State of Tennessee v. Corey Young ( 2022 )

07/14/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 18, 2022 Session1
STATE OF TENNESSEE v. COREY YOUNG
Appeal from the Criminal Court for Shelby County
No. C1802280, 18-01293 W. Mark Ward, Judge
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No. W2020-01173-CCA-R3-CD
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A jury convicted the Defendant, Corey Young, of possession of three hundred grams or
more of methamphetamine with the intent to sell in a school zone, a Class A felony;
possession of three hundred grams or more of methamphetamine with the intent to
deliver in a school zone, a Class A felony; two counts of possession of a firearm with the
intent to go armed during the commission of or attempt to commit a dangerous felony, a
Class D felony; and two counts of possession of a firearm after having been convicted of
a felony drug offense, a Class C felony. He received an effective sentence of forty-one
years. On appeal, the Defendant challenges the sufficiency of the evidence and asserts
that his right to confront witnesses was violated. After a thorough review of the record,
we affirm the Defendant’s convictions and remand for correction of the judgment forms.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.
William F. Walsh, IV (on appeal), and Brett Stein and Robert Golder (at trial), Memphis,
Tennessee, for the appellant, Corey Young.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree and
Paige Munn, Assistant District Attorneys General, for the appellee, State of Tennessee.
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This case was heard at the historic courtroom at the University of Memphis Cecil B. Humphreys
School of Law.
OPINION
FACTUAL AND PROCEDURAL HISTORY
Officers with the Memphis Police Department (“MPD”) discovered almost 4,000
grams of methamphetamine and two firearms in an unclaimed bag while conducting
searches pursuant to consent on an interstate bus. They later connected the bag to the
Defendant, and he was charged with the offenses at issue on appeal. The Defendant
asserted at trial that the State had not established beyond a reasonable doubt that he
possessed the drugs or weapons.
During the State’s opening statement, the prosecutor anticipated proof showing
that law enforcement first connected the Defendant with the bag containing the
contraband when other passengers gave a description of the bag’s owner. The Defendant
objected based on hearsay, and the State countered that the statement was not offered for
the truth of the matter asserted. The trial court gave a limiting instruction to the jury,
informing them that “if evidence is presented in the course of this trial as to what these
officers were told, I’ll tell you again at that time that it’s not being offered for the truth of
what was said, but to explain why the officers did what they did.”
Detective R. Tabor, Officer Andre Nash, and Sergeant Shannon Bowen of the
organized crime unit of the MPD were tasked with conducting “safety checks” of certain
incoming interstate buses. Because bus policy prohibited passengers from disembarking
before the luggage under the bus was removed, officers would board buses during this
period of time, announce they were asking for cooperation in a “voluntary search,” and
ask the waiting passengers individually for permission to search their carry-on baggage.
If permission was refused, officers did not conduct a search.
On January 14, 2018, Detective Tabor, Officer Nash, and Sergeant Bowen were at
the bus station, wearing police uniforms and observing the arrival of a bus en route from
Texas. Although it was nighttime and the bus windows were tinted, Officer Nash
observed a person running from the lower level of the bus to the upper level. Detective
Tabor and Sergeant Bowen boarded the bus from the front, and Officer Nash boarded
from the back. The lower level of the bus had only approximately four passengers.
Officer Nash saw an empty seat containing a red-and-black, Polo-brand duffel bag.
Because no one was near the bag, law enforcement made an announcement asking if
anyone claimed the bag. No one downstairs claimed the bag, and Officer Nash
proceeded upstairs.
Upstairs, Officer Nash saw about fifteen to twenty passengers, and he asked if
anyone had left a bag downstairs. Again, no one claimed the bag. At this point, law
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enforcement looked inside the bag and discovered firearms and what appeared to be
significant amount of methamphetamine in gallon-sized zippered bags. Officer Nash
observed a .40 caliber Glock and a .45 caliber Glock, as well as extended magazines
which would hold more bullets than the magazines used by Memphis police officers.
Forensic analysis revealed that the substance in zippered bags was 3,953 grams of one-
hundred-percent pure methamphetamine.
Officer Nash and Sergeant Bowen went upstairs, leaving Detective Tabor with the
bag. Detective Tabor testified that while she was in the lower level, some passengers told
her that the bag belonged to a man upstairs, and they described his clothing. The defense
objected based on hearsay and lack of personal knowledge. The trial court explained to
the jury that normally, the jury would not be able to consider out-of-court statements for
the truth of the matter asserted. The court explained the evidence to the jurors:
But, on the other hand, sometimes we let these out-of-court
statements in, not to show the truth of what the person was saying, but to
explain why, in this case, the officers took the actions that they did. Any
statements that these other passengers made are hearsay and are not to be
considered by you for the truth of the matter asserted, but simply to explain
why the officers did what they did next. Did that make any sense to you?
Okay. So, you’re not to consider what the passenger said as proving
who had the bag, but to explain why the officers did what they did next.
Okay?
Detective Tabor then elaborated that the passengers told her the bag belonged to a man
wearing a “red jacket with sparkles on it.”
Detective Tabor acknowledged she did not obtain the contact information of the
witnesses who linked the bag to the man in the red jacket with gold glitter, and she
explained that they wished to remain anonymous. Her practice was to retrieve contact
information from witnesses “[i]f they would like to give it” and that if witnesses did not
want to give contact information, she would note that in her report. Officer Nash also
testified that Detective Tabor relayed the description of the bag’s owner which she had
obtained from the passengers. The court again issued a limiting instruction:
Ladies and gentlemen, once again, I remind you that what the person on
the bus, or people on the bus, told Sergeant Bowen [sic] is hearsay. It’s not
admitted for purposes of the truth of it being said, but just to show why the
officers did what they did.
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Officer Nash then testified that he received information which Detective Tabor had
obtained from anonymous passengers and that, based on the information, he went upstairs
and looked for someone in a red jacket with gold glitter on it.
Officer Nash and Sergeant Bowen both testified that the Defendant was the only
person on the bus with a red jacket adorned with gold glitter, and they testified he was
wearing tan pants. Sergeant Bowen testified the Defendant also wore red Air Jordan
shoes and a red hat. The Defendant was sitting upstairs close to the staircase by himself.
The Defendant denied ownership of the Polo bag, and Officer Nash noticed that he
appeared to be shaking. The red-and-black Polo bag, in addition to methamphetamine
and firearms, contained a pair of men’s Michael Adams boxer briefs in a size extra-large,
with “Michael Adams” printed in large letters on the waistband. Photographs of the
contents of the bag were introduced at trial. Officer Nash testified that the Defendant’s
pants were sagging and that Officer Nash was able to determine that the Defendant was
wearing the same brand and type of underwear. Officer Nash volunteered that the
Defendant had “gained a few pounds” since the offense, but he identified the Defendant
at trial.
Officer Nash and Sergeant Bowen both testified that the Defendant told them that
he boarded the bus in Little Rock. Sergeant Bowen contacted one of the bus company’s
safety directors and asked him to review video of passengers boarding in Little Rock to
determine if anyone in a red jacket carrying a red-and-black bag boarded the bus. The
safety director was unable to find anyone matching that description boarding the bus in
Little Rock. Because there was insufficient proof tying the Defendant to the bag, law
enforcement took the Defendant’s contact information and did not detain him further.
Officer Nash testified that, while they spoke to the Defendant, a car kept circling the
parking lot and that the Defendant told law enforcement that that was “his ride.” The
occupants of the car never approached, and the car left.
The following day, Sergeant Bowen came in contact with the bus driver who had
driven the bus on which the Defendant and the methamphetamine traveled. The bus
driver told Sergeant Bowen that he recalled the Defendant boarding the bus in Grand
Prairie, Texas. The bus company was able to provide Sergeant Bowen a short clip of the
video of passengers boarding in Grand Prairie, Texas. The video was introduced into
evidence, and it shows a man in a red jacket with a glittery gold design boarding the bus
with the Polo bag and proceeding upstairs. The man’s face is obscured by a hat, and he is
wearing tan pants. Sergeant Bowen testified that the man in the video sat in the same seat
in which the Defendant was sitting when they first came into contact with the Defendant,
and he testified he was able to recognize the man in the video as the Defendant through
his clothing. Officer Nash also confirmed that he had viewed the video and that the
person boarding the bus with the red-and-black Polo bag was wearing the same clothing
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that the Defendant wore on January 14, 2018. The law enforcement officers agreed that
they never saw the Defendant in possession of the red-and-black Polo bag while they
were on the bus.
Ms. Robin Hulley, an investigator with the district attorney’s office, testified that
the bus station was next to a hotel, and a middle school was on the other side of the hotel.
Ms. Hulley used a device to measure the distance between the school and the bus station,
and she testified that the distance was 528 feet. The school was operating at the time of
the offenses.
Lieutenant Brian Nemec testified as an expert in street-level narcotics. He stated
that methamphetamine was generally consumed in quantities of 0.2 or 0.3 grams per use
and that some users would habitually use one or two grams per day. He testified that the
street value of methamphetamine was at an all-time low, that the quantity seized in the
Polo bag would be worth around $60,000 at the time of trial, and that the drugs would
have been worth more at the time of the offenses. He testified that a drug user would
normally carry paraphernalia for use, such as pipes or syringes, would not carry a
significant amount of cash, and would only have a small amount of methamphetamine. A
seller would typically have large quantities of the drug, large quantities of cash, firearms,
and paraphernalia such as scales, bags, and a vacuum sealer. He opined that the drugs in
the Polo bag were for resale.
The Defendant testified that the bag did not belong to him. He stated that he
boarded the bus in Dallas with a Nike bag which was stored under the bus and that he had
no carry-on luggage. He described his clothing as a red Bulls jacket, a pair of black
pants, and red Air Jordan shoes. He said he was not wearing a hat. The Defendant noted
that he switched seats from downstairs to upstairs during the multi-hour ride because
when he disembarked at a stop in Arkansas, someone took his seat. He denied having
been on the lower floor when the bus arrived in Memphis and denied being the person
who ran up the stairs. The Defendant allowed law enforcement to search the bag he had
stowed under the bus, which contained only clothing. He testified that the bag contained
Hanes brand underwear in a size 2X. The Defendant testified that he weighed around
310 pounds and had weighed around 300 pounds in 2018. He denied wearing a red-and-
gold jacket with glitter. The Defendant asserted that three people sitting upstairs in the
bus had on red jackets. He agreed that he was not permitted to possess a handgun. The
Defendant denied having told police he boarded in Little Rock and denied telling police
that the car circling the parking lot was his “ride.” He agreed that he had approximately
$2,000 in his pocket when he spoke to police.
In rebuttal, Officer Nash affirmed that the Defendant was wearing a red-and-gold
jacket, tan pants, and red Air Jordan shoes. He testified that the Defendant’s luggage,
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which had been stored under the bus, had the same extra-large Michael Adams underwear
which was in the Polo bag with the drugs and guns and which the Defendant was also
wearing. He noted that he had detained the Defendant in the back of his patrol vehicle
and could clearly see the brand of the Defendant’s underwear because the Defendant’s
pants were sagging. He testified that the Defendant had gained weight since the offenses,
and he stated that at the time the drugs were seized, he had noted the Defendant’s weight
from his identification as 240 pounds. Officer Nash testified that the Defendant was
wearing a hat on the bus and that the face of the man with the Polo bag was obscured by a
hat in the video. Both Officer Nash and Sergeant Bowen testified on rebuttal that based
on the Defendant’s very distinctive jacket, the Defendant was the man in the video
carrying the Polo bag. Both testified that no one else on the bus wore a similar jacket.
Sergeant Bowen stated that the Defendant told law enforcement he boarded in Little
Rock, and both Sergeant Bowen and Officer Nash testified that he identified the car in the
parking lot as his ride. Officer Nash agreed there were no drugs in the bag which the
Defendant had kept under the bus.
The Defendant was charged in Counts 5 and 6 with possession of a .40 caliber
Glock and a .45 caliber Glock after having been convicted of a felony drug offense, the
nature and date of which were specified in the indictment. The parties entered a
stipulation at trial that the Defendant had a qualifying felony for the offenses charging
unlawful possession of a firearm after having been convicted of a felony drug offense, a
Class C felony. T.C.A. § 39-17-1307(b)(1)(B) (2018). The prosecutor noted that
possession of a firearm after having been convicted of a prior violent felony would be a
Class B felony and that possession of a handgun with an unspecified prior felony would
constitute a Class E felony. T.C.A. § 39-17-1307(b)(2), (b)(3), (c). The parties
determined that the stipulation would not specify that the prior felony was a drug felony,
and the court noted it would “treat it as a C felony.”
The jury convicted the Defendant of the charged offenses. Due to lack of notice
from the State, the Defendant was sentenced as a Range I offender, but the trial court
noted at sentencing that the Defendant would qualify to be a career offender. The court
applied as enhancement a prior history of criminal convictions, failure to comply with
terms of release into the community, and committing the offenses while on parole.
T.C.A. § 40-35-114 (1), (8), (13). The trial court merged the drug offenses and sentenced
the Defendant to serve twenty-five years. It orally sentenced the Defendant to ten years
for each count of possession of a weapon during the commission of a dangerous felony
and to two years for each count of possessing a firearm having been convicted of a
felony, running all the sentences consecutively. At a later hearing but prior to the entry
of judgment forms, the court revisited these determinations, noting that the convictions
on Counts 3 and 4 were for possession and not employment of a firearm during the
commission of a dangerous felony, and reducing the sentences in each of those counts to
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five years. See T.C.A. § 39-17-1324(a), (g)(2), (i)(1)(L) (2018). The trial court imposed
a sentence of three years for each conviction of possession of a firearm after having been
convicted of a drug felony. The sentences of twenty-five years for the drug offense, five
years for each conviction for possession of a firearm during the commission of a
dangerous felony, and three years for each possession of a firearm after having been
convicted of a drug felony were all run consecutively for an effective forty-one-year
sentence. In the written motion for a new trial, the Defendant challenged the sufficiency
of the evidence, the denial of a motion to suppress, and the admission of expert testimony
regarding street-level narcotics. The trial court denied the motion for a new trial, and the
Defendant appeals.
ANALYSIS
On appeal, the Defendant asserts that the evidence is insufficient to support his
conviction and that his right to confront witnesses under the United States and Tennessee
Constitutions was violated when law enforcement testified regarding the passengers’
descriptions of the man with the Polo bag. We conclude that the evidence is sufficient
and that the Defendant is not entitled to plain error relief based on the admission of
statements not offered for the truth of the matter asserted.
I. Sufficiency of the Evidence
The Defendant asserts that the State did not prove beyond a reasonable doubt that
he possessed the bag in question or, alternatively, that the bag contained contraband at the
time he possessed it. We agree with the State that the evidence was sufficient to support
the convictions.
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 viewing 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.
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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).
For Count 1, a Class A felony, the State had to establish that the Defendant
knowingly possessed three hundred grams or more of methamphetamine with the intent
to sell and that the violation occurred within one thousand feet of the real property
comprising a school.2 T.C.A. § 39-17-434(a)(4); T.C.A. § 39-17-417(a)(3), (j)(10)
(2018); T.C.A. § 39-17-432(b)(1) (2018). For Count 2, a Class A felony, the State had to
establish that the Defendant knowingly possessed three hundred grams or more of
methamphetamine with the intent to deliver and that the violation occurred within one
thousand feet of the real property comprising a school. T.C.A. § 39-17-434(a)(4); T.C.A.
§ 39-17-417(a)(2), (j)(10); T.C.A. § 39-17-432(b)(1). For Counts 3 and 4, Class D
felonies, the State had to show that the Defendant possessed the .40 and .45 caliber
firearms with the intent to go armed during the commission of or attempt to commit the
drug felonies. T.C.A. § 39-17-1324(a), (i)(1)(L) (2018). For Counts 5 and 6, Class C
felonies, the State had to prove that the Defendant unlawfully possessed the .40 and .45
caliber firearms after having been convicted of a felony drug offense. T.C.A. § 39-17-
1307(b)(1)(B), (b)(3) (2018).
Possession may be either actual or constructive. State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001). “‘A person who knowingly has direct physical control over a thing, at
a given time, is then in actual possession of it.’” State v. Edmondson, 231 S.W.3d 925,
928 (Tenn. 2007) (quoting Black’s Law Dictionary 1163 (6th ed. 1990)).
“‘[C]onstructive possession is the ability to reduce an object to actual possession.’” State
v. Harvell, 415 S.W.3d 853, 860 (Tenn. Crim. App. 2010) (quoting State v. Cooper, 736
S.W.2d 125, 129 (Tenn. Crim. App. 1987)).
Identity is an essential element of every crime. State v. Bell, 512 S.W.3d 167, 198
(Tenn. 2015). The identification of the perpetrator of a crime is a question of fact for the
jury. Id. In resolving questions of fact, such as the identity of the perpetrator, “‘the jury
2
The offenses were committed and sentences imposed prior to an amendment in the drug-free
school zones law reducing the zone to five hundred feet and otherwise affecting sentencing. See 2020
Tenn. Pub. Acts, ch. 803, §§ 1 to 9 (eff. Sept. 1, 2020). This statute was recently amended to permit a
defendant sentenced for conduct occurring prior to September 1, 2020, to move for resentencing. T.C.A.
§ 39-17-432(h) (2022).
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bears the responsibility of evaluating the conflicting evidence and accrediting the
testimony of the most plausible witnesses.’” State v. Pope, 427 S.W.3d 363, 369 (Tenn.
2013) (quoting State v. Hornsby, 858 S.W.2d 892, 897 (Tenn. 1993)). Circumstantial
evidence may establish identity. See Bell, 512 S.W.3d at 198-99 (concluding
circumstantial evidence that the defendant was the perpetrator was sufficient to uphold
the verdict).
Seen in the light most favorable to the State, the evidence established that a man
boarded the bus in Grand Prairie, Texas, carrying the red-and-black Polo bag. While the
man’s face was obscured by his hat, he wore tan pants and a particularly distinctive,
bright red jacket with a glittery gold design on it. The Defendant was wearing tan pants,
a hat, Michael Adams brand underwear, and the same very distinctive jacket as the man
boarding the bus with the bag on the video. No one on the bus other than the Defendant
had a jacket similar to the very distinctive jacket worn by the man who had boarded with
the Polo bag. The man on the video sat in the same seat in which the Defendant was
sitting when he was approached by law enforcement in Memphis. When the bus arrived
in Memphis and advanced toward the uniformed officers, Officer Nash saw someone run
from the lower level, away from the vicinity of the seat where the Polo bag was found, to
the upper level, where the Defendant was seated. The Defendant carried almost $2,000
in cash, and the baggage he identified as his, which had been stowed under the bus,
contained Michael Adams brand underwear. The Polo bag contained almost 4,000 grams
of methamphetamine, two firearms with ammunition, and some Michael Adams brand
underwear. The Defendant told police he boarded the bus in Little Rock, and the car
which he identified as his “ride” left while he was temporarily detained. A rational trier
of fact could have inferred beyond a reasonable doubt that the Defendant was the person
who boarded the bus with the bag full of methamphetamine and firearms and that, prior
to observing law enforcement and abandoning the bag, he was in actual possession of the
bag of methamphetamine and firearms as the bus approached the Memphis bus station,
which was within 1,000 feet of a middle school. See, e.g., State v. Andrew Young
Johnson, No. E1999-00002-CCA-R3-CD, 2000 WL 420662, at *7 (Tenn. Crim. App.
Apr. 18, 2000) (the evidence was sufficient for the jury to accept that the defendant was
the perpetrator who fired the weapon when the co-defendants wore distinguishable
jackets and the identification was based on the defendant’s Michigan jacket). The
Defendant stipulated that he had a prior “qualifying felony offense.” We conclude that
the evidence is sufficient to support the convictions.
The judgment forms for Counts 5 and 6 indicate the felony classification using a
circle around Class “E” and a circle which is crossed out around Class “C.” Accordingly,
the judgment forms indicate that the Defendant is a Range I offender convicted of a Class
E felony, but the forms reflect sentences of three years in Counts 5 and 6. A Range I
sentence for a Class E felony is not less than one or more than two years. T.C.A. § 40-
-9-
35-112(a)(5). It appears from the transcripts of the sentencing hearings that the trial
court, with the State’s approbation, believed the offenses were Class E felonies during the
initial sentencing hearing, when it imposed two-year sentences. At the second sentencing
hearing, the court found the offenses were Class C felonies, noting that the indictment
charged the Defendant with possessing a firearm “having been convicted of … a felony
drug offense” and that the parties stipulated to a “qualifying felony offense.” See T.C.A.
§ 39-17-1307(b)(1)(B), (b)(3), (c) (possession of a handgun after a prior felony
conviction is a Class E felony, but possession of a firearm after a felony drug conviction
is a Class C felony). It appears that the felony classification reflected on the judgment
forms is incorrect and that the Defendant was convicted of a Class C felony. We remand
for correction of the forms.
II. Confrontation
The Defendant next asserts that his right to confront witnesses against him was
violated. He requests plain error relief. We agree with the State that the Defendant
cannot establish plain error in the admission of statements which were not offered for the
truth of the matter asserted.
At trial, the State introduced evidence that passengers seated on the lower level of
the bus told Detective Tabor that the Polo bag belonged to a man in a red jacket with gold
glitter. The Defendant objected based on hearsay, and the trial court gave limiting
instructions each time the evidence was referenced, in particular instructing the jury that
it was “not to consider what the passenger said as proving who had the bag, but to explain
why the officers did what they did next.”
On appeal, the Defendant challenges the testimony as violating his right to
confront witnesses. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. However, at
trial, the Defendant’s objection to these statements on a hearsay basis only, and he did not
raise the issue in the motion for a new trial. Accordingly, the issue is waived. See Tenn.
R. App. P. 3(e); State v. Howard, 504 S.W.3d 260, 277 (Tenn. 2016) (“It is well-settled
that a defendant may not advocate a different or novel position on appeal.”); State v.
Charles Clevenger, No. E2013-00770-CCA-R3CD, 2014 WL 107984, at *5 (Tenn. Crim.
App. Jan. 13, 2014) (challenge under the Confrontation Clause was waived when the
statement was only challenged as hearsay at trial). The Defendant requests plain error
relief. For an error to constitute plain error sufficient to merit relief, the following factors
must be present: (1) the record must clearly establish what occurred in the trial court; (2)
a clear and unequivocal rule of law must have been breached; (3) a substantial right of the
accused must have been adversely affected; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is necessary to do substantial justice.
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). Additionally, “‘the
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plain error must be of such a great magnitude that it probably changed the outcome of the
trial.’” State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014) (quoting Adkisson, 899 S.W.2d
at 642). A court need not consider all the factors if it is clear that the defendant will fail
to establish at least one. State v. Jordan, 325 S.W.3d 1, 58 (Tenn. 2010).
While the State notes the Defendant failed to specify the objectionable statements
in his brief, we observe that the Defendant cited to the pages in the record where the
parties disputed the admission of the anonymous passengers’ descriptions and the
Defendant described the objectionable testimony as “descriptive evidence of the alleged
culprit in a way that happened to describe Appellant.” We conclude the Defendant’s
brief is sufficient for us to determine that he requests relief based on the testimony that
anonymous passengers described the man with the Polo bag as wearing a red jacket with
gold glitter.
However, we agree with the State that the Defendant cannot establish plain error
because no clear and unequivocal rule of law was breached. Testimonial statements
made by witnesses who do not appear at trial may only be admitted where the declarant is
unavailable and the defendant has had a prior opportunity to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 59 (2004). However, “the Confrontation Clause
‘does not bar the use of testimonial statements for purposes other than establishing the
truth of the matter asserted.’” State v. Franklin, 308 S.W.3d 799, 810 (Tenn. 2010)
(quoting Crawford, 541 U.S. at 59 n.9). “Accordingly, since Crawford, federal and state
courts alike have found no Confrontation Clause violation where the out-of-court
statement—whether testimonial or not—was admitted for some purpose other than the
truth of the matter asserted.” Id.; see State v. Dotson, 450 S.W.3d 1, 64 (Tenn. 2014)
(“Furthermore, the Crawford Court explained that the Confrontation Clause is not
violated when testimonial statements are admitted for purposes other than establishing
the truth of the matter asserted.”).
“Therefore … before we address whether the [evidence] is ‘testimonial,’ we must
first satisfy ourselves that the statement is hearsay and thus potentially eligible for
Confrontation Clause protection.” Franklin, 308 S.W.3d at 810-11. Here, the State did
not offer the statement for the truth of the matter asserted (that the Polo bag belonged to
the man in the red jacket with glitter), but to show the effect on the listener (why officers
approached the Defendant). While 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), “[a] statement introduced for its effect on the
listener is not hearsay.” State v. Eddie Harris, No. W2017-01706-CCA-R3-CD, 2018
WL 6012620, at *9 (Tenn. Crim. App. Nov. 15, 2018) (citing State v. Venable, 606
S.W.2d 298, 301 (Tenn. Crim. App. 1980); Neil P. Cohen et al., Tennessee Law of
Evidence § 8.01, at 8-23 (5th ed. 2005)).
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The trial court properly limited the jury’s consideration of the evidence to exclude
the truth of the matter asserted each time the evidence was referenced. The trial court did
not merely refer generally to “the truth of the matter asserted” but went further to clarify
to the jury that it was “not to consider what the passenger said as proving who had the
bag, but to explain why the officers did what they did next.” Because the statement was
not offered for the truth of the matter asserted, there was no confrontation violation, and
the Defendant cannot show that a clear and unequivocal rule of law was breached. See
Franklin, 308 S.W.3d at 810. The Defendant is not entitled to relief.
CONCLUSION
Based on the foregoing, the convictions and sentences are affirmed. The case is
remanded for correction of the judgment forms in Counts 5 and 6.
____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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