State of Tennessee v. Jeffery Yates

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 3, 2005

STATE OF TENNESSEE v. JEFFERY YATES

Direct Appeal from the Criminal Court for Shelby County
No. 02-00754 Joseph B. Dailey, Judge

No. W2003-02422-CCA-MR3-CD - Filed July 21, 2005

The Defendant, Jeffery Yates, was convicted by a jury of aggravated robbery. The trial court
sentenced him as a Range III, career offender to thirty years in the Department of Correction. In this
direct appeal, the Defendant raises the following challenges to his conviction: (1) the sufficiency
of the evidence; (2) the trial court’s handling of the victim’s statement to the police; (3) the trial
court’s admission of testimony regarding the Defendant’s involvement in a prostitution sting; (4) the
trial court’s refusal to allow the Defendant to cross-examine his co-defendant about gang affiliation;
(5) the trial court’s decision to allow the State to cross-examine the Defendant about prior
convictions; and (6) the trial court’s failure to instruct the jury on the lesser-included offense of theft.
Finding no reversible error in the issues raised by the Defendant, we affirm the judgment of the trial
court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOHN
EVERETT WILLIAMS, J., joined.

Chris J. Lareau (on appeal) and Michael E. Scholl (at trial), Memphis, Tennessee, for the appellant,
Jeffery Yates.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jennifer Nichols and Steve Jones, Assistant
District Attorneys General, for the appellee, State of Tennessee.
 OPINION

FACTS

The victim of the aggravated robbery in this case, Chandera McCracken, testified that, on the
night of August 24, 2001, she was living with her boyfriend, Leremy Bogard. Mr. Bogard’s brother,
Pinkie Wilson, also stayed there frequently. On the night in question, however, Ms. McCracken was
alone. At about eleven o’clock that evening, Ms. McCracken heard a knock on the front door. She
looked through the peep hole and observed a man she knew named Mike Key. Mr. Key asked her
if a girl named Alicia stayed there. Ms. McCracken responded in the negative and Mr. Key left.

Ms. McCracken resumed her household chores and then lay down on the couch. She fell
asleep and was awakened an hour or two later by “a big pounding on the door.” Two men came in
through the door and Ms. McCracken “woke up to a gun in [her] face,” held by Mr. Key. Mr. Key
told her, “You better tell me where the dope money - I’ll kill you, weak-ass nigger. Where the shit
at?” As Mr. Key accosted her, his cohort was going through other rooms in the house. Mr. Key
grabbed Ms. McCracken around the neck and took her into the bedroom where his accomplice was.
Ms. McCracken testified that this other man was wearing a bandana around the lower half of his
face, covering “an inch of the nose.” Nevertheless, she recognized him as a friend of her friend
Shamere Talley. Ms. McCracken identified this individual at trial as the Defendant.

Mr. Key demanded that she show them where the “dope” was and she directed them to a
closet in the bedroom. From the closet, the men retrieved some cocaine, some money, and a coat.
Mr. Key then threw Ms. McCracken face down across the bed. Ms. McCracken testified that the
Defendant said, “You need to tie her m****r-f*****g ass up. We’re gonna kill her ass.” Mr. Key
then duct-taped Ms. McCracken’s hands and feet together and one of the men pulled her pants down.
As she continued to lay on the bed, she heard the two men running through the house. Mr. Key
periodically returned to the bedroom and threatened to shoot her if she moved.

About forty-five minutes after the break-in occurred, Mr. Wilson returned home. Ms.
McCracken heard him pull into the driveway and then heard the Defendant and Mr. Key leave the
house through the back door. Mr. Wilson entered the house and found Ms. McCracken. He untaped
her and they went next door to call the police.

After the police arrived, Ms. McCracken told them that one of her assailants was Mike Key.
She also showed them where Mr. Key’s mother lived, which was nearby. She told them that she
knew of the other suspect, but she did not at that time know his name. The police officers took
photographs of the front door, disturbed furniture, and the duct tape with which she had been bound.
On September 3, 2001, Ms. McCracken viewed a photographic array containing Mr. Key’s
photograph, and she identified him as one of her assailants. She also viewed another array
containing the Defendant’s photograph, and she identified him as her other assailant.

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 Ms. McCracken stated that she had seen the Defendant three or four times before the break-
in. She recognized him during the offense because of his eyes, his build, his height, and his
complexion.

On cross-examination, Ms. McCracken admitted to having pled guilty in May 2002 to theft
of property under $500. She further admitted that she obtained the Defendant’s name from a
girlfriend before she identified him to the police.

Pinkie Wilson testified that, on the night in question, he went to a high school football game
and then to a friend’s house. He returned home between twelve-thirty and one o’clock that morning.
When he got home, he saw that the front door had been kicked in, with the deadbolt still in the
locked position. When he went in, he found Ms. McCracken “lying on the bed taped up.” Her pants
had been pulled down and she was crying. The house was also in disarray, with “everything . . . on
the floor and stuff.” The back door was open. Mr. Wilson freed Ms. McCracken and they then went
next door, where he called the police.

Officer Alvin Peppers testified that he collected the evidence at the crime scene. When he
arrived, he noticed that the front door appeared to have been kicked in, as it had shoe prints on it.
The locking mechanism was in place, the door facing was laying on the floor, and there was
extensive damage to the door. The house appeared to have been ransacked, with items of furniture
overturned and the rooms in disarray. He took several photographs of the scene, but determined that
there were no good surfaces from which to collect fingerprints. He collected the duct tape with
which the victim had been bound.

Lieutenant Jeffrey Polk testified that he met with the victim on September 3, 2001, and took
her statement. He also presented her with a photographic array containing the Defendant’s
photograph. He stated that the victim had called him the day before and provided him with the
Defendant’s name. The photographic array contained six photographs. The victim used a sheet of
paper to cover the lower half of the subjects’ faces while she viewed the array. She then identified
the Defendant. Lt. Polk stated that Ms. McCracken was “firm” in her identification.

Lt. Polk first spoke with Ms. McCracken on the day of the crime. When he asked her about
the circumstances surrounding the robbery, she initially told him that her boyfriend sometimes sold
drugs. She then “became reluctant to go forward . . . and told [him] there was too much confusion
about all of this.” About a week later, Ms. McCracken contacted him and told him that she wanted
to prosecute. She also gave him the Defendant’s name.

Upon determining that the suspects were Michael Key and the Defendant, Lt. Polk obtained
warrants for their arrests on September 11, 2001. He distributed a “broadcast” to uniform patrol
containing the suspects’ last-known addresses, physical descriptions and photographs in an effort
to apprehend them. Michael Key was arrested on October 3, 2001, and Lt. Polk interviewed him the
next day. Mr. Key gave a written statement at that time.

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 On cross-examination, Lt. Polk acknowledged that Ms. McCracken initially described the
second assailant to the reporting officers as a black male, about twenty-two years old, five feet eleven
inches tall, slim build, “bright-skinned” wearing a “doo-rag” on his head, black jeans, black T-shirt,
and a black bandana tied below his eyes. She also told the officers that this second assailant had not
been armed. When Lt. Polk spoke with her directly the first time, she gave him Michael Key’s name
but did not give him the Defendant’s name or state that she knew him. She also stated during this
initial conversation that money and a jacket had been stolen, but did not state that drugs had been
stolen.

Officer Jonas Holgoin testified that, on the night of September 21, 2001, he was working on
a prostitution sting operation. The operation involved a female undercover officer agreeing to
provide sex for money to a customer. The agreement was reached in the front of a hotel and the
customer was then sent to the rear of the hotel. Officer Holgoin was waiting in the parking lot to
“takedown” the customers as they made their way to the back of the hotel. Officer Holgoin and
Detective Boyce were notified to take down a particular black male and as they began to do so, the
suspect looked at them, turned, and jumped a wooden fence. The officers announced who they were
and gave chase. They jumped the fence and found themselves in a thickly wooded area. They
continued to chase the suspect for an hour to an hour and a half.

Eventually, Officer Holgoin was able to grab the suspect by the leg and a struggle ensued
during which the suspect struck Officer Holgoin in the head. Officer Holgoin testified that “[i]t was
very difficult to take him into custody.” Officer Holgoin was eventually able to handcuff the suspect.
Officer Holgoin identified the Defendant at trial as the suspect that he captured.

On cross-examination, Officer Holgoin acknowledged that he had not been looking for the
Defendant that night. He chased the Defendant because he was identified as a suspect in the
prostitution sting, not because of an arrest warrant concerning the robbery. Officer Holgoin did not
find out about the arrest warrant until after he had taken the Defendant into custody.

Trent Hall testified that he became Michael Key’s attorney in October 2001. Mr. Key had
been charged with aggravated robbery. Mr. Key indicated from the beginning that he wanted to
plead guilty. Mr. Hall explained to him that, if he did so, he would be making himself available as
a witness in the State’s case against his co-defendant, Jeffrey Yates. Mr. Key understood and
acknowledged this. The State offered Mr. Key a plea bargain involving a sentence of fifteen years
with a release eligibility date of thirty-five percent. Mr. Key eventually pled guilty to aggravated
robbery with an agreed sentence of twelve years and a release eligibility date of thirty-five percent.
However, the plea agreement was not made in exchange for any promised testimony.

Michael Key testified that he was currently serving a sentence of twelve years at thirty-five
percent for aggravated robbery. He acknowledged having been convicted of theft of property over
$10,000 in 1999 and use of a firearm during a drug trafficking offense in 1993. He identified Ms.
McCracken at trial as the woman he and the Defendant robbed in August 2001.

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 Mr. Key testified that he and the Defendant went to the victim’s house on the night in
question and he went to the door to see if someone was there. The Defendant did not accompany
him to the door on this initial visit. It was the Defendant’s idea to go to that particular house; the
Defendant told him that “they had a whole lot of drugs and some money there.”

During the initial visit, Mr. Key went to the door and it was answered by the victim. He
asked if a woman, whose name he could not remember, lived there, and the victim told him no. This
initial visit was a ruse to determine who was in the house at the time. He returned to the truck where
the Defendant was waiting and reported that the victim was in the house.

Mr. Key testified that they planned on returning to the house with some guns and demanding
that the victim turn over the drugs and money. They planned on kicking the door in; during the
actual break-in, they had to kick it about five times to get the door open. Mr. Key stated that he and
the Defendant each had a gun. They went in and the victim was hollering. Mr. Key grabbed her and
told her to “lay down.” They asked for the drugs and money. Mr. Key testified that he had a shirt
covering his face and the Defendant was wearing a mask. The Defendant told Mr. Key to hold Ms.
McCracken. While Mr. Key did so, the Defendant got some duct tape and told Mr. Key to take Ms.
McCracken to the bedroom. Once there, they tied her up with the duct tape at the Defendant’s
direction.

Before they tied up the victim, Mr. Key asked her for the money and the drugs. She produced
a vase which contained twelve rocks of cocaine. The Defendant took these drugs. Mr. Key stated
that there was no money. The Defendant also took a jacket and put it on. After they tied Ms.
McCracken, they continued looking through the house for drugs and money. The Defendant found
some wheel rims that he put on a blanket to steal, but they heard someone drive up and the
Defendant did not have time to take the rims. The two men ran out the back door. The only thing
that Mr. Key took with him was the gun and the roll of duct tape. Mr. Key testified that he got the
gun that he used that night from the Defendant.

Mr. Key stated that he was arrested for this crime on October 3, 2001. The next day, he
spoke with the police and agreed to make a statement. He told them about the robbery and stated
that the Defendant had been his accomplice. No one made him any promises in return for his
statement. He subsequently pled guilty as charged and received an agreed-upon sentence of twelve
years. He received no deals in exchange for his plea.

On cross-examination, Mr. Key stated that he had never seen the victim before the night of
the crime. He maintained that the Defendant directed the execution of the crime.

The Defendant testified, stating that he was not with Michael Key on the night of the
robbery. On cross-examination, the Defendant admitted having been convicted of five counts of
aggravated assault, two counts of possession of a controlled substance with intent to sell, one count
of attempted aggravated robbery, one count of especially aggravated kidnapping and one count of

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aggravated kidnapping. However, the Defendant claimed that these convictions had been reversed
on post-conviction and remanded for a new trial.

On rebuttal, Kimberly Tanzy, the criminal court deputy court clerk, testified that all of the
Defendant’s convictions about which he had been cross-examined were still valid and had not been
reversed.
After hearing the above proof, the jury convicted the Defendant of aggravated robbery.

ANALYSIS
I. Sufficiency of the Evidence
Initially, the Defendant contends that the evidence supporting his identity as the perpetrator
of the aggravated robbery against Ms. McCracken is insufficient.1 Tennessee Rule of Appellate
Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.” A convicted criminal defendant who challenges the sufficiency of the
evidence on appeal bears the burden of demonstrating why the evidence is insufficient to support the
verdict, because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court must reject
a convicted criminal defendant’s challenge to the sufficiency of the evidence if, after considering the
evidence in a light most favorable to the prosecution, we determine that any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

We acknowledge, of course, that the identity of the perpetrator is an essential element of any
crime, see State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975), and therefore must be proven by
the State beyond a reasonable doubt. We have no trouble concluding, however, that the evidence

1
The State contends at the outset of its appellate brief that the Defendant’s appeal should be dismissed for
failure to timely file a notice of appeal. However, this Court filed an Order on October 13, 2003, waiving the timely
filing of the Defendant’s notice of appeal and giving the Defendant fifteen days from entry of the Order in which to file
his notice of appeal. The Defendant subsequently filed his notice of appeal on October 28, 2003. This appeal is
therefore properly and timely before this Court.

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in this case is sufficient to establish that the Defendant assisted Michael Key in committing the
instant crime.

The Defendant attacks Ms. McCracken’s identification of him on the basis that she was not
able to identify him to police officers by name until after speaking with a friend of hers. However,
Ms. McCracken testified that she recognized the Defendant during the robbery because she had seen
him several times before. She gave a physical description of him to the police. She identified his
photograph from an array. She identified him at trial. That the Defendant was wearing a partial
mask during the robbery, and that Ms. McCracken did not know his name at the time, go to the
weight and credibility of Ms. McCracken’s testimony: issues for the jury’s determination, which
will not be second-guessed by this Court.

Ms. McCracken’s testimony was, in and of itself, sufficient to establish the Defendant’s
identity. However, the Defendant’s accomplice also testified and identified the Defendant as the co-
perpetrator of the robbery.

The Defendant testified that he was not with Michael Key on the night of the offense.
Nevertheless, it was up to the jury to weigh the competing testimonies and decide which witnesses
it would believe. The jury chose to accredit the testimonies of Ms. McCracken and Mr. Key, which
the jury was entitled to do. The jury chose to reject the Defendant’s testimony, which the jury was
also entitled to do. On our review, we have determined that the proof of the Defendant’s identity
was sufficient for the jury to conclude beyond a reasonable doubt that the Defendant participated in
the aggravated robbery of Ms. McCracken. Accordingly, this issue is without merit.

II. Rehabilitation of Witness with Prior Statement
During his cross-examination of Ms. McCracken, defense counsel asked her about the
statement she gave to the police, which had been reduced to a writing including both the
investigating officer’s questions and Ms. McCracken’s answers. Specifically, defense counsel
referred to the officer’s question, “Did you recognize the other participant?” Defense counsel
continued, “You said: ‘Yes, by his eyes, but I didn’t know his name. A couple of days later, I called
my friend.’” Defense counsel then stated, “And it goes on down further, and it says: ‘She told me
it was Jeffery Yates.’” Defense counsel followed this narrative with the question, “So you told the
police that your friend gave you that information, didn’t you?” Ms. McCracken responded, “No.
I told my friend girl [sic] that used to talk to him - I had asked her what was his name because I
didn’t know him by his real name. I had to ask her who he was because I had seen him before with
her.”

On redirect, the State requested to introduce into evidence the actual statement. The trial
court refused to admit the written statement itself but told the State that it could question Ms.
McCracken about it, including reading portions of it aloud and asking her about those portions. The
State particularly wanted admitted the full text of Ms. McCracken’s answer to the question, “Did you
recognize the other participant?” The full text of that response was, “Yes, by his eyes, but I didn’t
know his name. A couple of days later, I called my friend, told her what had happened, and asked

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her did she know anybody who does robberies with Mike Key. She told me his name was Jeffery
Yates” (emphasis added).

Defense counsel objected strenuously to the admission of the full response. The trial court
weighed the probative value of the contested evidence against its unfair prejudice,2 stating “What
is relevant here is the credibility of the victim in this case. Perhaps the sole witness who will testify
regarding the events of that night. And whether it’s unfair to the state to allow the cross-examination
that was conducted to go unanswered by not allowing the state to put into evidence the entirety [of
the] response that was given.” The court continued:

Well, I don’t like rewriting history, but I’m thinking that - I mean the - the
risk involved is the portion where she says, “I asked her did she know anybody who
does robberies with Mike Key. She told me his name was Jeffery Yates.”
We don’t know the basis for this witness’ knowledge of robberies. We don’t
know how many robberies she’s referring to - a hundred, five hundred, two. We
don’t know - we don’t have any factual basis for any of these, quote, robberies. If it
were asked - “And a couple of days later, I called my friend and told her what had
happened and asked her did she know anybody who could have done this robbery
with Mike Key. She told me his name was Jeffery Yates.” That would narrow it to
one and would eliminate the prejudice of suggesting that there were multiple
robberies, and it would still allow the witness’ credibility to be rehabilitated, I think,
by showing that, yes, she did recognize the person. She recognized him by his eyes,
but she didn’t know his name; and because she didn’t know his name, she called her
friend a couple of days later after a specific question - told her what happened, asked
her the question, “And she told me his name was Jeffery Yates.” Then that would,
then, explain how she came to give that name to the police.
And so while that rewords slightly actually what the witness told the police,
it doesn’t change - it doesn’t really affect the content of the answer except to take out
of the answer - the suggestion of multiple robberies. I’m a little concerned about
getting into that because absent of any factual basis, whatsoever, for those multiple
robberies with Mike Key.
But to word if [sic] after, “Did she know anybody who could have done this
robbery with Mike Key.” I’ll allow that.

Subsequently, on redirect examination, the prosecutor questioned Ms. McCracken as follows:

Q Do you remember the police asking you, “Did you recognize the other
participant?” Do you remember them asking you that question?
A Yes, ma’am.

2
Our Rules of Evidence provide that “[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .” Tenn. R. Evid. 403.

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 Q And did you respond, “Yes, by his eyes, but I didn’t know his name. A couple
of days later, I called my friend, told her what had happened, and asked her did she
know anybody who could have done this robbery with Mike Key. She told me his
name was Jeffery Yates.” Is that what happened?
A Yes, ma’am.

(emphasis added). The Defendant now contends that the trial court erred both in altering Ms.
McCracken’s statement to the police, and in allowing the State to question her about it.

Initially, we agree with the Defendant that the trial court committed error when it directed
the State to alter the text of Ms. McCracken’s statement to the police. While we are certainly
sympathetic with the trial court’s effort to simultaneously allow the State to rehabilitate its witness
while preventing the jury from hearing unduly prejudicial evidence, we are constrained to disapprove
of the method utilized by the trial court. Nothing in our Rules of Evidence permits a trial court to
rewrite a witness’s prior statement. Moreover, it was unnecessary to the State’s effort to rehabilitate
Ms. McCracken. The State wanted to demonstrate that Ms. McCracken did in fact recognize the
Defendant during the commission of the crime and needed her friend’s assistance only to the extent
of identifying him by name. It could have done so by simply asking Ms. McCracken why she had
called her friend after the robbery, and by reiterating that she had not known the Defendant’s name
until after that phone call. The State could further have questioned Ms. McCracken about whether
the conversation with her friend had had any effect on the certainty of her identification. This
approach would have allowed the State to demonstrate that Ms. McCracken’s statement to the police
was consistent with her trial testimony, to wit, that she had recognized the Defendant during the
crime, but needed help in determining his name. At the same time, it would have kept from the jury
the suggestion that the Defendant’s name was given to her because her friend either knew of past
robberies committed by the Defendant with Mike Key, and/or knew that the Defendant was
predisposed to commit the instant crime.

The trial court’s ruling was also in contravention of our Rule of Evidence 404(b), which
prohibits the introduction of proof concerning a criminal defendant’s prior bad acts when offered to
prove that the defendant acted in conformity with a character trait. That Rule provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity with the character trait.
It may, however, be admissible for other purposes. The conditions which must be
satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the record the
material issue, the ruling, and the reasons for admitting the evidence; and
(3) The court must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.

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Tenn. R. Evid. 404(b) (2003). The State’s questions to Ms. McCracken on redirect suggested to the
jury that Ms. McCracken’s friend knew that the Defendant was someone “who could have done this
robbery with Mike Key.” This “proof” was in the nature of propensity evidence. The statement
implies that Ms. McCracken’s friend knew that the Defendant was the type of person who committed
robberies: therefore, he must have been the perpetrator of the instant crime. This is precisely the
type of evidence which Rule 404(b) is designed to exclude from the jury’s consideration. Thus, not
only did the trial court err in allowing the State to ask the witness to verify a statement that the trial
court, the prosecutor, defense counsel and the witness all knew was, in fact, inaccurate, but the trial
court further erred in failing to exclude inadmissible evidence.

We review a trial court’s erroneous admission of evidence under a harmless error standard.
See Tenn. R. Crim. P. 52(a). Thus, the Defendant is not entitled to relief on this issue unless the trial
court’s error affirmatively appears to have affected the result of the trial on the merits. See id. We
find the trial court’s error in admitting the contested portion of Ms. McCracken’s pretrial statement
to be harmless. The State presented eyewitness testimony from the victim that the Defendant
participated in the aggravated robbery. She explained why she could not identify the Defendant by
name to the police initially. She later identified the Defendant’s photograph from an array of six
photographs, and the attending officer described her identification at that time as “firm.” She also
identified the Defendant at trial. The Defendant’s co-defendant, Mike Key, testified that the
Defendant assisted him in committing the aggravated robbery of the victim. This proof was more
than enough to convict the Defendant, and we are confident that any inference that the jury may have
drawn from the victim’s (altered) statement to the police made no difference in the jury’s verdict.
Accordingly, the Defendant is not entitled to relief on this issue.

III. Evidence of Prior Bad Act
The State adduced proof that the Defendant was apprehended during a prostitution sting, but
only after a lengthy chase. Prior to the admission of this evidence, the trial court conducted a jury-
out hearing on the Defendant’s objection to its admissibility. The trial court allowed the State to
question Officer Holgoin both about the circumstances of the Defendant’s arrest and his attempts
to evade it. The Defendant now asserts that the trial court’s ruling was erroneous.

As set forth above, our Rule of Evidence 404 provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action in
conformity with the character trait. It may, however, be admissible for other purposes.” Tenn. R.
Evid. 404(b) (2003). In this instance, however, the State was not offering evidence about what the
Defendant was doing at the time of his apprehension in order to prove the Defendant’s character or
actions in conformity therewith. Rather, the State was striving to prove that the Defendant’s attempt
to evade his arrest stemmed from his desire to avoid prosecution on the aggravated robbery charge
and not from a desire to avoid being arrested for patronizing prostitution. The State’s theory was
that the magnitude of the Defendant’s effort to avoid his arrest was out of proportion to the
seriousness of an arrest for patronizing prostitution: a mere misdemeanor. See Tenn. Code Ann.
§ 39-13-514(b). The trial court agreed that the Defendant’s flight from the police was relevant to
the Defendant’s state of mind, and ruled that it was for the jury to decide the reason for the

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Defendant’s flight. The actual issue before us, then, is whether the trial court abused its discretion
in determining that the probative value of the challenged proof was not outweighed by the danger
of unfair prejudice. See Tenn. R. Evid. 404(b)(3) (2003); State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997).

“A defendant’s flight and attempts to evade arrest are relevant as circumstances from which,
when considered with the other facts and circumstances in evidence, a jury can properly draw an
inference of guilt.” State v. Zagorski, 701 S.W.2d 808, 813 (Tenn. 1985); see also Sotka v. State,
503 S.W.2d 212, 221 (Tenn. Crim. App. 1972). Moreover, “[c]ircumstances surrounding a
defendant’s arrest, even though they may show the commission of another crime, are admissible if
they have probative value in establishing guilt.” Zagorski at 813. In this case, two plausible
explanations existed for the Defendant’s flight from the police when they attempted to arrest him.
The most obvious was the Defendant’s desire to avoid being arrested for the crime he was in the
process of committing when he was apprehended: patronizing prostitution. See Tenn. Code Ann.
§ 39-13-514(a). The less obvious reason for the Defendant’s flight, but certainly a reasonable and
rational one, was his desire to avoid prosecution for the instant crime.

The aggravated robbery was committed on the night of August 24, 2001. Lt. Polk testified
that, on September 8, he generated a “flyer” for uniformed patrol officers containing the Defendant’s
last-known address, physical description and photograph. This flyer was generated and made
available to patrol officers in an effort to apprehend the Defendant. On September 11, Lt. Polk
obtained a warrant for the Defendant’s arrest and he followed that up with a “media release.”

The prostitution sting during which the Defendant was apprehended was on September 21,
2001. Thus, less than a month had passed since the robbery was committed. Approximately two
weeks had passed since patrol officers were alerted to be on the lookout for the Defendant, and only
ten days since a warrant was issued for the Defendant’s arrest. It is certainly reasonable to infer that,
as of September 21, the Defendant was concerned about his possible arrest for the August robbery
of Ms. McCracken.

A criminal defendant’s state of mind is a classic jury issue. However, it is relevant only when
it pertains to the crime for which the defendant is being tried. In this case, the trial court had to make
an initial determination about whether the Defendant’s attempt to evade arrest was relevant to
proving his guilt of the aggravated robbery. Relevant evidence is defined as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401
(emphasis added). Here, Officer Holgoin testified that the Defendant evaded capture for over an
hour by concealing himself in a thickly wooded area. Once apprehended, the Defendant struggled
to the extent that he struck Officer Holgoin. Officer Holgoin testified that it had been “very
difficult” to take the Defendant into custody. The effort used by the Defendant to evade his
apprehension lends credence to the suggestion that he was concerned with avoiding something far
more serious than an arrest on a misdemeanor charge. Accordingly, under the facts and
circumstances of this case, we conclude that the trial court did not abuse its discretion in determining

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that the Defendant’s flight from police officers during the prostitution sting had some tendency to
establish his identity and guilty knowledge concerning the aggravated robbery, and was therefore
potentially admissible under Tennessee Rule of Evidence 404(b).

The trial court then had to determine whether the probative value of this proof was
outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 404(b)(3) (2003). The potentially
unfair prejudice in this case stemmed from the Defendant’s involvement in the subsequent crime of
patronizing prostitution, which the jury may have relied upon as evidence indicative of the
Defendant’s propensity to commit crimes. However, the trial court gave the jury the following
instruction concerning this matter:

Ladies and gentlemen of the jury, any testimony offered that may have related
to any alleged prostitution or attempted prostitution charges has been presented solely
for the purpose of explaining the circumstances that allegedly existed at the time of
this defendant’s arrest.
The fact that this defendant may have allegedly been involved in prostitution
or attempted prostitution charges cannot be held against him in any way, nor can it
be used to lessen the presumption of innocence in this case.

We are confident that this instruction overcame any danger of unfair prejudice relating to the
circumstances under which the Defendant was apprehended. Accordingly, we hold that the trial
court did not abuse its discretion in admitting proof about the Defendant’s flight and the
circumstances preceding it. This issue is without merit.

IV. Limits on Cross-examination of Mike Key
During his cross-examination of Mike Key, defense counsel asked if he knew a man by the
nickname of “Five Ball.” Mr. Key admitted that he knew “of” Five Ball, but denied having “hung
out” with him. Defense counsel persisted:

Q You used to hang out with a bunch of these guys, didn’t you?
A No.
Q Did you have a little group of friends that you hung out with, Mr. Key?
A No. I don’t just hang with a whole lot of people.
Q Do you remember there being organizations in your neighborhood?

At this point, the State requested a bench conference and objected to this line of questioning.
Defense counsel stated that he planned to ask Mr. Key if he was a member of the Gangster Disciples,
because it was “mentioned in the police reports about a guy by the name of Frederick Howard. And
talking with people, [defense counsel had] information that [Mike Key] may have been involved
with this individual in actually committing this robbery. Frederick Howard looks just like [the
Defendant].” Defense counsel continued: “Frederick Howard is also linked to this organization, and
it’s - and these guys all have been committing these crimes and covering up for the other one.”

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 The trial court determined that Mr. Key’s possible affiliation with the Gangster Disciples was
not relevant because there was no proof to indicate that the gang was involved with the crime or that
Frederick Howard had been involved. The trial court stated,

I’m not going to allow you to get into a fishing expedition about gang
affiliation at this point. You might be able to recall this witness if that were to
develop - if proof were to develop to substantiate where you’re heading. But at this
point in time, I’ve heard nothing to substantiate it.

The Defendant now contends that the trial court’s ruling was erroneous.

We disagree. We review a trial court’s rulings on the relevance of proffered proof under an
abuse of discretion standard. See DuBose, 953 S.W.2d at 652. We see no abuse of discretion here.
There was no proof that the aggravated robbery had any connection to a gang. Therefore, Mr. Key’s
possible affiliation with a gang had no bearing on the Defendant’s guilt or innocence. As noted by
the trial court, Mr. Key’s political or religious affiliations might have also been noted in the police
report, but were irrelevant to proving the identity of the persons who committed the aggravated
robbery. The trial court did not abuse its discretion in refusing to allow defense counsel to pursue
this line of questioning. This issue is without merit.

V. Admission of Defendant’s Prior Criminal Convictions
Prior to the Defendant’s decision to testify, the trial court held a jury-out hearing to determine
whether the State could examine him about prior convictions for impeachment purposes. The trial
court concluded that the Defendant could be asked about ten prior felony convictions: an especially
aggravated kidnapping, an aggravated kidnapping, an attempted aggravated robbery, five aggravated
assaults, and two drug offenses. The Defendant now contends that the trial court erred in allowing
the State to impeach the Defendant with these convictions. The Defendant argues that the probative
value of these convictions with respect to his credibility was outweighed by their unfairly prejudicial
effect.

The admissibility of a criminal accused’s prior criminal record for impeachment purposes
is governed by Tennessee Rule of Evidence 609. That Rule provides, in pertinent part, as follows:

For the purpose of attacking the credibility of a witness, evidence that the witness has
been convicted of a crime may be admitted if the following procedures and
conditions are satisfied:
...
(2) The crime must be punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted or, if not so punishable,
the crime must have involved dishonesty or false statement.
(3) If the witness to be impeached is the accused in a criminal prosecution,
the State must give the accused reasonable written notice of the impeaching
conviction before trial, and the court upon request must determine that the

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 conviction’s probative value on credibility outweighs its unfair prejudicial effect on
the substantive issues. . . .

Tenn. R. Evid. 609(a). It is the trial court’s weighing process referred to in subsection (3) which the
Defendant now challenges.

With respect to this provision, our supreme court instructs us that,

[I]n determining whether the probative value of a conviction on the issue of
credibility outweighs its unfair prejudicial effect upon the substantive issues, two
criteria are especially relevant. A trial court should first analyze the relevance the
impeaching conviction has to the issue of credibility. Trial courts should explain on
the record how the impeaching conviction is relevant to the defendant’s credibility.
If the conviction is probative of the defendant’s credibility, the trial court should
secondly “assess the similarity between the crime on trial and the crime underlying
the impeaching conviction.” When an impeaching conviction is substantially similar
to the crime for which the defendant is being tried, there is a danger that jurors will
erroneously utilize the impeaching conviction as propensity evidence of guilt and
conclude that since the defendant committed a similar offense, he or she is probably
guilty of the offense charged. Accordingly, the unfairly prejudicial effect of an
impeaching conviction on the substantive issues greatly increases if the impeaching
conviction is substantially similar to the crime for which the defendant is being tried.
Therefore, trial courts should carefully balance the probative value of the impeaching
conviction on credibility against its unfairly prejudicial effect on substantive issues.

State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999) (citations omitted). This Court reviews a trial
court’s ruling on the admissibility of prior convictions for impeachment purposes under an abuse of
discretion standard. See State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003).

We will first address the Defendant’s five convictions of aggravated assault. All of these
convictions occurred in 1994. The trial court did not explain on the record how these convictions
were relevant to the Defendant’s credibility. However, this Court has previously held that “‘felonies
of a violent nature reflect on the moral character of a witness’ and . . . ‘this evidence is not usually
without probative value.’” State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996) (quoting
State v. Daniel Strong, No. 88-82-III, 1989 WL 34942, at *2 (Tenn. Crim. App., Nashville, April 12,
1989)). This Court has previously affirmed a trial court’s decision to allow impeachment with a
prior conviction for aggravated assault. See, e.g., State v. Deadrick M. Pigg, M2000-03056-CCA-
MR3-CD, 2001 WL 1502659, at *3 (Tenn. Crim. App., Nashville, Nov. 27, 2001); State v. Michael
Brady, No. M1999-02253-CCA-R3-CD, 2001 WL 30220, at *5 (Tenn. Crim. App., Nashville, Jan.
12, 2001). Additionally, our supreme court has recognized that multiple prior convictions are more
probative of credibility than a single conviction. See Waller, 118 S.W.3d at 373. Here, the
Defendant put his credibility squarely at issue because he took the witness stand and denied that he
had been with Michael Key on the night of the aggravated robbery. The probative value of past

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actions of poor moral character became particularly important, therefore. Accordingly, we find that
the trial court did not err in determining that the Defendant’s past convictions of aggravated assault
were probative of his credibility.

The next step is assessing the similarity between the prior convictions and the offense for
which the Defendant was on trial. The trial court did not perform this analysis on the record. We
do so, therefore, de novo. The transcript of the sentencing hearing indicates that all of the aggravated
assaults committed by the Defendant as an adult were committed with a deadly weapon. The
aggravated robbery in this case also involved the use or display of a deadly weapon. Thus, there is
some similarity between the Defendant’s crimes of aggravated assault and the aggravated robbery
for which he was on trial. “However, the fact that a prior conviction involves a similar crime for
which the defendant is being tried does not automatically require its exclusion.” State v. Blevins,
968 S.W.2d 888, 893 (Tenn. Crim. App. 1997). See also Waller, 118 S.W. 3d at 373
(acknowledging that “evidence of a prior conviction that is substantially similar to the charged
offense is not per se inadmissible for impeachment purposes”).

While the Defendant’s prior aggravated assaults and the instant aggravated robbery share a
common element, we hold that, under the facts and circumstances of this case, the prior crimes and
the instant crime are not “substantially similar” such that the danger of unfair prejudice outweighed
the probative value of the prior convictions. The jury was given no information about the facts
underlying the prior aggravated assault convictions, and so did not know that they involved a gun.
The goal of an aggravated robbery is the theft of property; the goal of an aggravated assault is to
threaten or harm another individual. The Defendant’s prior convictions of aggravated assault were
not so similar to the crime for which he was on trial that the jury was likely to utilize them as
propensity evidence. Accordingly, we conclude that the trial court did not abuse its discretion in
allowing the State to impeach the Defendant with his prior convictions of aggravated assault.

We turn now to the trial court’s decision to allow the Defendant to be impeached with his
1993 convictions of aggravated kidnapping and especially aggravated kidnapping. These crimes
were committed in December 1991. The aggravated kidnapping was committed to facilitate the
commission of an aggravated robbery. See Tenn. Code Ann. § 39-13-304(a)(1) (1991). The
especially aggravated kidnapping involved the Defendant’s taking the victim as a hostage. See id.
§ 39-13-305(a)(3) (1991). Both of these crimes were committed in conjunction with an attempted
aggravated robbery. Aggravated robbery is accomplished with a deadly weapon or serious bodily
injury to the victim. See id. § 39-13-402(a). Accordingly, the kidnapping convictions involved the
use of violence.3 Like the aggravated assaults, then, these two prior convictions were somewhat
probative of the Defendant’s credibility. See Blanton, 926 S.W. 2d at 960.

As with the aggravated assault convictions, the jury was given no information about the facts
underlying the kidnapping convictions. Nor was the jury advised about the statutory elements of

3
W e have gleaned these facts about the kidnapping convictions from the transcript of the Defendant’s sentencing
hearing.

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these prior convictions. Thus, there was little danger that the jury was going to conclude that these
prior convictions were so similar to the instant crime that it would have relied on the kidnapping
convictions as propensity evidence. Accordingly, we conclude that the probative value of these prior
convictions was not outweighed by the risk of unfair prejudice, and the trial court therefore did not
abuse its discretion in allowing the State to question the Defendant about them.

We turn now to the Defendant’s prior conviction for attempted aggravated robbery. This
crime was also committed in December 1991, with the conviction occurring in 1994. Our supreme
court has recognized that robbery is a crime involving dishonesty that may be used for impeachment
purposes. See State v. Galmore, 994 S.W.2d 120, 122 (Tenn. 1999). Obviously, an attempted
aggravated robbery is very similar to a completed aggravated robbery, the offense for which the
Defendant was being tried. With respect to this prior conviction, the trial court did make a specific
finding with regard to its admissibility for impeachment purposes: “Well, robbery being simply an
enhanced form of larceny, I think is the type of offense that would go directly to the issue of
credibility. So I think that the probative value would outweigh any prejudicial effect in this case.”

By choosing to testify and denying his presence at the scene of the crime, the Defendant put
his credibility squarely at issue in this case. This Court has previously held that, under similar
circumstances, a prior conviction for attempted especially aggravated robbery was admissible for
impeachment purposes where the defendant was on trial for aggravated robbery. See State v.
Thomas D. Stanton, No. M2003-03049-CCA-R3-CD, 2005 WL 639139, at *13 (Tenn. Crim. App.,
Nashville, Mar. 17, 2005). Although the trial court should have addressed with more specificity the
balancing process it utilized in determining that the probative value of the prior conviction
outweighed the danger of unfair prejudice, we conclude that the trial court did not abuse its
discretion in determining the admissibility of the Defendant’s prior conviction for attempted
aggravated robbery.

Finally, we turn to the trial court’s decision with regard to the Defendant’s two prior
convictions for the unlawful possession of a controlled substance with intent to sell. Our supreme
court has determined that such offenses are “at best, only slightly probative of [a defendant’s]
credibility.” Waller, 118 S.W.3d at 373. They are also, however, completely dissimilar to the crime
of aggravated robbery for which the Defendant was being tried. There was, accordingly, very little
if any danger of unfair prejudice attaching to the admission of these convictions for impeachment
purposes. Given the broad nature of a trial court’s discretion in conducting the balancing test
required by Tennessee Rule of Evidence 609, we decline to hold that the trial court abused its
discretion in making this determination.4

Thus, we have determined that the trial court did not abuse its discretion in deeming
admissible for impeachment purposes the Defendant’s prior convictions. Accordingly, the
Defendant is not entitled to relief on this issue.

4
W e also note that defense counsel did not object at trial to the court’s ruling with respect to these two
convictions.

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VI. Lesser-included Offense of Theft
In his final issue, the Defendant posits that the trial court committed reversible error when
it failed to instruct the jury on the lesser-included offense of theft. We disagree.

“A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s effective
consent.” Tenn. Code Ann. § 39-14-103. Aggravated robbery is the intentional or knowing theft
of property from the person of another by violence or putting the person in fear, accomplished with
a deadly weapon. See id. § 39-13-402(a)(1). Theft is a lesser-included offense of aggravated
robbery. See State v. Bowles, 52 S.W.3d 69, 79-80 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 466
(Tenn. 1999) (instructing that an offense is a lesser-included offense if all of its statutory elements
are included within the statutory elements of the charged offense). Accordingly, the trial court had
a duty to instruct the jury on theft as a lesser-included offense of aggravated robbery if it determined
that (1) there existed evidence that reasonable minds could accept as to the commission of a theft,
and (2) the evidence of theft was legally sufficient to support a conviction of that offense. See
Burns at 469.

The proof in this case established that the Defendant obtained from Ms. McCracken some
cocaine, a sum of money, and a jacket without her effective consent. The proof was sufficient to
have supported a conviction of theft. The trial court should have instructed the jury on the lesser-
included offense of theft.

We review a trial court’s failure to instruct the jury on a lesser-included offense under a
constitutional harmless error standard. See State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002). We
have no trouble concluding that the trial court’s error in this case was harmless beyond a reasonable
doubt. The trial court instructed the jury on the lesser-included offenses of facilitation of aggravated
robbery, robbery, and facilitation of robbery. The jury rejected all of these lesser-included offenses.
Because the jury rejected the immediately lesser-included offenses of facilitation of aggravated
robbery, and robbery, we conclude beyond a reasonable doubt that it would also have rejected the
lesser-included offense of theft had it been charged. See State v. Williams, 977 S.W.2d 101, 106
(Tenn. 1998). The Defendant is therefore entitled to no relief on this basis.

CONCLUSION
The trial court having committed no reversible error, we affirm the judgment of the trial
court.

___________________________________
DAVID H. WELLES, JUDGE

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