State of Tennessee v. Shaun Michael Vincent ( 2019 )

11/08/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 20, 2019 Session
STATE OF TENNESSEE v. SHAUN MICHAEL VINCENT
Appeal from the Criminal Court for Putnam County
No. 2016-CR-30 Don R. Ash, Senior Judge
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No. M2018-01654-CCA-R3-CD
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A jury convicted the Defendant, Shaun Michael Vincent, of aggravated robbery after he
brandished a baseball bat and took property from the victim, who was attempting to pay
the Defendant’s girlfriend for sexual contact. The Defendant was sentenced to serve
eleven years in confinement. On appeal, he challenges the sufficiency of the evidence
and asserts that the trial court erred in limiting cross-examination of the victim, excluding
evidence implicating the victim in prior sexual misconduct, and excluding a video of the
victim’s interactions with police. The Defendant further argues that the court erred in
denying him jury instructions regarding defense of a third person and special instructions
on aggravated robbery and that he is entitled to relief pursuant to cumulative error. After
a thorough review of the record, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Douglas K. Dennis, Cookeville, Tennessee, for the appellant, Shaun Michael Vincent.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Beth E.
Willis and Victor Gernt, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The victim in this case, Mr. Jaramiah Hruska, was an attorney who had been
implicated in prior sexual misconduct and arrested for patronizing prostitution. The State
attempted to demonstrate that on October 8, 2015, the Defendant and his co-defendant,
Ms. Britny Thompson, who were romantically involved, had schemed to place the victim
in a sexually compromising position and then to rob and extort him in the hopes that his
fear of professional reprisal would prevent him from reporting the crimes.1 The defense
attempted to show that the Defendant was aware of the victim’s past misconduct, that by
wielding the bat, he was merely protecting the co-defendant from being coerced into
sexual activity, and that he lacked the intent to deprive the victim of his property, which
the victim offered up in an attempt to escape a jealous boyfriend. In an unforeseen
clarification of the events, the interaction between the three was video recorded by the
co-defendant, although much of the video is focused on empty space and provides only
audio of the incident.
The trial court held a pretrial hearing on the State’s motion to exclude evidence of
the Board of Professional Responsibility’s (“BPR”) investigation into the victim and to
exclude the testimony of the victim’s former neighbor and the victim’s former client
regarding the victim’s past sexual misconduct. Detective Bobby Anderson of the
Cookeville Police Department testified that in July 2015, he investigated allegations that
the victim’s neighbor met the victim at his office, where he paid her for sex. The victim
initially denied having paid for sex. He ultimately acknowledged that there was an
understanding that his neighbor would have sex with him in exchange for money for her
car payments. He denied that he represented her as an attorney, but the neighbor told the
detective that the victim had given her legal advice.
The trial court made an oral and subsequent written ruling regarding the evidence
it would allow of the victim’s past misconduct. The trial court stated that it would permit
the Defendant to inquire into any leniency the victim may have received in his pending
matters or otherwise, including any agreement with the BPR and including the fact that
he was not charged with either patronizing prostitution or making a false police report in
relation to the robbery. The court also found that the Defendant could impeach the victim
with any prior statements the victim had made involving the robbery. However, the court
excluded evidence regarding the victim’s “prior prostitution activity” and the documents
produced in the BPR investigation. The court found that under Tennessee Rule of
Evidence 403, the probative value was outweighed by unfair prejudice, confusion of the
issues, and misleading the jury. The court asked the prosecutor if she objected to the
1
The trial court granted a motion to sever the defendants in part due to incriminating text
messages sent by the co-defendant to someone identified in her telephone only as “Nate,” in which she
urged him to hurry because “dude to blackmail will be here soon.”
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Defendant’s testifying that he attacked the victim knowing that the victim had sexually
exploited other women, and the prosecutor said, “We have no problem with that.”
Prior to the introduction of any proof at trial, the trial court permitted the defense
to make an offer of proof regarding the testimony of two witnesses who stated they had
been exploited by the victim. The victim’s former client testified that the victim was
appointed to be her attorney in 2012 or 2013. Despite the fact that he was her attorney
and knew she was homosexual, the victim made sexual comments to her, and the victim’s
former client told him she was in a long-term relationship. The victim’s former client
later asked the victim if he could help her with money for her child as she reported to jail,
and he offered to and ultimately did pay her for sex. She acknowledged she was taking a
medication related to opiate addiction at the time of her testimony. The victim’s
neighbor likewise testified that the victim paid her for sex after providing her legal
assistance. She testified that the victim lived next to her in public housing and that he
had offered her legal services if she should need them. He gave her free legal advice at
one point regarding a custody issue. The victim then began to send her sexual text
messages and to offer financial help at a time when she was struggling financially, and
she performed a sex act for money at his law office. She testified that she felt the victim
had taken advantage of her desperate circumstances and that she was still angry with him.
After the offer of proof, the trial proceeded with the testimony of the victim, who
stated that he was a licensed attorney currently practicing law. The victim was appointed
to represent the co-defendant in a criminal matter in 2011, and he subsequently
represented the co-defendant’s then-boyfriend, Mr. Jacob Snyder, in a limited hearing on
a furlough issue. The victim stated that he charged the co-defendant $100 for his work
on Mr. Snyder’s case and that she never paid him but had suggested “that there were
other ways to pay.” He asserted that he declined her offer and denied that he forgave the
debt in exchange for sex.
The victim claimed that he was aware the co-defendant had worked as a prostitute
in the past and that, some months prior to the robbery, she had proposed exchanging sex
for money. According to the victim, he later contacted her, and they exchanged messages
through text and Facebook for approximately a week before the robbery. The victim
acknowledged that, on the day of the robbery, he went to the co-defendant’s home
planning to have sex with her in exchange for $150. He had previously told the
co-defendant through messages that they should make a video because he believed it
would be a legal way to pay for sex.
The video of the robbery was played for the jury, and the jury was given a
transcript to assist them. The video showed the co-defendant setting up the camera
immediately prior to the arrival of the victim. The camera was pointed at a wall, and the
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co-defendant and victim were not visible for much of the recording. The co-defendant
asked the victim for the money, and he responded that it was for the video. The
co-defendant procured a condom for the victim and began to discuss her
methamphetamine charges. She asked the victim how much he would charge to represent
her, and he stated it would be “a couple of thousand” dollars, depending on the facts, but
noted that they “couldn’t do this anymore.” They discussed the facts of her cases, and the
victim instructed the co-defendant to bring him the discovery once she received it and
said they could discuss the matter. The co-defendant then offered the victim oral sex and
told him she was “about to be doing a lot better.”
At that point, the Defendant entered with a baseball bat, asked the victim if he was
preparing to have sex with the co-defendant, and ordered the victim, “Drop your sh*t.
Drop it all, money[,] watch, everything.” The co-defendant picked up the camera,
allowing the viewer to see the Defendant attacking the victim. The victim repeatedly
shouted, “Ow!” The co-defendant then placed the camera so that it was aiming mostly at
the ceiling, and little was visible after that point. The Defendant asked the co-defendant
for a knife, and the victim protested, offering the Defendant his watch. The Defendant
told him to set the watch down. The victim stated he would put on his pants and leave,
but the Defendant told him to get his wallet out and warned him, “You see the camera?....
It’s all recording….” The victim asserted he had no money and urged the Defendant to
look in his wallet.
During the interaction, the Defendant made several statements related to the
victim’s property. The victim asked for the return of his identification cards, and the
Defendant told him that he would not get anything and should leave. The victim stated
that he could not leave without his possessions or his car, and the Defendant told him to
“[b]ack the f*ck back.” The Defendant accused the victim of being a sexual deviant and
told him, “Touch that wallet and credit cards and I’ll beat your motherf***ing brains
out.” The Defendant observed that the victim had credit cards and that the Defendant
was “fixing to burn them up.” The co-defendant asked about the victim’s telephone,
prompting the Defendant to assert, “Okay, that’s mine now.”
The Defendant and co-defendant attempted to elicit incriminating statements from
the victim on tape. The Defendant accused the victim of having told the co-defendant
that he would represent her in exchange for sex, which the victim denied. The Defendant
then questioned the victim regarding Mr. Snyder’s case, and after some prodding, during
which the victim said, “Ow,” the victim stated that he and the co-defendant had had sex
in relation to Mr. Snyder’s case. The Defendant twice described the victim as “soliciting
prostitution,” once after the co-defendant asked the victim, “What [were] you giving me
one-fifty for?” The Defendant accused the victim of being a rapist and stated, “You were
raping my girlfriend when I c[a]me in here.” The victim denied it. The co-defendant told
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the Defendant that the victim had wanted sex. The Defendant asked the co-defendant if
she was being raped, and she responded, “I didn’t want it.” The Defendant then
described the situation as “two on one” and advised the victim to “pay up” in exchange
for “all the files,” assuring him, “It will be a one-time deal and it will be over with.” The
Defendant noted he had the victim’s “Facebook pictures” and referenced a picture of the
victim’s penis which the victim had sent to the co-defendant.
The Defendant asked the victim what the victim wanted to do to avoid having his
wife or the BPR find out about his plan to patronize prostitution, and the victim
responded that he was filing bankruptcy and had nothing to offer. The Defendant
demanded that the victim take out a personal loan for $5,000, and the victim stated he
would try to get money but would have to explain things to his wife. The Defendant
advised him to concoct a story and threatened to accuse him of rape if he went to the
authorities, noting, “And I understand you’re already under investigation for this sh*t
once.” The victim asked for his keys and assured the Defendant that he would tell police
an unidentified man mugged him, noting that the Defendant had “all this … evidence”
against him. The Defendant reiterated that he and the co-defendant would accuse the
victim of rape and that his prior misconduct would weigh against him.
The victim testified about the recorded events. He asserted that he did not know
that he was being recorded. According to the victim, he and the co-defendant had not
engaged in any sexual activity when the Defendant appeared, wielding a bat and
demanding that he “drop everything” including his keys, wallet, and telephone. Prior to
the Defendant’s appearance, the co-defendant had left the room twice, but the victim did
not hear any indication that someone else was in the house. However, according to the
victim, the front door had made a loud noise when he entered, and he also did not hear
the door open while he was there. The victim stated that he was able to wrestle the bat
away from the Defendant during the attack, but the Defendant threatened to use a knife
and the victim returned the bat. The victim never saw a knife. The Defendant hit the
victim with the bat and with his fists in the knees, legs, arms, hip, and head. The victim’s
injuries were not serious and consisted of a knot appearing later on his knee and head.
The Defendant demanded the victim’s possessions, including his keys, wallet, and
watch. The victim said the Defendant “may have made fun of” him for his Rugged
Warehouse credit card. The victim stated that when he gave his possessions to the
Defendant, the Defendant was standing between him and the door and had recently hit
him with the bat. The victim stated that the Defendant would not “yield” and that his
choice was either to try to fight his way out of the room or to negotiate with his property.
As he walked out, the Defendant told him that if he tried to touch his wallet, the
Defendant would “bash [his] … head in.” The victim was afraid.
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The victim testified that he had not had sex with the co-defendant as payment for
legal services for Mr. Snyder but that he confessed to doing so because the Defendant had
hit him with the bat when he denied it. The Defendant threatened to accuse the victim of
rape and report him to the BPR if he attempted to go to the authorities, and the victim
ultimately agreed to give the Defendant several thousand dollars at a later date.
The victim was able to keep his car keys and drove away. He immediately
intercepted a police officer and reported the robbery. He acknowledged that he did not
tell police that he was at the co-defendant’s residence for the purpose of patronizing
prostitution but instead told them that he went there to make a video. He admitted he was
not honest, was “disingenuous,” and that the agreement to make a video was merely as a
ruse to avoid a prostitution charge. He agreed that he repeatedly told police that the
Defendant had tried to get him to say things that were not true, and he explained that he
meant stating he had sex with the co-defendant in exchange for representing Mr. Snyder
and raping the co-defendant.
The victim agreed that he took the bat from the Defendant but stated that he was
still at a disadvantage because he was naked, trapped, and afraid of being stabbed. He
acknowledged telling a police officer that he could have killed or beaten the Defendant
but declined to do so. The victim agreed that he told police that the offenders took his
cash and wallet, but he acknowledged that he gave the co-defendant $150 voluntarily and
that he may have had his wallet and $20 in a video recorded by police equipment.
The victim agreed that the Defendant came in accusing him of raping the
co-defendant and that the co-defendant told him she “didn’t want it.” He agreed that he
told the BPR that the co-defendant was trying “to fuel [the Defendant] on” by confirming
the Defendant’s belief she was being attacked.
The victim acknowledged that he had previously been charged with prostitution
when he gave his neighbor money “and we had sex as well.” On cross-examination, he
agreed he could be disbarred for exchanging sex for legal services. He agreed he gave
his neighbor free legal advice and then had sex with her in exchange for money. He
knew that she was in financial difficulties and was physically disabled. He
acknowledged that during that investigation, he initially denied wrongdoing and that he
did not immediately report his arrest for patronizing prostitution to the BPR but only
reported it after a newspaper article detailed the events over three weeks later. He
acknowledged that he was not “forthcoming” with the BPR, that he was not sure he
admitted he had patronized prostitution, and that he probably told the BPR he was
receiving diversion. He testified that the Defendant was aware of the incident and felt the
Defendant was relying on it “to be able to get away with this.”
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The victim stated that he had reported his conviction to the BPR and was currently
attending counseling, working with a monitor in his professional life, and taking
medication for his mental health issues. He agreed that he did not initially disclose to the
BPR that the offense at issue involved prostitution and that he put the “best possible spin”
on his actions. The victim explained, “I gave the best possible version of events the way
it could be interpreted. Lie? No. Being disingenuous or dishonest? Yes.” He agreed
that he told the BPR that he did not give the co-defendant legal advice but acknowledged
that he said in the video that she should “bring it to trial.” He denied he ever intended to
exchange legal services for sex.
The victim agreed that he could have been charged with patronizing prostitution
for this incident but stated he had not received any guaranties of favorable treatment. He
acknowledged, however, that he could no longer be charged due to the statute of
limitations. He agreed that he was working with the prosecutor in the case at bar but that
his charges involving patronizing prostitution were still pending at the time of the
robbery. He did not believe that the prosecutor reported him to the BPR as required for
attempting to patronize prostitution in this case. He denied that the outcome of the BPR
investigation was conditioned on his testimony in this case.
Confronted with his Facebook messages, the victim acknowledged that his
testimony that he only began messaging the co-defendant a week before the October 8th
robbery was incorrect and that he had been sending messages, including pictures of his
naked torso and penis, to the co-defendant since August. He asserted that she requested
the pictures, but ultimately he acknowledged that he was the one who initiated a
conversation about pictures.
During cross-examination, the defense sought to introduce a police video
depicting the victim immediately after the offense. The State objected on hearsay
grounds. The Defendant argued that the videos were relevant to impeachment and to the
victim’s physical condition, present sense impression, and mental state. The trial court
stated that the defense could question the victim about inconsistent statements but could
not introduce the video as extrinsic evidence unless the victim denied the prior
statements. The court noted that the video could possibly be admitted through the police
officers.
The defense attempted to introduce the video during the testimony of Detective
Jeff Johnson of the Cookeville Police Department. Detective Johnson testified that the
victim flagged him down and reported that he had been robbed of his wallet, telephone,
and watch and that he had been hit with a bat. Detective Johnson was not on duty and
asked the victim to wait to tell the details of the incident to other officers. Detective
Johnson agreed that a condom fell out of the victim’s pants in the parking lot. The
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defense asked to introduce the video for the purpose of showing the victim’s physical
condition and for impeachment. The defense also submitted that the video was
admissible under the best evidence rule. The trial court noted that the victim had
admitted making certain false statements to police and that the video could not be
introduced as extrinsic evidence for impeachment. The trial court concluded that the
defense could play the video to show the victim’s physical condition but that the video
should be played with no sound to exclude hearsay statements.
The defense chose instead to play a video recorded by the body camera of
Sergeant Daniel Trivette. The video was played without sound and showed the victim
holding his wallet. Sergeant Trivette took the victim’s statement and was able to track
the victim’s telephone to a motel in Sparta. Sergeant Trivette agreed that the victim had
his wallet and that the victim stated he was planning to buy cigarettes.
Detective Steve Page of the White County Sheriff’s Department apprehended the
Defendant in Sparta. The Defendant jumped over a small wall and ran from Detective
Page, who ultimately found him lying on the floor of a horse trailer in possession of the
victim’s credit cards. Detective Brent Anderson of the Cookeville Police Department
collected the co-defendant’s camera, which had recorded the events, from the vehicle
used by the Defendant and co-defendant, and he collected several telephones, including
the victim’s telephone, from the vehicle.
The Defendant gave testimony supporting his theory that he was merely defending
the co-defendant and had not intended to rob the victim. He stated that he assisted the
co-defendant with rides to and from court at the time she was involved with Mr. Snyder.
One day in July, he picked her up after a meeting with the victim, and she was visibly
upset.
The Defendant knew that the co-defendant was engaged in prostitution with a
limited clientele in the past, but he stated that he and the co-defendant became
romantically involved and that at the time of the assault, she had stopped engaging in
prostitution and had become pregnant. The Defendant testified that on October 8, 2015,
he was in the co-defendant’s neighborhood. Because the co-defendant would
occasionally become unavailable by telephone, the Defendant became suspicious that she
was hiding something, either a drug habit or infidelity. The Defendant noticed that the
co-defendant’s car was parked in the driveway of a neighboring, unrented home, and he
quietly entered her home without knocking. He could hear a man in the house, and he
accordingly picked up a baseball bat which was present in the home.
The Defendant stated he could hear a conversation related to the co-defendant’s
criminal matters. He also heard the co-defendant giggle and say, “I’m about to be doing
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a lot better.” He burst into the room and observed the co-defendant’s face near the
unclothed victim. The co-defendant looked as though she were about to cry, and the
Defendant concluded she was being coerced and raped. He agreed that during the video,
he mentioned a prior investigation into the victim, noting he had read about it in the
newspaper. The Defendant stated that when the co-defendant told him that the victim
had just wanted sex, he became confused about whether the co-defendant was being
forced to do something she did not want to, and he put down the bat at that point and
calmed down. He agreed that the co-defendant was not being held down and that the
victim was not on top of the co-defendant but stated he felt she was being forced to
engage in sex.
The Defendant testified that he “tapped” the victim with the bat because the victim
had a significant size advantage. The Defendant testified that he never attempted to hurt
the victim and that he told the victim to “drop” everything not because he was attempting
to take the victim’s possessions but because he was afraid the victim was armed. The
Defendant was jealous and wanted the victim to feel helpless, but he testified that he
never intended to rob the victim. He asserted that the victim first raised the idea of
exchanging property. He also said that he did not expect to really get money from the
victim through extortion but was “just talking” and wanted to “pick on him a little more.”
He stated that he only wanted to take the victim’s pride and argued that he would not
have robbed the victim because he knew the victim could identify the co-defendant. The
Defendant testified that the victim left some of his possessions on the floor and that the
Defendant merely picked them up. He denied ever having touched the victim’s
telephone.
The Defendant acknowledged asking the co-defendant for a knife but stated there
was never a knife. He agreed that he referred to the fact that the events were being
recorded on video, but he stated he did not know if the camera was actually recording.
He explained that he observed the co-defendant touch the camera and that the co-
defendant had videotaped him with the camera in that same location. Asked how he
could have observed her touch it when he was assaulting the victim with his back to the
camera, the Defendant stated he saw that it had been moved when he turned around.
The Defendant agreed that he knew about the sexual video the victim had sent the
co-defendant. He stated he knew that the victim was an attorney and knew about the
newspaper articles written about the victim’s misconduct.
The trial court added a jury instruction on aggravated assault as a lesser included
offense but refused a special instruction on aggravated robbery and an instruction on
defense of another. The jury convicted the Defendant of aggravated robbery, and the trial
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court sentenced him to serve eleven years in confinement. The trial court denied the
Defendant’s motion for a new trial, and the Defendant appeals.
ANALYSIS
I. Sufficiency of the Evidence
The Defendant asserts that the evidence is not sufficient to support a conviction
for aggravated robbery because the State did not establish that he intended to rob the
victim of his possessions or that the property was taken by violence or putting the victim
in fear. We conclude that the evidence is sufficient.
This court must set aside a finding of guilt if the evidence is insufficient to support
the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.
13(e). The question before the appellate court is whether, after considering the evidence
in the light most favorable to the State, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. Pope, 427 S.W.3d
363, 368 (Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it
may not substitute its inferences drawn from circumstantial evidence for those drawn by
the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury’s guilty
verdict, approved by the trial judge, accredits the State’s witnesses and resolves all
conflicts in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
The trier of fact is entrusted with determinations concerning witness credibility, factual
findings, and the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing
the sufficiency of the evidence, we afford the State the strongest legitimate view of the
evidence and all reasonable inferences that can be drawn from the evidence. State v.
Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, and on appeal the
defendant has the burden of illustrating why the evidence is insufficient to support the
verdict rendered by the jury.” Reid, 91 S.W.3d at 277. “Circumstantial evidence alone is
sufficient to support a conviction, and the circumstantial evidence need not exclude every
reasonable hypothesis except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297
(Tenn. 2012).
Aggravated robbery as charged here is the “intentional or knowing theft of
property from the person of another by violence or putting the person in fear,” when the
robbery is accomplished “with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §
39-13-401(a), -402(a)(1). A deadly weapon includes “[a]nything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.” T.C.A. § 39-11-
106(a)(6)(B). Theft is committed when the offender “knowingly obtains or exercises
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control over the property without the owner’s effective consent” and “with intent to
deprive the owner of property.” T.C.A. § 39-14-103(a).
The evidence, seen in the light most favorable to the State, established that the
Defendant walked in when the victim and co-defendant were preparing to engage in
sexual activity. The Defendant began to attack the victim with the baseball bat and
ordered him to “drop” his property, listing particularly his money and watch. The victim
testified that he was afraid of the Defendant, that the Defendant would not let him leave,
and that he gave up his property due to his fear. Although the victim briefly obtained
possession of the bat, the Defendant made a threat about a knife that caused the victim to
return the bat and offer up his watch for fear of escalating the situation. The victim
expressed reluctance to leave without his possessions or car, and the Defendant told him,
“Back the f*ck back.” The Defendant also said, “Touch that wallet and credit cards and
I’ll beat your motherf***ing brains out,” and he asserted the victim’s telephone was his
and that he intended to “burn . . . up” the victim’s credit cards. The Defendant was
apprehended hiding in a horse trailer with the victim’s credit cards in his front pocket,
and the victim’s telephone was recovered from the car in which the Defendant had
traveled.
The Defendant asserts that the victim’s property was voluntarily given up by the
victim or left behind by the victim without the Defendant’s knowledge. He contends that
the force was not contemporaneous with the taking. However, the video-taped incident
establishes that the Defendant made multiple statements indicating his intention to take
the victim’s property, including describing the victim’s telephone as “mine now,” stating
he would “burn . . . up” the credit cards, and warning the victim that he would “beat [his]
. . . brains out,” if the victim retrieved his wallet and credit cards. These statements are
sufficient to support a finding that the Defendant intended to take the victim’s property
and that he did so by violence or fear. The Defendant also asserts that the State failed to
prove that the Defendant acted knowingly or intentionally, instead offering up the
defense theory that the Defendant only brandished the bat in an attempt to protect the co-
defendant. However, a rational juror could have inferred from the sum of the
Defendant’s statements, including his negotiations of money for “all the files,” and his
description of the interaction as “[s]oliciting prostitution,” that Defendant acted
knowingly in taking the victim’s property by means of the bat. The Defendant does not
contend that the baseball bat was not a deadly weapon as it was used. See State v.
Howard P. Fisher, No. M2017-00975-CCA-R3-CD, 2018 WL 3060369, at *3 (Tenn.
Crim. App. June 20, 2018), perm. app. granted (Tenn. Sept. 13, 2018) (a baseball bat
brandished from twenty feet away was a deadly weapon). A rational juror could have
inferred that the co-defendant and Defendant plotted to film the victim in a compromising
position and to take his property, relying on the victim’s desire to avoid professional
consequences to ensure his silence. The videotape and the victim’s testimony established
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that the Defendant intentionally or knowingly took the victim’s property by fear or
violence while brandishing the bat. We conclude that the evidence is sufficient to
support the verdict.
II. Cross-Examination
The Defendant asserts that the trial court erred in prohibiting him from cross-
examining the victim about the investigation conducted by the BPR, in particular
objecting to the exclusion of questions regarding the victim’s own statements and of
evidence regarding complaints made by the victim’s female clients. The Defendant also
asserts that he was prevented from questioning the victim regarding the prosecution’s
allegedly lenient treatment. He argues that the victim’s profession unfairly bolstered his
credibility and that his cross-examination would have shown that the victim was
unreliable and that the investigations provided a motivation for the victim to lie. The trial
court denied the motion for a new trial on this ground, finding that “leeway was given by
the Court in regard to the questioning of the victim” and that “counsel for Defendant
asked numerous questions regarding the Board and the victim.” We conclude that the
trial court did not abuse its discretion in placing limitations on cross-examination or in
excluding evidence under Tennessee Rule of Evidence 403.
Cross-examination is a fundament right under the Confrontation Clause of the
Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution. State v. Brown, 29 S.W.3d 427, 430-31 (Tenn. 2000). Under the
Tennessee Rules of Evidence, a witness may be cross-examined on “any matter relevant
to any issue in the case, including credibility.” Tenn. R. Evid. 611(b). Cross-
examination is permissible to show that a witness harbors bias. State v. Gilley, 297
S.W.3d 739, 765 (Tenn. Crim. App. 2008) (citing Tenn. R. Evid. 616). However,
“[w]hile the right of cross-examination is fundamental, its exercise is controlled by the
discretionary authority of the trial judge.” State v. Zirkle, 910 S.W.2d 874, 890 (Tenn.
Crim. App. 1995). Generally, “‘the propriety, scope, manner and control of the
examination of witnesses’” lies within the court’s discretion. State v. James, 315 S.W.3d
440, 460 (Tenn. 2010) (quoting State v. Caughron, 855 S.W.2d 526, 540 (Tenn. 1993)).
Accordingly, “‘a defendant’s right to confrontation does not preclude a trial court from
imposing limits upon cross-examination which take into account such factors as
harassment, prejudice, issue confrontation, witness safety, or merely repetitive or
marginally relevant interrogation.’” State v. Wyrick, 62 S.W.3d 751, 770 (Tenn. Crim.
App. 2001) (quoting State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994)). An
unreasonable restriction of the right to cross-examine witnesses constitutes an abuse of
discretion. State v. Echols, 382 S.W.3d 266, 285 (Tenn. 2012); see State v. Gentry, 538
S.W.3d 413, 429 (Tenn. 2017). Because the right is constitutional, “[w]hen a defendant
is denied the right to conduct an effective cross-examination, the conviction will stand
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only if the violation is deemed harmless beyond a reasonable doubt.” Echols, 382
S.W.3d at 285.
“Initially, proof suggesting that a witness received or had reason to expect
leniency from the State typically constitutes relevant evidence of bias.” Id. In particular,
bias may exist “when ‘a witness has a pending criminal charge in the same jurisdiction in
which he or she is testifying at trial’ due to the possibility that the prosecutor’s office
would ‘take favorable testimony into account when subsequently prosecuting the
witness’s pending charge.’” State v. Jerome Sanders, No. W2014-01513-CCA-R3-CD,
2015 WL 9433473, at *23 (Tenn. Crim. App. Dec. 23, 2015) (quoting State v. Eric James
Taylor, No. E2002-00966-CCA-R3-CD, 2003 WL 21542464, at *5 (Tenn. Crim. App.
July 9, 2003)).
Here, the trial court permitted the Defendant to cross-examine the victim regarding
any leniency or favorable treatment he received from the prosecution, including his
sentence to diversion for patronizing prostitution, the State’s failure to charge him with
any offenses committed in the incident under trial, and the prosecutor’s failure to report
his misconduct. The court also ruled that any prior statements made by the victim
concerning the robbery, including those made in the course of the BPR investigation,
would be admissible. The Defendant thoroughly cross-examined the victim at trial
regarding the charges brought against him, the inquiry conducted by the BPR, and the
potential consequences he faced as a result of the investigations. The defense highlighted
the prosecution’s decision not to bring charges against the victim for patronizing
prostitution or filing a false report and its decision not to inform the BPR of the fact that
the victim was patronizing prostitution in connection with the robbery. The Defendant
also asked the victim about statements he had made to the BPR regarding the robbery,
and the victim admitted the statements were disingenuous and dishonest. The Defendant
was able to effectively explore any possible bias stemming from these sources. See
Gentry, 538 S.W.3d at 429 (concluding that the record demonstrated that the party was
able to cross-examine the witness).
The trial court also, however, concluded that the probative value of allowing the
defense to explore in detail the victim’s prior sexual misdeeds was substantially
outweighed by unfair prejudice, confusion of the issues, and potential misleading of the
jury.2 See Tenn. R. Evid. 403; State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003)
2
We note that Tennessee Rule of Evidence 404(b), cited by the Defendant, applies only when the
prior bad acts at issue are committed by the accused. State v. Stevens, 78 S.W.3d 817, 837 (Tenn. 2002).
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(holding that decisions regarding the admissibility of evidence under Rule 403 are
reviewed for an abuse of discretion).
Although the Defendant refers generally to a sealed exhibit that was before the
trial court when the trial court made some of its evidentiary determinations, he cites to no
particular piece of evidence from that exhibit as having been improperly excluded from
cross-examination. Instead, he argues generally that he should have been permitted to
delve deeper into the investigations of the victim’s prior sexual misdeeds with clients.
However, we conclude that the trial court’s restrictions were not an unreasonable
restriction of the right of cross-examination or an abuse of discretion in the exclusion of
evidence. Echols, 382 S.W.3d at 285; Powers, 101 S.W.3d at 395.
While we do not minimize the reprehensible nature of the victim’s alleged prior
actions, the victim’s unsavory acts with “other female clients[] and female relatives of his
clients” had minimal bearing on issues relevant to trial. Any bias in the victim’s
testimony stemming from these past offenses was adequately unearthed through the
cross-examination related to lenient treatment. The victim’s own testimony operated as a
cudgel against any shred of credibility he retained as he made unsupportable distinctions
between “[l]ie[s]” and “[b]eing disingenuous or dishonest.”
The actual fact of the victim’s abuses could only have been relevant to the robbery
to the extent that the Defendant was aware of them. The Defendant claimed to have been
motivated by a desire to protect the co-defendant from a man he knew to be a predator.
Cross-examining the victim regarding the truth of the allegations or introducing records
from the BPR of which the Defendant could not have known was not relevant to the
Defendant’s mental state or to whether the Defendant committed aggravated robbery
against the victim. Contrary to the Defendant’s suggestion, the victim’s motives were not
particularly germane to the issues at trial. As revolting as the victim’s past behavior may
have been, its relevance in this case lay in the Defendant’s awareness of it, not in the
truth of any allegations made against the victim. Furthermore, the Defendant was able to
present evidence of some of the misconduct, including that the victim had been charged
with patronizing prostitution, that the charge involved acts with a neighbor to whom he
had also given legal advice, that he was not forthcoming in the subsequent investigation
into his offense, and that he could face serious consequences for further misdeeds,
particularly if they involved exchanging sex for legal services. We conclude that the trial
court did not abuse its discretion in limiting cross-examination on this subject.
III. Extrinsic Evidence of the Victim’s Sexual Misconduct
The Defendant also objects that the trial court excluded extrinsic evidence of the
victim’s improper relations with two former clients, asserting that the excluded evidence
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denied him his constitutional right to present a defense. We conclude that the extrinsic
evidence was not admissible under the Tennessee Rules of Evidence and that the
Defendant, who was able to introduce evidence supporting his theory of the case, was not
deprived of his right to present a defense.
The Sixth and Fourteenth Amendments to the United States Constitution guarantee
the accused the right to present a defense, which includes the right to present witnesses
favorable to the defense. Brown, 29 S.W.3d at 432. A denial or “‘significant
diminution’” of this right endangers the integrity of the judicial process. Id. (quoting
Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). “Although this right is critical, at
times it ‘must yield to other legitimate interests in the criminal trial process,’ including
‘established rules of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.’” Wyrick, 62 S.W.3d at 770
(quoting Brown, 29 S.W.3d at 432). “So long as the rules of procedure and evidence are
not applied arbitrarily or disproportionately to defeat the purposes they are designed to
serve, these rules do not violate a defendant’s right to present a defense.” State v. Flood,
219 S.W.3d 307, 316 (Tenn. 2007). Ordinarily, an evidentiary decision does not rise to
the level of constitutional error. Id. In determining error,
[t]he facts of each case must be considered carefully to determine whether
the constitutional right to present a defense has been violated by the
exclusion of evidence. Generally, the analysis should consider whether:
(1) the excluded evidence is critical to the defense; (2) the evidence bears
sufficient indicia of reliability; and (3) the interest supporting exclusion of
the evidence is substantially important.
Brown, 29 S.W.3d at 433-34.
The Defendant’s theory of the case was that when he saw the victim with the co-
defendant, he attacked the victim because he believed the co-defendant was being forced
or coerced into having sex. We agree with the Defendant that the Defendant’s knowledge
of the victim’s prior predatory behavior is relevant to this defense. However, the
extrinsic evidence excluded at trial and challenged on appeal has little bearing on the
Defendant’s state of mind or whether the Defendant thought that the victim was attacking
the co-defendant. The Defendant’s awareness of the prior misconduct was relevant to his
motive in brandishing the bat, but during the offer of proof, neither witness testified that
they had confided their abuse to the Defendant or that the Defendant was aware of the
victim’s offenses against them. Accordingly, their testimony would not have been
relevant to the Defendant’s motives. Neither would the victim’s own written statements
made in the course of the BPR investigation of the sexual misconduct. Moreover,
contrary to the Defendant’s claim, the victim’s motives in coming to the trailer had little
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bearing on whether the Defendant’s acts of subsequently brandishing a bat and
demanding the victim’s possessions constituted aggravated robbery. Accordingly, the
evidence was not critical to the defense, and the interest supporting its exclusion on the
basis of unfair prejudice, confusion of the issues, and potential misleading of the jury was
substantially important. See Flood, 219 S.W.3d at 316-18 (holding there was no error in
excluding evidence that was not critical to the defense); Tenn. R. Evid. 403.
The Defendant asserts that he should have been allowed to present extrinsic
evidence of the victim’s misdeeds under Tennessee Rule of Evidence 616. Rule 616
provides that “[a] party may offer evidence by cross-examination, extrinsic evidence, or
both, that a witness is biased in favor of or prejudiced against a party or another witness.”
Rule 616 relates to extrinsic evidence of bias or prejudice, but the testimony of the two
witnesses and the victim’s statements to the BPR regarding the women’s allegations
instead showed sexual misconduct and had no bearing on bias. See Tenn. R. Evid. 616.
Insofar as the Defendant argues that the victim’s neighbor’s testimony would have been
extrinsic impeachment evidence regarding the victim’s past denial of patronizing
prostitution, the victim acknowledged his prior inconsistent statements. See Tenn. R.
Evid. 613(b); 608(b).
Furthermore, the video established that the Defendant was aware that the victim
was already under investigation, that he was accusing the victim of rape, and that the co-
defendant told him she “didn’t want it.” The Defendant was also able to testify that the
co-defendant looked as though she were about to cry and that he had read about the
investigation into the victim’s offenses in the newspaper. The victim himself agreed that
the co-defendant appeared “to fuel [the Defendant] on” by confirming his allegation of
rape. The Defendant also testified that he ordered the victim to “drop” his property
because he was concerned about the possibility that the victim had a weapon.
Accordingly, the Defendant was not deprived of his ability to present his defense when
the trial court excluded the two witnesses and his statements made in the course of the
BPR investigation regarding past misconduct.
IV. Police Video
The Defendant contends that the trial court erroneously excluded a “dashcam”3
video from evidence. He asserts that the video would have proven inculpatory because it
would have shown that the victim retained his wallet, would have demonstrated that the
victim lied to police about his purpose in going to the co-defendant’s home, and would
3
The record contains a video, taken from a police officer’s body camera, in which the victim
falsely stated he went to the co-defendant’s home for the purpose of making a video. There is no
“dashcam” video in the record.
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have demonstrated that the victim continuously hounded the responding officers to
inform them that the Defendant had forced him to make a false confession. The
Defendant further states the video would have shown the victim’s physical state.
However, the Defendant has not demonstrated that the entire video was admissible under
the Tennessee Rules of Evidence, and he was permitted to introduce portions of the
video. We conclude that the trial court did not err in limiting the video proof.
At trial, the State objected to the introduction of the statements from the video for
the purposes of impeachment, although it noted it had no objection to showing a brief
portion of the video demonstrating that the victim had retained his wallet. The Defendant
did not offer the court a rationale for admitting the statements on the video other than that
the video would show the victim’s physical state, impeach him with inconsistent
statements and the presence of his wallet, and provide the “best evidence” of the events.
The trial judge told the defense, “I want to help you,” but observed that the evidence was
not admissible to impeach the victim when the victim had admitted making the prior
inconsistent statements. The trial court held that it would permit the defense to play the
video without the sound in order to show the victim’s physical state and wallet but that
the Defendant had not articulated a rationale to admit the victim’s hearsay statements.
The Defendant proceeded to play a recording which showed the victim’s physical
appearance and possession of his wallet.
On appeal, the Defendant relies on Kirkendoll v. State, 281 S.W.2d 243, 252
(Tenn. 1955), in which the Tennessee Supreme Court permitted the defendant’s own
tape-recorded confession to be played during trial. That case is inapposite, because it
concerned an admission by a party-opponent rather than extrinsic evidence of a prior
inconsistent statement from a witness. See Tenn. R. Evid. 803(1.2) (an admission by a
party-opponent is an exception to hearsay). “Extrinsic evidence of a prior inconsistent
statement remains inadmissible when a witness unequivocally admits to having made the
prior statement.” State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998); see State v. Foust,
482 S.W.3d 20, 39 (Tenn. Crim. App. 2015); Tenn. R. Evid. 613(b). The victim freely
admitted to having lied on numerous occasions, including in the interaction recorded by
police video. He particularly acknowledged that he falsely told police he went to the co-
defendant’s home to make a video when in fact he went to patronize prostitution. His
statement to police that the Defendant forced him into a false confession was consistent
with his testimony at trial. Accordingly, extrinsic evidence of the statements was not
admissible pursuant to Rule 613(b). The Defendant references the best evidence rule,
which provides that “[t]o prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as otherwise provided in
these rules or by Act of Congress or the Tennessee Legislature.” Tenn. R. Evid. 1002.
However, Rule 1002 concerns the method by which a statement is to be put before the
jury, not the admissibility of the underlying statement, which is still subject to the rule
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against hearsay and other rules of evidence. See Iloube v. Cain, 397 S.W.3d 597, 602
(Tenn. Ct. App. 2012) (“The best evidence rule is a rule of preference rather than
exclusion.”); State v. Carroll, 36 S.W.3d 854, 867 (Tenn. Crim. App. 1999) (“[T]he
satisfaction of one rule of evidence does not necessarily preclude the exclusion of
evidence pursuant to another rule.”). The Defendant has not advanced another ground for
admitting the statements at trial or on appeal, and he was permitted to introduce the video
without sound to demonstrate the victim’s physical appearance and the victim’s
possession of his wallet. The Defendant is not entitled to relief.
V. Defense of Another Jury Instructions
The Defendant asserts that the trial court erred in denying him jury instructions
which could have allowed the jury to conclude that his conduct was justified as the
defense of another. The State responds that the proof did not fairly raise the issue of
defense of another. Because there was no evidence that the Defendant’s use of force was
to protect against the victim’s use or attempted use of force, we conclude that the trial
court did not err in refusing to give the instruction.
A statutory justification for the defendant’s conduct provides a complete defense.
T.C.A. § 39-11-601 (“It is a defense to prosecution that the conduct of the person is
justified under this part.”). When admissible evidence is introduced supporting a
defense, the State must negate the defense beyond a reasonable doubt. T.C.A. § 39-11-
201(a)(3), -203(d); State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).
The Defendant here submits that he was threatening or using force against the
victim to protect the co-defendant. Tennessee Code Annotated section 39-11-612
provides:
A person is justified in threatening or using force against another to protect
a third person, if:
(1) Under the circumstances as the person reasonably believes them to be,
the person would be justified under § 39-11-611 in threatening or using
force to protect against the use or attempted use of unlawful force
reasonably believed to be threatening the third person sought to be
protected; and
(2) The person reasonably believes that the intervention is immediately
necessary to protect the third person.
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T.C.A. § 39-11-612. Section 611 outlines the requirements for the justification of self-
defense, which permits the use or threatened use of either force or force intended or likely
to cause to cause death or serious bodily injury in certain circumstances.
“The issue of the existence of a defense is not submitted to the jury unless it is
fairly raised by the proof.” T.C.A. § 39-11-203(c). The threshold question of whether a
defense has been fairly raised by the evidence is a question for the judge to determine.
State v. Blackmon, 78 S.W.3d 322, 331 (Tenn. Crim. App. 2001). “The quantum of proof
necessary to fairly raise a general defense is less than that required to establish a
proposition by a preponderance of the evidence.” State v. Hawkins, 406 S.W.3d 121, 129
(Tenn. 2013). Instead, a court must consider the evidence in the light most favorable to
the defendant, drawing all reasonable inferences in favor of the defense. Bledsoe, 226
S.W.3d at 355; State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993).
“This is because it would be improper for a court to withhold a defense from the jury’s
consideration because of judicial questioning of any witness credibility.” State v. Bult,
989 S.W.2d 730, 733 (Tenn. Crim. App. 1998). If the proof fairly raises the defense, the
trial court must instruct the jury to determine whether the defense has been negated.
Blackmon, 78 S.W.3d at 331.
The evidence at trial, seen in the light most favorable to the Defendant, established
that the Defendant was aware that the victim had behaved in a predatory manner toward
his clients, including the co-defendant. The Defendant knew that the victim had sent
messages and a picture of his penis to the co-defendant. The Defendant entered the co-
defendant’s home and heard a man’s voice. The co-defendant and the man were
discussing the co-defendant’s pending criminal matters, and he heard the co-defendant
giggle and state, “I’m about to be doing a lot better.” The Defendant burst in and saw the
co-defendant near the naked victim, looking as though she were about to cry and as
though she “didn’t want to be doing what she was doing.” He then attacked the victim,
who immediately responded, “I’ll get the f*** out of here.” The Defendant continued to
hit the victim, while instructing him to drop his money, watch, and other possessions.
The statute establishing the justification of defense of another requires that the
force used by the accused be for the purpose of protecting “against the use or attempted
use of unlawful force reasonably believed to be threatening the third person sought to be
protected.” T.C.A. § 39-11-612(1). It likewise requires a reasonable belief “that the
intervention is immediately necessary to protect the third person.” T.C.A. § 39-11-
612(2). Force is defined as “compulsion by the use of physical power or violence and
shall be broadly construed to accomplish the purposes of this title.” T.C.A. § 39-11-
106(a)(12).
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While the proof seen in the light most favorable to the Defendant certainly
included evidence from which the jury could have drawn the inference that the Defendant
believed that the co-defendant was being coerced into a sexual relationship, there was
simply nothing in the record from which the jury could have concluded that the
Defendant reasonably believed that his use of force was immediately necessary to protect
the co-defendant from any use of force by the victim. The record is devoid of evidence to
support an inference that the victim used physical power or violence or to support an
inference that the Defendant reasonably believed that his intervention was necessary to
protect the co-defendant from the victim’s use of physical power or violence.
Accordingly, the trial court did not err in refusing the instruction. See Bult, 989 S.W.2d
at 733 (concluding that the defense of another was not fairly raised because there was no
evidence of imminent danger when the defendant asserted that he was acting for his
child’s welfare and safety in kicking in a bedroom door to exercise visitation when she
had been removed to the bedroom by her mother and grandmother and was crying and
upset).
VI. Aggravated Robbery Instructions
The Defendant asserts that the trial court erred in not giving special instructions he
had requested for the aggravated robbery charge. The State responds that the issue is
waived and without merit. Because there is nothing in the record to indicate what the
special instructions sought by the defense were, we conclude that the issue is waived.
Generally, the trial court has a duty to give a correct and complete charge of the
applicable law. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). The right to a
correct and complete charge is constitutional, and each issue of fact raised by the
evidence should be submitted to the jury with proper instructions. State v. Dorantes, 331
S.W.3d 370, 390 (Tenn. 2011). Special instructions are intended “‘to supply an omission
or correct a mistake made in the general charge, to present a material question not treated
in the general charge, or to limit, extend, eliminate, or more accurately define a
proposition already submitted to the jury.’” Id. (quoting State v. Cozart, 54 S.W.3d 242,
245 (Tenn. 2001)). It is error to refuse a special instruction only when the standard
charge, read as a whole, does not fully and fairly provide the applicable law. State v.
Adams, 405 S.W.3d 641, 661 (Tenn. 2013). Jury instructions must be reviewed in their
entirety, with no phrase examined in isolation. State v. Rimmer, 250 S.W.3d 12, 31
(Tenn. 2008).
Tennessee Rule of Criminal Procedure 30 provides that “any party may file
written requests that the court instruct the jury on the law as set forth in the requests.”
Tenn. R. Crim. P. 30(a)(1). “It is the burden of the Appellant to prepare a full and
complete record for appellate review.” State v. Banks, 271 S.W.3d 90, 169 (Tenn. 2008)
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(appendix); see Tenn. R. App. P. 24(b) (“[T]he appellant shall have prepared a transcript
of such part of the evidence or proceedings as is necessary to convey a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of
appeal.”). Accordingly, the failure to prepare a proper record results in waiver. State v.
Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000).
The Defendant asserts in his brief that he requested in writing for the court to
instruct the jury that “a robbery accomplished with a deadly weapon is complete once the
accused has completed his theft of all the property he intended to steal,” in accordance
with the recent decision in State v. Henderson, 531 S.W.3d 687, 698 (Tenn. 2017). The
record of the pretrial hearings reflects that the Defendant asked for an instruction and
referred to Henderson, but it does not reflect what specific instruction the Defendant
sought. The jury was instructed that “[t]he alleged fear or violence used in the taking of
the property must precede, accompany, or occur at the same time as the taking to
constitute an element of aggravated robbery.” We conclude that the failure to include the
requested instruction in the record constitutes waiver of the issue on appeal, and
accordingly, the Defendant is not entitled to relief.
VII. Cumulative Error
The Defendant also asserts that he is entitled to relief based on the sum of
cumulative error. The doctrine of cumulative error recognizes that “there may be
multiple errors committed in trial proceedings, each of which in isolation constitutes
mere harmless error, but which when aggregated, have a cumulative effect on the
proceedings so great as to require reversal in order to preserve a defendant’s right to a fair
trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). The doctrine of cumulative error
only applies when there has been more than one error committed during trial. State v.
Herron, 461 S.W.3d 890, 910 (Tenn. 2015). Accordingly, the Defendant is not in this
case entitled to relief.
CONCLUSION
Based on the foregoing reasoning, we affirm the judgment of the trial court.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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