State of Tennessee v. Gerald Dewayne Triplett ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 3, 2015
STATE OF TENNESSEE v. GERALD DEWAYNE TRIPLETT
Appeal from the Circuit Court for Madison County
No. 14453 Roy B. Morgan, Jr., Judge
No. W2015-00163-CCA-R3-CD - Filed December 29, 2015
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Defendant, Gerald Dewayne Triplett, appeals his conviction for one count of being a
felon in possession of a firearm. Defendant raises the following issues on appeal: (1) that
the trial court erred in its evidentiary rulings with regard to hearsay statements and
impeachment of a witness with a prior inconsistent statement; (2) that the evidence is
insufficient to sustain his conviction; and (3) that the trial court erred in denying his
motion for judgment of acquittal. Based upon our review of the record, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR., and ALAN E. GLENN, JJ., joined.
Andrea Sipes Lester, Jackson, Tennessee, for the appellant, Gerald Dewayne Triplett.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Rolf G.S. Hazelhurst,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
This is Defendant‟s direct appeal of his conviction for being a felon in possession
of a firearm.
On September 2, 2014, the Madison County Grand Jury indicted Defendant on one
count of aggravated assault, one count of unlawful possession of a weapon, and one count
of being a felon in possession of a firearm.1 On September 11, 2014, the State filed a
motion to nolle prosequi the count of unlawful possession of a weapon, which was
granted by the trial court.
At trial, the State presented the testimony of the extremely reluctant victim, Sonda
Triplett, the estranged wife of Defendant. Ms. Triplett admitted that she drove to her
mother-in-law‟s house on November 29, 2013, in order to see her children. While she
was in the driveway talking to her children, Defendant drove up in a car belonging to his
mother and parked directly behind her car. Defendant confronted Ms. Triplett, and they
exchanged some words. Because Defendant‟s car was blocking the driveway, Ms.
Triplett drove away through the front yard. According to the police report, Defendant
went back to the car he had been driving, retrieved a black handgun, and pointed it at Ms.
Triplett.
Ms. Triplett and her daughter both called the police, and Ms. Triplett was still at
the scene when the police arrived. Ms. Triplett testified at trial that she did not see a gun
in Defendant‟s hand, despite the statement she gave to police indicating otherwise. The
State used the statement in the police report, which Ms. Triplett signed, as a prior
inconsistent statement to impeach Ms. Triplett‟s trial testimony. She testified that other
witnesses at the scene had told her that Defendant had a gun, and that the statement in the
police report was a compilation of the statements of several witnesses. Ms. Triplett
denied that the Defendant said, “Bitch, I‟m going to kill you,” but she did recall
Defendant‟s telling her that she was trespassing. Ms. Triplett also denied seeing her son
jump in front of Defendant and say, “Don‟t kill my mom.” Ms. Triplett eventually
admitted telling the police that Defendant ran back to his car, pulled out a gun, and
pointed it at her as she was driving away, though she later clarified that she had “seen
something” but did not know what it was. Ms. Triplett denied that she was in fear.
On cross-examination, Ms. Triplett again stated that there were several people in
the yard and that the statement in the police report was a compilation of all of their
statements. On redirect examination, Ms. Triplett admitted that she instructed the officer
to search Defendant‟s mother‟s car. Ms. Triplett also admitted that the car that the officer
searched was the car that Defendant had been driving.
1
Defendant was initially indicted in case number 14-238, and the State subsequently re-indicted
him in this case (case number 14-453). The proceedings of the prior case were transferred to this case,
but the prior indictment is not included in the record on appeal.
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The State next presented the testimony of Officer Kelvin Hulsey of the Jackson
Police Department. Officer Hulsey testified that on November 29, 2013, he was
dispatched around 1:00 p.m. on a disturbance involving a handgun. When the officer
arrived on the scene, Defendant was sitting on the porch of the residence, approximately
fifteen to twenty feet away from the car. Officer Hulsey described Ms. Triplett as upset
and “a little scared” when he arrived on the scene. Officer Hulsey testified that he took
the victim‟s statement, placed Defendant under arrest, and then searched the car. Officer
Hulsey explained that witnesses at the scene reported that Defendant had been driving the
car, that Defendant had not gone into the house, and that a black handgun “had to be in
the car still.” Officer Hulsey found a black Springfield Armor .40 caliber semiautomatic
handgun in the car‟s glove box. The gun was loaded with a 12-round magazine, and an
additional 12-round magazine was next to the gun in the glove box.
On cross-examination, Officer Hulsey admitted that he did not check to see who
the car was registered to, though he recalled Defendant‟s saying that it was his mother‟s
car. Officer Hulsey denied knowing how many people had access to the car. Officer
Hulsey had to “jimmy” the lock to get into the car, causing a little bit of damage; Officer
Hulsey did not attempt to contact Defendant‟s mother before searching the car. Officer
Hulsey also did not attempt to determine who the gun was registered to, and the gun was
not fingerprinted.
The State entered into evidence a copy of the judgment sheet of Defendant‟s 1987
conviction for an aggravated assault committed with a knife.
At the close of the State‟s case, Defendant made a motion for judgment of
acquittal. The trial court granted the motion with respect to the aggravated assault
charge, finding that the State had failed to prove at least two essential elements when Ms.
Triplett denied seeing the gun and denied being in fear. The trial court denied the motion
with respect to the charge of being a felon in possession of a firearm. Defendant waived
his right to testify and did not present any proof.
The jury convicted Defendant as charged of one count of being a felon in
possession of a firearm. The trial court held a sentencing hearing on October 14, 2014,
and sentenced Defendant as a Range I, standard offender to three years to serve at thirty
percent. Defendant filed a motion for new trial on October 27, 2014. The trial court held
a hearing on December 8, 2014, and entered and order denying the motion of January 13,
2015. Defendant filed a timely notice of appeal.
Analysis
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On appeal, Defendant argues that the trial court erred in its evidentiary rulings
regarding the victim‟s prior inconsistent statement and other hearsay. Defendant also
challenges the sufficiency of the evidence and argues that the trial court erred in denying
his motion for judgment of acquittal with regard to the charge of being a felon in
possession of a firearm.2
I. Evidentiary Rulings
Defendant argues that the trial court improperly admitted hearsay during the
testimony of Officer Hulsey and that the trial court erred in permitting the State to read
the victim‟s statement to the jury. The State responds that there was no error in the
admission of evidence at trial.
Initially, we note that Defendant did not include citations to the record in this
portion of his appellate brief. The Rules of Appellate Procedure require that the
argument section of briefs include “citations to the authorities and appropriate references
to the record (which may be quoted verbatim) relied on.” Tenn. R. App. P. 27(a)(7).
Defendant risks waiver of this issue for failing to cite to the relevant portions of the
record. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this court.”). However, the State did not argue for waiver of this issue. Therefore, we
will address this issue on the merits.
Hearsay is “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). Hearsay is generally not admissible. Tenn. R. Evid. 802. “Our rules of
evidence provide for the admission of hearsay statements, however, pursuant to the
exceptions set forth in Rules 803 and 804.” State v. Davis, 466 S.W.3d 49, 61 (Tenn.
2015). Although the definition of hearsay “appears straightforward, many statements can
be offered to prove more than one thing.” Pylant v. State, 263 S.W.3d 854, 870 (Tenn.
2008).
With regard to a trial court‟s rulings with regard to hearsay, our supreme court has
recently announced the following standard of review:
The standard of review for rulings on hearsay evidence has multiple layers.
Initially, the trial court must determine whether the statement is hearsay. If
the statement is hearsay, then the trial court must then determine whether
the hearsay statement fits within one of the exceptions. To answer these
questions, the trial court may need to receive evidence and hear testimony.
2
For the purpose of clarity, we have reordered the issues as raised by the Defendant in his brief.
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When the trial court makes factual findings and credibility determinations
in the course of ruling on an evidentiary motion, these factual and
credibility findings are binding on a reviewing court unless the evidence in
the record preponderates against them. Once the trial court has made its
factual findings, the next questions—whether the facts prove that the
statement (1) was hearsay and (2) fits under one the exceptions to the
hearsay rule—are questions of law subject to de novo review.
Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015) (internal citations omitted), cert.
denied, 2015 WL 5032354 (U.S. Oct. 13, 2015).
A. Hearsay During Officer Hulsey’s Testimony
Defendant asserts that the trial court erred in allowing the State to read portions of
the victim‟s statement during the testimony of Officer Hulsey. The State argues that the
trial court properly sustained Defendant‟s objection at trial and that the State abandoned
this line of questioning and did not ask Officer Hulsey any other questions about what
Ms. Triplett told him. Upon our review of the transcript, we agree with the State.
The State asked Officer Hulsey if he interviewed Ms. Triplett and asked, “At the
very beginning, what was the first thing she said?” Defense counsel objected before
Officer Hulsey could respond. The trial court held a bench conference and instructed the
State that it could only ask Officer Hulsey about specific statements Ms. Triplett denied
having made. Thereafter, the State did not ask Officer Hulsey any further questions
about what Ms. Triplett told him.
Extrinsic evidence of a prior inconsistent statement by a witness is admissible if
the witness denied having made the statement. Tenn. R. Evid. 613(b). The trial court
properly ruled that the State could not ask Officer Hulsey about statements Ms. Triplett
admitted making. Additionally, the State did not ask Officer Hulsey about any of the
statements Ms. Triplett made, even those she denied. Therefore, this evidence never
came in, and there was no error.
Defendant also argues that the trial court erred in permitting Officer Hulsey to
testify as to statements made to him by witnesses regarding the location of the gun. The
State responds that the statement was not offered for the truth of the matter asserted, but
rather to explain why Officer Hulsey searched the particular car that he did. This Court
has previously held that “when the statement was admitted to show an officer‟s reason for
doing something based on the statement, the statement is admissible because the
testimony is not being offered to prove the truth of the matter asserted by the out-of-court
declarant,” assuming that the elicited information is relevant. State v. Tony Curtis
Holmes, No. W2007-02733-CCA-R3-CD, 2009 WL 3047007, at *4 (Tenn. Crim. App.
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Sept. 24, 2009) (citing State v. Miller, 737 S.W.2d 556, 559 (Tenn. Crim. App. 1987)),
perm. app. denied (Tenn. Mar. 15, 2010). In this case, Officer Hulsey testified that he
searched the car because the witnesses indicated that it was the car that had been driven
by Defendant and that “the gun had to be in the car still.” We agree that this statement
was not offered to prove the truth of the matter asserted; therefore, it is not hearsay and
there was no error.
B. Impeachment of Ms. Triplett with her Prior Inconsistent Statement
Defendant argues that the trial court erred in allowing the State to read portions of
Ms. Triplett‟s statement in the police report. The State responds that it did not read Ms.
Triplett‟s statement into evidence, but rather used it to impeach her testimony. We agree
with the State.
Extrinsic evidence of a witness‟s prior inconsistent statement is admissible only if
“the witness is afforded an opportunity to explain or deny the same and the opposite party
is afforded an opportunity to interrogate the witness thereon, or the interests of justice
otherwise require.” Tenn. R. Evid. 613(b). Generally, evidence of a prior inconsistent
statement is “admissible only for the purpose of impeachment and not as substantive
evidence.” State v. Kiser, 284 S.W.3d 227, 266 (Tenn. 2009). However, the evidence
may be used as substantive evidence if the additional requirements of Tennessee Rule of
Evidence 803(26) are met. A prior statement is considered inconsistent if “a witness
claims at trial to be unable to remember” the events that were the subject of the prior
statement. Davis, 466 S.W.3d at 64.
In this case, the State heavily used Ms. Triplett‟s statement to the police in order to
impeach her trial testimony. The State asked Ms. Triplett whether she remembered the
various details of the incident as she had related them to the police. The State also asked
Ms. Triplett whether she made each prior statement, thereby giving her the “opportunity
to explain or deny” each statement. The State attempted to have Ms. Triplett read her
statement to the jury, but the trial court sustained Defendant‟s objection. The trial court
instructed the State that it could only offer extrinsic evidence of statements which Ms.
Triplett denied having made. There was no error, and Defendant is not entitled to relief.
II. Sufficiency of the Evidence
Defendant argues that the evidence presented at trial was insufficient to convict
him of the offense of being a felon in possession of a firearm. Specifically, Defendant
argues that there was no proof that he possessed the handgun because Ms. Triplett denied
personally seeing him with the gun and the car it was found in was not registered to him.
The State argues that the evidence is sufficient. We agree with the State.
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When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question
the reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury‟s verdict replaces
the presumption of innocence with one of guilt; therefore, the burden is shifted onto the
defendant to show that the evidence introduced at trial was insufficient to support such a
verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to
the “strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role of this
Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for
those drawn from the evidence by the trier of fact. Reid, 91 S.W.3d at 277. Questions
concerning the “credibility of the witnesses, the weight to be given their testimony, and
the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of
fact.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell,
245 S.W.3d 331, 335 (Tenn.2008)). “A guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the prosecution‟s theory.” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). This standard of review applies whether the conviction
is based upon direct evidence, circumstantial evidence, or a combination of the two.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009).
Under Tennessee Code Annotated section 39-17-1307(b)(1)(A), it is an offense for
a person who “[h]as been convicted of a felony involving the use or attempted use of
force, violence, or a deadly weapon” to possess a firearm. In order to be convicted under
this section, the State must prove “(1) the Appellant possessed a handgun and (2) was
previously „convicted of a felony involving the use or attempted use of force, violence or
a deadly weapon.‟” State v. Ronald Killebrew, No. W2003-02008-CCA-R3-CD, 2004
WL 1196098, at *2 (Tenn. Crim. App. May 26, 2004) (quoting T.C.A. § 39-17-
1307(b)(1)(A)).
In this case, there is no dispute that Defendant was convicted in 1987 of
aggravated assault and that the assault was alleged to have been committed with a knife, a
deadly weapon. The only issue is whether the Defendant was in possession of the
handgun. Possession may be either actual or constructive. State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001). Constructive possession requires proof that a person had “the power
and intention at a given time to exercise dominion and control over [the weapon] either
directly or through others.” Id. (quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn.
Crim. App. 1997)). In essence, constructive possession is the ability to reduce an object
to actual possession. State v. Brown, 915 S.W.2d 3, 7 (Tenn. Crim. App. 1995).
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“Elements of possession for purposes of constructive possession are questions of fact for
the jury and are rarely susceptible to direct proof.” Ronald Killebrew, 2004 WL
1196098, at *3.
In Ronald Killebrew, this Court found the evidence sufficient to sustain a
conviction of being a felon in possession of a weapon on remarkably similar facts to this
case:
The evidence presented at trial showed that Memphis police officers
responded to a call at the Bluff City Barbecue. Upon arrival, there were
fifteen to twenty people present in the parking lot. The police spoke with
the complainant. The officers were informed that they were searching for a
black handgun and were directed towards the Appellant, who appeared to
be intoxicated. When the officers could not locate a weapon on the
Appellant‟s person or in the general area, they asked bystanders at the scene
for assistance. They were led to the Appellant‟s vehicle, which the
Appellant admitted belonged to him. After the Appellant consented to a
search of his vehicle, Officer Gibbs found a black nine-millimeter handgun
under the front passenger seat. Upon release of the safety the weapon was
“ready to fire,” as it had one live round in the chamber and seven other live
rounds in the magazine.
Id. at *2. This Court found that the jury, by its verdict, rejected the testimony of the
defendant‟s wife that she had purchased the gun and placed it in the vehicle without the
defendant‟s knowledge. Id. at *3.
In this case, the handgun was found in the car Defendant was driving. Although
the car was registered in his mother‟s name, Defendant never denied that he was driving
that car. Ms. Triplett testified that Defendant drove up in that car and that she saw him
get something out of that car. When the car was searched, a loaded semiautomatic
handgun was found in the glove box. Though Ms. Triplett denied seeing Defendant in
possession of the gun, she stated that her children told her he had a gun, and Defendant
did not object to this testimony at trial. See State v. Smith, 24 S.W.3d 274, 280 (Tenn.
2000) (“When a party does not object to the admissibility of evidence, though, the
evidence becomes admissible notwithstanding any other Rule of Evidence to the
contrary, and the jury may consider that evidence for its „natural probative effects as if it
were in law admissible.‟”)(quoting State v. Harrington, 627 S.W.2d 345, 348 (Tenn.
1981)). Even though the gun was not in Defendant‟s actual possession by the time the
police arrived, the jury, by its verdict, found that the gun was in Defendant‟s constructive
possession. Therefore, the evidence is sufficient to support Defendant‟s conviction for
being a felon in possession of a firearm.
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III. Motion for Judgment of Acquittal
Defendant argues that the trial court erred when it denied his motion for judgment
of acquittal with regard to the charge of being a felon in possession of a firearm. The
State responds that Defendant did not provide a sufficient record of the arguments on the
motion for this Court to be able to review his claim. We agree with the State.
Defendant is required to prepare “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.” Tenn. R. App. P.
24(b). The transcript of the trial does not include the arguments of counsel made in
support of the motion for judgment of acquittal, only the trial court‟s ruling on the
motion. Without a record of the arguments presented to the trial court, this Court cannot
review Defendant‟s claim that the trial court erroneously denied his motion. See State v.
Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005); State v. Ballard, 855 S.W.2d 557, 560-61
(Tenn. 1993). Therefore, this issue is waived.
Even if we were to consider this issue on the merits, Defendant would still not be
entitled to relief. Rule 29(b) of the Tennessee Rules of Criminal Procedure “empowers
the trial judge to direct a judgment of acquittal when the evidence is insufficient to
warrant a conviction either at the time the [S]tate rests or at the conclusion of all the
evidence.” State v. James, 315 S.W.3d 440, 455 (Tenn. 2010) (citing Overturf v. State,
571 S.W.2d 837, 839 & n.2 (Tenn. 1978)). The standard by which the trial court
determines a motion for judgment of acquittal is identical to the standard which applies
on appeal in determining the sufficiency of the evidence after a conviction. Id. at 455.
Because we have already determined that the evidence is sufficient to support
Defendant‟s conviction, the trial court did not err in denying his motion for judgment of
acquittal.
Conclusion
Based on the foregoing and the record as a whole, we affirm the judgment of the
trial court.
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TIMOTHY L. EASTER, JUDGE
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