidentiary issue he cla ims that the trial court erre d in allowing the State to introduce the state ments of three rebuttal witnesse s , whose testimony about a prior inconsisten t s t at ement made by defe nse witness Vince Sulton, a.k.a. “V,” ref uted portions of theI t appear s t hat t he D ef endan t i s operat i ng un der t he fol l owi ng t heor y : t he vi ct i m had a g un ; t hi s gu n w as us ed 9

b y t he vi ct i m t o m urder t he D efend ant ’ s f ri end ; t hi s p ri o r murd er o ccurred onl y s everal hours bef o re t he m urder at i ss ue i n t hi s cas e; t her efore, al l owi ng t he r ebut t al wi t nes s t es t i mo ny about t he gu n “ op ene d t he do or” t o adm i s s i on of ev i dence

c o n c e rn ing this p rio r m u rd e r.

-10- testimonyMr. Sulton gave at trial. To support this claim the De fenda nt arg ues t hat t he court erre d by acc epting the re buttal testimonyas “substantive e vidence ,” and that the admis sion of the re buttal witness testimonymade the pr eviously excluded evidenc e conce rning the prior murde r re levant and there fore admissible.

Mr . Su lto n te sti fi e d at tria l th a t he too k a hand g un of f o f the vic tim , a ndhe sp e c if ic a lly denied that he obtained the g un from off of the television set in his own apartment or told any one else that he had. The Sate ca lled three rebuttal witnesse s, Ms. Turner
, Mr. Nelms and Ms. Noel, who all testified that Mr. Sulton previously informed them that he obtained the g un he had the evening of the murder from off the television set in his apartment. The State arg ues on appe al that the trial
court wa s corr ect in its determination that the r ebuttal witness testimony be prese nted to the jury as evidenc e of a

prior inconsistent statement made by defe nse wit ness M r. S ulton. This evidence , the State arg ues, is rele vant to the credibilityof Mr. Sulton’s testimony . The De fenda nt arg ues that the trial court e ntere d the re buttal testimonyas “substantive e vidence ” that the victim di d not have a g un, and this “opene d the door to evide nce of the first homicide.” 9

Tenne ssee Rules of Evidence state that the “cr edibility of a witness may be attac ked by

any party

. . . .” Tenn. R. Evid. 607. Thus, a prior inconsistent statement may be used to impea ch the

cre dibilit y

of a witness who denies having made the prior statement. See State v. J ones, 15 S.W .3d 88 0, 89 1 ( Te nn . Crim. Ap p. 19 99 ). Ad dit ion a lly , T e nn e sse e Rul e of Ev ide nc e 61 3 g ov e rn s th e us e of e xtri ns ic e vid e nc e of

a prior inc on sis te nt s ta te me nt o f a wi tne ss, a ndma nd a te s th a t su c h e xtri ns ic evidenc e is inadmissible until (1) the witness is asked whether he or she made the prior inconsistent
state me nt; a nd(2 ) the wi tne ss d e nie s ha vin g ma de the prior inc on sis te nt s tate me nt. Se e a lso Sta te v. Martin, 964 S.W.2d 564, 566-67 (Tenn. 1998).

I n this case, the r ecor d clea rly demonstrates that Mr. Sulton was a sked whe ther he made a prior inconsistent statement to his t est imony at trial, i.e., that he previously told severa l people he obtained the g un from his apa rtment and not fr om the victim as he stated for the jury . Mr. Sulton denied ha ving ma de this inconsistent statement. Acc ording ly , the trial court did not e rr by allowing the State to introduce e x trinsic evidenc e of this prior inconsistent statement in the form of r ebuttal witness testimonyfor the pur pose of attacking the cr edibilityof Mr. Sulton.

Th e De fe nd a nt is c or

re c t in his a sse rt ion that re stric tio ns on he ars a y lim it the a dmi ssi bil ity of prior inconsistent statements. The Tenne ssee Supreme Court has clarified that “prior inconsistent statements ‘a

re not to be co n s i dere d as substantive evide nce of the truth of the matter

asserted there in’” but rather

such evide nce is “ ‘limited to the function of discre diting the witness.’ ” State v. Smit h, 24 S.W .3d 274, 279 (Tenn. 2000) (quoting J ones v. L enoir City Car Works, 392 S.W .2d 671, 673 (Tenn. 1965) and Rhea v. State, 347 S.W .2d 486, 488 (Tenn. 1961)). How ever , contra ry to theT he rec o rd rev ea l s t ha t t he D efen d an t , t hro ug h co un sel, d i d o b je ct t o t he ad m i ssi o n o f t he reb utt al wit ne ss 10

t est i m o ny at t ri al
, but d i d s o ba sed o n rel evance and co ncern ove r t he ad m i ss i o n of ad d i t i o nal hears ay evi d ence. In a jury

- o ut s i d e b ar, the t ri al c o urt a greed to have t he Stat e l i m i t it s q uest i o ni ng t o only t he p ri o r i nco nsi st ent s t at em ent and i ns t r uct t he wi t nes s es t o not vol un t eer addi t i onal t es t i mo ny wh i l e on t he s t and. T hu s , t he D ef endan t di d r eques t and was
g ra n te d a re stric tio n o n the e v id e n c e su b m itt e d , b u t he d id n o t re q u e st ju ry i n stru c tio n o n the m a tter

. S e e T e n n e sse e R u le

o f E v id e n c e 1 0 5

.

M o re to the p o int, the a d m issio n o f e v id e n c e p e rta inin g to the p rio r m u rd e r is a se p a ra te issu e w h ic h w a s fully 11

a d d re sse d in a p re c e d ing se c tio n o f t h is o p inio n

.
-11- De fe nd a nt’ s c la ims , ther e is no e vid e nc e in the re c or d b e fo re thi s c ou rt that th e re bu tta l w itn e ss testimonywas a dmitted for any purpose other

than to impeach the c redibility of Mr. Sulton. Mo re ov e r, if

the De fe nd a nt w a s c on c e rn e d that the jury ma y imp ro pe rl y c on sid e r the re bu tta l w itn e ss te sti mon y a s e vid e nc e of the fa c ts state d, he ha d the du ty to m ake a

“ tim e ly ob je c tio n, ” id. , a ndto make a reque st that t h e t ri al court inst ruct the jury that the evidenc e may

only be conside red a s

re fl e c tin g up on the c re dib ili ty of the wi tn ess

. S ee Te nn . R. Ev id 1 05 (“ [w]he n e vid e nc e wh ic h is admissible

. . . for one purpose but not admissible . . . for a nother purpose is admitted, the court upon

re qu e st s ha ll r e stric t the e vid e nc e to its p ro pe r s c op e a ndins truc t th e jury a c c or din g ly .” ) ( e mph a sis

a dd e d)

. Ac c or din g ly , w e c on c lud e that th e re bu tta l witn e ss te sti mon y wa s pro pe rl y a dmi tte d in thi s

10

case for the limited purpose of attacking the cr edibilityof Mr. Sulton.

Be cause we f

ind the evidence of Mr. Sulton’s prior inconsistent statement was a dmitted for the s ole purpose of attacking his cre dibilit y and not as substantive e vidence of the fa cts rec ited, the Def endant’ s arg ument that this re buttal w itness testimony“opene d the door” to evidence of the prior murder must fa il. Ba sed on the re cord be fore this Court, we conclude that the trial court did not 11

err in admitting the re buttal witness testimony . This issue is without merit.

III. Su ff iciency of the Evid ence I n the Def

endant’ s final issue on appea l, he claims that “[w]hen the evidenc e is consider ed in its tot a lit y , no re a so na

ble jury c ou ld ha ve c on c lud e d that th e Sta te ha d p ro ve d b e y on d a re a so na ble doubt that [ the Def

endant] co m m i t t ed first deg ree murder.” I n support of this assertion, the De fe nd a nt a

rg ue s th a t th e State fai le d to pr e se nt any ph y sic a l e vid e nc e a ndthat th e e y e wi tne ss testimonysubmitt ed at tria l was conf licting a nd g ener ally

unreliable . We disag ree

.

Tenne ssee Rule of A ppellate Proc edure 13(e) presc ribes that “[f]indings of guilt in criminal actions whe ther by

the trial court or jury

shall be set aside if the evidence is insufficie nt to support the finding s by

the trier of

fac t of g uilt bey ond a re asonable doubt.” A convic ted criminal defenda nt who cha lleng es the suff

iciency of the e vidence on appea l bear s the burde n of demonstrating why the evid e n c e is in s u f

f ic ie n t t o s u p p o r t th e v e r d ic t, b e c a u s e a v e r d ic t o f

g u il t d e s tr o y s th e p r e s u mp ti on of innoce nce and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthe rs, 35 S.W .3d 516, 557-58 (Te nn. 2000); State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982) . This Court must reject a co nvicted criminal defenda nt’s challeng e to the sufficie ncy

of the e vidence if, after considering the evidenc e in a lig ht most favorable to the
prosec ution, we determine that any rational trier of fact could have found the essential elements of-12-

the crime bey ond a rea sonable doubt. See J ackson v. V irg inia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On app e a l, the Sta te is e nti tle d to the str on g est legi tim a te vie w o f the e vid e nc e a nda ll

rea sonable a nd leg itimate inf ere nces which may be draw n there from. See Carruthe rs, 35 S.W.3d at 558; Hall, 8 S.W .3d at 599. A g uilty verdic t by the trier of fac t a ccr edits the testimony of the State’s wi tne sse s a ndre so lve s a ll c on fl ic ts in the e vid e nc e in f a vo r o f the pr os e c uti on ’s the ory . Se e Sta te v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997) . Question s ab out the cre dibilit y of witnesses, the weig ht and value of

the evidenc e, as well as all fac tual issues raised by the evidenc e ar e re solved by the trier of

fac t, and this Court will not re-w eig h or re -eva luate the evidenc e. See Evans, 108 S.W .3d at 236 ; Bl an d , 958 S.W .2d at 659. Nor w ill thi s Court substi tute its own infere nces dr awn f rom circ umstantial evidence for t h ose dra wn by the trier of

fac t. See Evans, 108 S.W.3d at 236-37; Carruthe rs, 35 S.W.3d at 557.

First deg reepreme ditated murder is de fined in our criminal code as the “ preme ditated and inten ti onal killing of a nother.” Tenn. Code Ann. § 39- 13-202(a )(1) . Premeditation is further define d

a s

an ac t done af

ter the e x erc ise of re flec tion and judgme nt. [ I t] means th at t h e int ent to kill m ust have be en formed prior to the a ct itself. It is not ne ce s s ar ythat the purpose to ki l l pre-e x ist in t he mind of the a ccuse d for a ny definite pe riod of time. Th e me nta l st a te of

the a c c us e d at th e tim e the a c c us e d a lle g e dly de c ide d to kil l mu st be c are fu lly

c on sid e re d in or de r t o d e te rm ine wh e the r the accuse d w a s su ff ic ie ntl y fre e fr om excitement and passion as to be c apableof pre meditation.

I d. § 39-13-202( d). The Def endant in this case does not c halleng e on appea l that a m u rd er was committed or that it was preme ditated. Rather, the Def endant arg ues that the State fa iled to provide

su ff ic ie nt p ro of

of his ide nti ty a s the pe rp e tr a tor

. Spe c if ic a lly , the De fe nd a nt ar g ue s th a t th e Sta te failed to pre sent any

direc t phy sical evidence: no g un was produced; no fing erprints were f ound; no oth e r p hy sic a l e vid e nc e lin kin g the De fend ant to th e c ri me wa s in tr od uc e d. Th e De fe nd a nt a lso

c ha lle ng e s th e re lia

bil ity of se ve ra l w itn e sse s’ te sti mon y , not in g t hat M r. Armou r andMs. Pruitt

wer e both convicte d felons, Mr. Armour did not witness the murder, and Ms. Pruitt ’s testimony was riddled with “discr epanc ies” a nd portions were “absolutely absurd.”

I n this case, we conclude that the evidenc e wa s sufficient t o es t ab lish that the Defe ndant killed the victim intentionallyand with pre meditation. Ms. P ru i tt testified that she observe d the Def endant the night of the m urder at t he P eppertree Apartments car ry ing a l arg e gun, and saw the Def endant shoot t he victim, firing four shots. Ms. Noel conf irmed that four

shots were fired the night of the murder , and Of

fice r Hulley

testified that the shell ca sings r ecove red at the crime scene

we re c on sis te nt w ith a “ larg e c a lib e r, a uto ma tic we apo n. ” Dr

. Cha nc e llo r t e sti fi e d th a t th e vic tim die d f ro m th e g un sh ot w ou ndto h is a bd ome n. Ms. Pruitt f

urthe r t e sti fi e d th a t sh e wa s th e fi rs t to approa ch the victim, followed by “V” and the victim’s aunt. Ms. Noel confirmed that she w as the victim’s aunt, and whe n she ar rived at the scene “V” wa s t h er e along with “a g irl.” Mr. Armour testified that he ha d a conve rsation with the Def endant at some point after the murder during w hich-13-

the De fe nd a nt b ra g g e d th a t he wa s a “ kil le r, ” a ndif c on fi rm a tio n wa s nee de d Mr. Armou r n e e d o nly “ask [the re s i d en t s] i n the Peppertree about me.” O ffice r F lag g testified that seve ral months afte r the murder , when she and other uniformed of

fice rs appr oache d the Def endant, the D efe ndant ra n. Offic er Sims test i fi ed t hat the De fenda nt made the r emar k that no witness would testify at trial
ag ainst him.

A jury may infer g uilt from t h e fl ight of a suspec t if the fac ts of the situation support such an infe renc e. See State v. Z ag orski, 701 S.W .2d 808, 813 (Tenn. 1985) (“A defe ndant’s flig ht and attempts to evade arr est are rele vant as c ircumstance s from which, w hen considered with the other fac ts and circ umstances in evide nce, a jury can properly draw an infe renc e of g uilt.”). L ikewise, a s

no te d a bo ve , “ [a]n y a tte mpt by a n ac c us e d to con c e a l or de str oy e vid e nc e , inc lud ing a n att e mpt to suppress the testim o n y o f a witness” is evidence from which a jury may infer g uilt. Til lery , 565 S.W .2d at 511.

Ad dit ion a lly , th e De fe nd ant ’s emph a sis on the la c k o f p hy sic a l e vid e nc e in h is c a se is mis pla c e d, a s su c h e vid e nc e is no t re qu ir e d to up ho ld a jury ve rd ic t. Th is C ou rt ha s p re vio us ly

he ld that convictions based upon witness testimony alone are sufficie nt. See
, e.g ., State v. Wil liams, 623 S.W

. 2 d 1 1 8
, 1 2 0 ( T e n n

. Crim

. A p p

. 1 9 8 1 )

. T h e D e f e n d a n t a ls o a s k s th is Co u r t to discount the testimonyof th e S tate’s witnesse s because of “ discrepancies” or bec ause the decla rants we re the mse lve s c on vic te d f

e lon s. Ho we ve r, a s n ote d a bo ve , th is Cou rt wi ll n ot r e -w e ig h o r r e -e va luate the evidenc e. See E vans, 108 S

. W

. 3 d at 236. Furthermore , questions about the cr edibilityof witnesses, the we ight a nd value of the evidenc e, as w ell as fa ctual issues ra ised by the evidenc e ar e to be re solved by

the trier of

fac t. I d.

After considering the evidenc e in the lig ht most favorable to the State, we de termine that the Def endant has failed to de monstrate that the jury was prese nted with insuff icient eviden ce at trial to find him responsible for the mur der at i s s u e in this case. A ccor dingly , we c onclude that the evidenc e submitted at trial was le g all y s u ff i ci en t for a

rational trier

of fa ct to find the De fenda nt g uil ty of fi rs t de g re e , p re me dit a te d mu rd e r b e y on d a re a so na ble do ub t. Th is i ssu e is w ith ou t me ri t.

CO NC LU SION Ba sed on the for eg oing r easoning and authorities, the judgme nt of the trial court is affirmed.

___________________________________ DAVID H. WELLES, J UDGE