State of Tennessee James Allen Jenkins

11/20/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 26, 2018

STATE OF TENNESSEE v. JAMES ALLEN JENKINS

Appeal from the Criminal Court for Sullivan County
No. S63886 James F. Goodwin, Judge
___________________________________

No. E2017-01983-CCA-R3-CD
___________________________________

The Defendant-Appellant, James Allen Jenkins, was convicted by a Sullivan County jury
of aggravated robbery, aggravated assault, unlawful possession of a weapon, and theft of
property $1,000 or less, for which he received an effective sentence of eleven years. See
T.C.A. §§ 39-13-402, -102; 39-14-103; 39-17-1307(c)(1). On appeal, the Defendant
argues (1) the evidence was insufficient to support each of his convictions; (2) the trial
court erred in allowing the State to cross-examine the Defendant regarding his prior
convictions because the parties had previously entered a stipulation as to his status as a
convicted felon; (3) the trial court erroneously permitted the testimony of a forensic
expert regarding a Combined DNA Index System (CODIS) “hit” as inadmissible hearsay;
and (4) whether his aggravated robbery and theft convictions violate principles of double
jeopardy.1 Upon our review, we merge the Defendant’s theft conviction and remand for
entry of amended judgments reflecting merger of the theft conviction into the
Defendant’s aggravated robbery conviction. In all other respects, the judgments of the
trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Remanded for Entry of Amended Judgments

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, J., joined. ROBERT H. MONTGOMERY, JR., J., filed an opinion concurring in
part and dissenting in part.

Kenneth E. Hill, Kingsport, Tennessee, for the Defendant-Appellant, James Allen
Jenkins.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Emily M. Smith and
1
We have re-ordered the Defendant’s issues for clarity.
Teresa A. Nelson, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION

On the evening of January 13, 2014, two Taco Bell employees were robbed at
gunpoint and approximately $206 was taken from the cash register. The employees
reported that the perpetrator discarded a cigarette butt during the robbery, upon which the
Tennessee Bureau of Investigation (TBI) subsequently generated a complete
Deoxyribonucleic Acid (DNA) profile. No suspect was immediately developed after the
crime. However, the DNA profile from the cigarette butt resulted in a CODIS “hit” to the
Defendant’s DNA profile, which had been uploaded in CODIS from his prior
convictions. After the TBI independently confirmed the hit, the Defendant was arrested
for the instant offenses. Following the Defendant’s arrest, one of the victims also
identified the Defendant as the perpetrator of the offense. Based on these acts, on
February 14, 2017, the Sullivan County Grand Jury indicted the Defendant for two counts
of aggravated robbery, theft of property $1,000 or less, and convicted felon in possession
of a firearm.2 The following proof was adduced at trial.

The trial began by the reading of the parties’ stipulation, exhibit 1, which provided
(1) that the Defendant was a convicted felon, and (2) that the Defendant was convicted of
a felony prior to the instant offense. Angela Worsham, an employee of Taco Bell, was
working on the night of the offense when the Defendant entered the store. 3 She said he
came in around 10:00 that evening, was wearing a dark “hoodie [that] was pulled up over
[his] head,” but his face could be seen clearly. Her attention was drawn to the Defendant
because he was smoking, and Taco Bell is a non-smoking facility. She told Christopher
Goldsberry, her manager, that he was smoking. When Goldsberry told him to put it out,
the Defendant took it out of his mouth, put it on the ground, and smashed it with his foot.
Goldsberry and Worsham looked at each other in “surprise” because the Defendant
disposed of the cigarette inside the restaurant in that manner.

When Worsham and Goldsberry turned back towards the Defendant, he was
pointing “an older gun like a revolver” at Goldsberry. Worsham explained that
Goldsberry was standing behind the cash register, she was standing next to Goldsberry,

2
The Defendant was initially indicted on August 26, 2014, for a single count of aggravated
robbery, theft of property $500 or less, and convicted felon in possession of a firearm.
3
We acknowledge that we do not use titles when referring to every witness. We intend no
disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper
titles is disrespectful even though none is intended. He would prefer that every adult witness be referred
to as Mr. and Mrs. or by his or her proper title.

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and another employee, Zak Thornsberry, was in the back. She said the Defendant then
demanded that Goldsberry give him the money from the cash register and “not to push
any buttons.” Goldsberry gave the Defendant approximately $206, and the Defendant
left the restaurant. Goldsberry then called the Bristol Police Department. Once the
police arrived, Worsham gave them a statement and showed them the Defendant’s
unmoved cigarette butt. Several photographs of the Taco Bell were admitted into
evidence including a photograph showing a black smudge where the cigarette had been
“mushed” into the recently mopped floor.

Worsham confirmed that the restaurant did not have surveillance cameras and that
the Defendant did not speak to her. Although the Defendant never pointed the gun
directly at Worsham, it was pointed in her direction. Worsham was certain that it was a
“real gun” even though she could not distinguish the gun from “a replica or a toy gun.”
She did not recall the Defendant cocking the hammer of the gun or seeing the gun
cylinder rotate. She confirmed that the Defendant pushed the door to exit, that he was not
wearing gloves, and that she would have given the Defendant the money from the cash
register had Goldsberry not done so.

Worsham identified the Defendant as the perpetrator of the offense at trial and at a
preliminary hearing. Pressed on cross-examination regarding identification of the
perpetrator, Worsham said,

“[M]y eyes were trained on the man with the gun and I knew what he was
doing and could see out of the corner of my eye what he was doing. I was
in direct sight of the man.”

On redirect examination, Worsham confirmed that she had been subpoenaed to court
prior to trial to testify at a hearing in this case. Worsham said while she was sitting
outside the courtroom with several other people present, she “knew exactly who it was
when [the Defendant] walked in.” On re-cross examination, pressed again regarding her
identification at the preliminary hearing, Worsham testified that “I knew who he was
before I even went into the courtroom. When a gun is pointed at you, that’s a face you’ll
never forget.”

Christopher Goldsberry testified consistently with Worsham’s recollection of
events. In addition, Goldsberry testified that he could not remember the perpetrator’s
face but described him as a “scruffy looking” white man in his forties, wearing a “dark
hoodie” and work boots. He described the gun as “a revolver[,] an older style gun,
maybe a 38[,] an old western type gun.” Goldsberry explained that the perpetrator
pointed the gun at him the entire time he opened the cash register and handed the
perpetrator the money. Goldsberry was unable to identify the Defendant as the
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perpetrator and explained that his “attention was [on] the gun and my life and my kids
and wife.” Goldsberry said he believed the gun was real but was unsure whether there
were bullets in the gun and did not see the gun cylinder rotate or hear the perpetrator cock
the gun.

Lieutenant Justin Branson of the Bristol Police Department testified that he
responded to the Taco Bell robbery and obtained statements from Worsham and
Goldsberry. He said Goldsberry directed him to the Defendant’s cigarette butt located on
the floor in front of the cash register. Lieutenant Branson collected the cigarette butt as
evidence, sealed it in an envelope, placed his initials on the envelope, and gave it to
Sergeant Jason McCreedy. He identified the ash mark in one of the photographs where
the cigarette was put out and confirmed that he used gloves to collect the cigarette butt.
On cross-examination, Lieutenant Branson explained that none of the previously
admitted photographs were of the cigarette butt as it was found because “it’s a small item
in a store with a lot of things going on and [he] didn’t want to get it contaminated,
damaged, somebody step on it so that’s why [he] collected it at that point just to preserve
the actual cigarette butt.” He further testified that he found a footprint outside the
restaurant, that he or another officer photographed the footprint, and agreed that it looked
more like a tennis shoe than a work boot. He also confirmed that there was no paperwork
to document that he gave the cigarette butt to Sergeant McCreedy.

Sergeant Jason McCreedy of the Bristol Police Department testified that he
responded to the Taco Bell robbery and retrieved the cigarette butt sealed in an initialed
envelope from Lieutenant Branson. He then secured it in his police vehicle, processed
the rest of the scene, and put the evidence into the evidence locker at the police station.
Sergeant McCreedy testified that he photographed the scene, dusted for fingerprints on
the door the Defendant entered and exited, and obtained written statements from the
victims at the police station. He said there was no identification match made from the
fingerprints on the restaurant door. He sent the cigarette butt to the TBI for DNA
analysis. He later received a phone call from TBI Agent Turbyville, who confirmed a
“possible match” to the name James Jenkins. In following up on this information,
Sergeant McCreedy located the Defendant at the Edgemont Towers Apartments where
the Defendant was living with his wife, Barbara Orr. Sergeant McCreedy explained that
the Edgemont Towers Apartments were located “approximately 1.4 miles driving
distance” from the Taco Bell. He drove the distance in 3 minutes and 54 seconds.

The Defendant came to the police station and voluntarily provided a DNA sample
via buccal swab. Sergeant McCreedy sent the Defendant’s DNA sample to the TBI and
the analysis positively matched the DNA on the cigarette butt. Sergeant McCreedy also
reviewed surveillance camera video and access card information from the Edgemont
Towers Apartments. Sergeant McCreedy went to the Defendant’s apartment twice. The
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first time he went there to speak to the Defendant and did not conduct a search. The
second time, the day of the Defendant’s arrest, Barbara Orr provided consent for the
officers to search her apartment and her car, and no gun was found. The second search
occurred “almost four months” after the instant crimes. During Sergeant McCreedy’s
testimony, a photograph of the Defendant as he looked in 2014, was admitted into
evidence.

TBI Special Agent Charly Castelbuon, an expert in serology and DNA analysis,
testified that she analyzed the cigarette butt and generated a complete DNA profile. She
completed her report on February 19, 2014, at which point there was no known suspect
for the instant offense, and confirmed that only the DNA of one male was found on the
cigarette butt. She further testified that CODIS is a DNA database that is maintained by
both federal and state law enforcement agencies. She said it contains many DNA profiles
from forensic case work, missing persons, and TBI laboratory staff profiles. It allows
TBI agents to “run a known profile against [it] to see if there is a match between any of
those profiles.” Asked if convicted felons profiles are contained in CODIS, she replied,
“Yes, it should be.” She acknowledged that CODIS “testing” was conducted on the DNA
profile generated from the cigarette butt; however, it was performed by another agent.
There was no objection as to her testimony pertaining to CODIS.

TBI Special Agent Michael Turbyville, an expert in serology and DNA analysis,
testified that he analyzed Agent Castelbuon’s report and complete DNA profile. Agent
Turbyville testified that he tested “a known reference standard from the subject.” When
asked if Agent Castelbuon’s complete DNA profile was run through CODIS, defense
counsel objected and was overruled by the trial court following brief discussion. Agent
Turbyville defined the CODIS database, consistently with the testimony of Agent
Castelbuon. The State then asked if there was a “CODIS match” regarding the DNA
profile generated from the cigarette butt, and Agent Turbyville replied, “Yes, the
cigarette DNA profile that she obtained from the cigarette butt hit in the CODIS
database.” Asked to then name the individual who was “the match” for the DNA profile
after it was ran through CODIS, Agent Turbyville replied, “James Allen Jenkins.” Based
on the CODIS “hit,” Agent Turbyville requested and subsequently received a known
DNA sample from the Defendant. Agent Turbyville specifically received the
Defendant’s DNA sample via buccal (by mouth) swab, from the Bristol Police
Department. He then analyzed the swab for DNA and generated a complete DNA profile
for the Defendant. He compared the DNA profile from the Defendant to the DNA profile
generated from the cigarette butt, and confirmed that “it was a match.” Upon subjecting
the match to a population statistics program, Agent Turbyville determined that the
probability of the DNA on the cigarette butt belonging to someone other than the
Defendant exceeded one in the world population or “once in every 1.3 quintillion
individuals.”
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 Agent Turbyville memorialized his conclusions in multiple reports, all of which
were admitted into evidence without objection except for exhibit 16. As to exhibit 16,
the report showing the CODIS hit, defense counsel renewed his objection, generally.4
The report specifically stated that the DNA profile generated from the cigarette butt “was
searched against the CODIS database and a possible match was detected. The
information being provided is an investigative lead only. In order to confirm this, a blood
or buccal sample from [the Defendant’s name and date of birth] must be submitted for
DNA testing.”

Jeffrey Scythers, a seventeen-year veteran with the Bristol Tennessee Housing
Authority, managed several apartment complexes, including Edgemont Towers
Apartments. He authenticated video surveillance from the apartments from the night of
the offense which was played for the jury. He also authenticated access card information
previously given to the police and explained that an access card, issued only to residents,
is required to enter the apartments. The video showed a male individual, later identified
as the Defendant, entering the apartments with Barbara Orr’s access card at 10:05 p.m.
and entering the first floor lobby and elevator at 10:07 p.m. The video later showed the
Defendant re-entering the apartments with Barbara Orr’s access card and taking the
elevator to the seventh floor at 10:25 p.m. Neither the videos nor the access card report
for that night showed Orr’s card being used to exit the apartments.

Officer Preston Bowers of the Bristol Police Department testified that he was
assigned to support the Bristol Housing Authority and had become familiar with the
residents of Edgemont Towers Apartments over his eight-year tenure. Prior to the
offense, he knew Barbara Orr and had seen her “in the presence of the Defendant in
public spaces.” Officer Bowers pulled the video surveillance from the apartments from
the night of the offense and provided it to the police. He viewed the apartment
surveillance video prior to and at trial, and on both occasions identified the male
individual as the Defendant. Officer Bowers was present when the Defendant was
arrested for the instant offenses at Orr’s apartment. On cross-examination, Officer
Bowers said that he was also familiar with Lonnie Lingerfelt, a man whom Bower’s had
previously seen “around the apartments.”

The Defendant, age 50 at the time of trial, testified that he was a lifelong resident
of Bluff City, Tennessee. He had been employed at the same company for over 30 years,
installing and refinishing hardwood floors. At the time of the offense, the Defendant
lived in “Hickory Tree” but would “sometimes . . . stay at [his] wife’s apartment in

4
As we will discuss more fully below, it is unclear whether the grounds in support of this
objection were based on counsel’s standing objection to reference to CODIS as discussed in his pre-trial
motion to dismiss or on the newly asserted basis of hearsay.
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Edgemont Towers.” He confirmed that she stayed on the seventh floor in apartment 7E.
Asked about the two residences, he explained that they “didn’t like the city.” The
Defendant and his wife had frequent visitors to the apartment, including his cousin,
Lonnie Lingerfelt. The Defendant testified that Lingerfelt looked “just like him except he
has tattoos on his biceps, is a bit heavier, maybe a little taller.” The Defendant explained
that he was working the night of the instant crimes and was living in between his home
on Hickory Tree Road and his wife, Barbara Orr’s apartment at Edgemont Towers.

The Defendant identified himself in the surveillance video as the man wearing a
“Tennessee hat.” He then identified two still photographs taken from surveillance video
on April 6, 2014, exhibits 21 and 22, and identified the man as his cousin, Lonnie Shawn
Lingerfelt. The Defendant said Lingerfelt occasionally visited the apartment and that the
Defendant’s wife would let Lingerfelt use one of her access cards to enter the apartment
building. He confirmed that Lingerfelt smoked cigarettes and “sometimes he’d take
cigarettes out of the ashtray[.]” The Defendant was unsure whether he went on Volunteer
Parkway that night but explained that “[i]f [he] did the only place [he] could have went
was across the Parkway to [his] uncle Johnny’s” which was approximately five to ten
minutes walking distance from the Edgemont Towers Apartments. Asked whether
Lingerfelt was at the apartment on the night of the crimes, the Defendant replied, “Yeah,
I think he was.”

On cross-examination, the Defendant testified that he was unsure whether he was
married to Barbara Orr in January 2014 and could not remember their wedding date, but
thought “[i]t might have been 2015.” He confirmed that he did not have an access card to
Orr’s apartment and that he often borrowed her access card when he stayed there. On the
night of the robbery, the Defendant confirmed that he was wearing a “dark colored
hoodie” but said he was wearing dark colored loafers, not boots. He confirmed that he
smoked at the time of the offense and when asked whether he was testifying that
Lingerfelt took his cigarette and dropped it at the Taco Bell, the Defendant said:

No, ma’am, he could have. He could have or it could have got there
anytime during that day. Me and my wife used to ---- I used to take my
wife to that nail place right beside there and she’d go in and get her nails
fixed and I’d go in Taco Bell and get me something to eat.

The Defendant did not recall telling Sergeant McCreedy in his statement that he “ha[d]n’t
been to that Taco Bell in years” and said that was untrue. He confirmed that he was
convicted of seven counts of statutory rape on July 8, 2009.

After deliberation, the jury found the Defendant guilty of aggravated robbery
(count one), the lesser included offense of aggravated assault (count two), theft $1,000 or
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less (count three), and convicted felon in possession of a firearm (count four). On July
28, 2017, the trial court sentenced the Defendant to eleven years for the aggravated
robbery, nine years for the aggravated assault, three years for the convicted felon in
possession of a firearm, and eleven months and twenty-nine days for the theft of property
$1,000 or less. These sentences were ordered to be served concurrently, for an effective
sentence of eleven years. The Defendant filed a motion for new trial on August 4, 2017,
which was denied by the trial court. It is from these judgments that the Defendant
appeals.

ANALYSIS

I. Sufficiency of the Evidence. In challenging the evidence supporting his
convictions, the Defendant argues that the State failed to carry its burden of proving the
Defendant’s identity, that the gun was never pointed at Angela Worsham and she could
not have reasonably feared imminent bodily injury, and that neither victim could verify
that he possessed a real gun. The Defendant does not dispute the remaining elements of
his convictions. The State responds that victim testimony and DNA evidence established
the Defendant’s identity, that both victims reasonably feared imminent bodily injury by
the Defendant’s gun, and that victim testimony verified that the Defendant used a gun to
commit the instant crimes. Upon review, we agree with the State.

In resolving this issue, we apply the following well-established standard of review.
The State, on appeal, is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the
evidence, the standard of review applied by this court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings 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.” Guilt may be found beyond a
reasonable doubt in a case where there is direct evidence, circumstantial evidence, or a
combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343
S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must evaluate the credibility of the
witnesses, determine the weight given to witnesses’ testimony, and reconcile all conflicts
in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When reviewing
issues regarding the sufficiency of the evidence, this court shall not “reweigh or
reevaluate the evidence.” Henley v. State, 960 S.W.2d. 572, 578-79 (Tenn. 1997). This
court has often stated that “[a] guilty verdict by the jury, approved by the trial court,
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accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the prosecution’s theory.” Bland, 958 S.W.2d at 659 (citing State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973)). A guilty verdict also “removes the presumption of innocence
and replaces it with a presumption of guilt, and the defendant has the burden of
illustrating why the evidence is insufficient to support the jury’s verdict.” Id. (citing
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

When the State offers proof of guilt based on circumstantial evidence, the jury
decides how much weight to give to circumstantial evidence, and “[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.” Marable v.
State, 313 S.W.2d 451, 457 (Tenn. 1958) (internal quotation and citation omitted). This
court may not substitute its inferences for those drawn by the trier of fact in cases
involving circumstantial evidence. State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)
(citing Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956)). We note that the standard of
review “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (quoting State v. Sutton,
166 S.W.3d 686, 689 (Tenn. 2005)).

A. Identification. The Defendant argues that the evidence is insufficient to support
his aggravated robbery and theft $1,000 or less convictions because the State failed to
prove his identity as the perpetrator beyond a reasonable doubt. Specifically, the
Defendant argues that Christopher Goldsberry could not identify the Defendant and that,
although Angela Worsham was “unwavering with regard to identification of the
[Defendant] as the robber[,]” she testified that “she took her eyes off of the robbery”
several times. The State responds, and we agree, that the Defendant’s identity was
sufficiently established by Angela Worsham’s eyewitness identification and DNA
evidence connecting the Defendant to the scene.

Aggravated robbery is “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear” when the robbery is
“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to
lead the victim to reasonably believe it to be a deadly weapon[.]” T.C.A. §§ 39-13-
401(a), -402(a)(1). “A 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.” T.C.A. § 39-14-103(a).

“The identity of the perpetrator is an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793
(Tenn. 1975)). The State has the burden of proving the identity of the defendant as the
perpetrator beyond a reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn.
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1998). The identity of the defendant as the perpetrator may be established by direct
evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d
at 793. “The credible testimony of one identification witness is sufficient to support a
conviction if the witness viewed the accused under such circumstances as would permit a
positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim.
App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)).
The identification of the defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005)
(citing Strickland, 885 S.W.2d at 87.) Additionally, “[i]n the resolution of questions of
fact, such as those presented by evidence of alibi or the identity of the perpetrator, ‘the
jury 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, 297 (Tenn. 1993)); see also Cole v.
State, 215 S.W.2d 824, 825 (Tenn. 1948); Smith v. State, 566 S.W.2d 553, 556 (Tenn.
Crim. App. 1978).

Here, the Defendant asserts that the State failed to prove his identity as the
perpetrator beyond a reasonable doubt. Viewed in the light most favorable to the State,
the record shows that the Defendant entered Taco Bell, discarded his cigarette on the
restaurant floor, pulled a gun on the two victims, and demanded the money from the cash
register. Angela Worsham positively identified the Defendant as the perpetrator before
and during trial, and DNA from the discarded cigarette butt at the scene matched the
Defendant’s DNA. No other DNA was found on the cigarette butt. The Defendant is not
entitled to relief on this issue.

B. Reasonable Fear of Imminent Bodily Injury. The Defendant next argues that
the evidence is insufficient to support his aggravated assault conviction because one of
the victims, Angela Worsham, could not have reasonably feared imminent bodily injury
as the gun was not pointed directly at her. The State responds that Angela Worsham was
in the immediate vicinity of the Defendant and his gun, that she would have complied
with the Defendant’s demands had Christopher Goldsberry not done so, and that the
“Defendant’s use of a gun frightened her.”

A person commits aggravated assault when the person “[i]ntentionally or
knowingly causes another to reasonably fear imminent bodily injury” when the assault
“[i]nvolved the use or display of a deadly weapon[.]” T.C.A. §§ 39-13-101(a)(2), -
102(a)(1)(A)(iii). A deadly weapon is defined as either “[a] firearm or anything
manifestly designed, made or adapted for the purpose of inflicting death or serious bodily
injury; or [] anything that in the manner of its use or intended use is capable of causing
death or serious bodily injury[.]” T.C.A. § 39-11-106(a)(5). An object that is not
necessarily deadly per se may nonetheless be deadly “if the defendant in a particular case
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actually used or intended to use the item to cause death or serious bodily injury.” State v.
McGouey, 229 S.W.3d 668, 673 (Tenn. 2007) (emphasis omitted).

Here, Angela Worsham testified that she was standing next to Christopher
Goldsberry while the Defendant pointed his gun at Goldsberry. She further testified that,
had Christopher Goldsberry not complied with the Defendant’s demands for money, she
would have intervened and complied. Although she admitted the gun was not directly
pointed at her, Worsham said she feared for her life and was scared to move. This issue
likewise does not avail the Defendant relief.

C. Unlawful Possession of a Weapon. The Defendant finally argues that the
evidence is insufficient to support his unlawful possession of a weapon conviction
because the State failed to prove beyond a reasonable doubt that the perpetrator possessed
a real gun. The State responds that both victims testified that they believed that the
Defendant was using “a functional handgun.”

In order to sustain the Defendant’s conviction for unlawful possession of a
weapon, the State was required to prove that the Defendant unlawfully “possesse[d] a
handgun . . . and has been convicted of a felony[.]” T.C.A. § 39-17-1307(c)(1). The
State and defense counsel stipulated before trial that the Defendant was a convicted felon;
the Defendant does not now dispute that he had prior felony convictions. Here, the
Defendant only challenges the authenticity of the gun. Viewed in the light most
favorable to the State, we conclude that the evidence was sufficient to support the
Defendant’s conviction. Both victims testified that they believed the gun that the
Defendant used in the commission of the instant crimes was real and the jury was able to
determine their credibility at trial. We conclude that a rational juror could have found
that the Defendant was in possession of a gun during the instant crimes. Accordingly, the
Defendant is not entitled to relief.

II. Admissibility of Defendant’s Prior Convictions. Next, the Defendant argues
that the trial court erred in permitting the State to cross-examine him regarding his
previous felony convictions because the parties had stipulated to his status as a convicted
felon. In addition, the Defendant asserts, for the first time on appeal, that the trial court
failed to weigh the probative value against the prejudicial effect of the convictions in
violation of Tennessee Rule of Evidence 404(b). The State argues, and we agree without
further discussion, that the Defendant waived his 404(b) challenge by failing to “object to
the introduction of prior convictions on Rule 404(b) grounds at trial.” See Tenn. R. App.
P. 36(a); State v. Turner, 919 S.W.2d 346, 356-57 (Tenn. Crim. App. 1995) (“A party
may not raise an issue for the first time in the appellate court.”). The State does not
address the Defendant’s remaining ground for relief. For the reasons that follow, we

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conclude that the trial court properly admitted the Defendant’s prior convictions under
Rule 609 of the Tennessee Rules of Evidence.

The crux of the Defendant’s argument is that the State should have been precluded
from cross-examining him regarding his prior convictions because he had already
stipulated to his status as a convicted felon. In support of his claim, the Defendant relies
upon State v. James, 81 S.W.3d 751, 762 (Tenn. 2002) and State v. Timothy Bryant
Burton, No. M2010-02177-CCA-R3-CD, 2011 WL 6147017 (Tenn. Crim. App. Dec. 7,
2011). In James, the defendant was charged with felony escape, which required the State
to prove, as an element of the offense, that he was incarcerated for a felony at the time of
his escape. At trial, the defendant offered to stipulate that he had been incarcerated for a
felony at the time of the escape in order to prevent the jury from learning of the specific
felonies of which he had been convicted. The State did not agree to this stipulation and,
during its case-in-chief, the deputy warden testified and established each of the
defendant’s felony convictions. In reversing the defendant’s convictions, our supreme
court found the substantive rationale in Old Chief v. United States, 519 U.S. 172 (1997),
persuasive and concluded that, because of the defendant’s offered stipulation that he was
incarcerated for a felony at the time of his escape, the State could not present proof as to
his specific felony convictions:

[W]e hold that when the sole purpose of introducing evidence of a
defendant’s prior convictions is to prove the status element of the offense,
and when the defendant offers to stipulate his status as a felon, the
probative value of the evidence is, as a matter of law, outweighed by the
risk of unfair prejudice. Therefore, in this limited instance, the trial court
should have accepted the defendant’s stipulation in lieu of disclosing the
names or nature of his previous convictions, as the latter evidence had little
probative value and was likely to provoke the jury’s prejudice.

James, 81 S.W.3d at 762 (footnote omitted).

In Burton, the defendant was charged with a violation of the sex offender registry
for failure to timely register with a law enforcement agency within forty-eight hours of
his change of residence. Following his conviction, the defendant appealed, citing State v.
James, 81 S.W.3d 751 (Tenn. 2002) and State v. Robert J. Wrigglesworth, Jr., No.
M2005-01841-CCA-R9-CO, 2006 WL 2069430 (Tenn. Crim. App. July 26, 2006), for
the proposition that the trial court erred in allowing the State to introduce specific
evidence of his prior convictions to establish his status as a violent sex offender in
violation of due process and the rules of evidence. In denying relief, this court
distinguished James and reasoned as follows:

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 [A] defendant can offer to stipulate to the elements of an offense, but
by doing so cannot prevent the jury from learning of an element of the
offense or the stipulation. In other words, when evidence of a defendant’s
prior conviction is necessary to prove the status element of an offense, as in
the case sub judice, the defendant may offer to stipulate his status as a
felon. James, 81 S.W.3d at 762. If the defendant does so stipulate,
disclosure of the names or nature of the prior convictions has “little
probative value and [is] likely to provoke the jury’s prejudice.” Id. In the
absence of a stipulation, however, the “probative value of an essential
element of the offense would almost always outweigh any potential
prejudice under Rule 404(b) [of the Tennessee Rules of Evidence], [and
therefore the] specific nature of the offense w[ould] be admissible.” State
v. Wingard, 891 S.W.2d 628, 634 (Tenn. Crim. App. 1994) (overruled on
other grounds James, 81 S.W.3d at 763 n. 7).

Timothy Bryant Burton, 2011 WL 6147017, at *5.

In our view, the Defendant’s reliance on James and Burton is misplaced. In both
of those cases, the objection was to the admissibility of the Defendant’s prior convictions
as substantive evidence and for the purpose of establishing the status element of the
offense in the State’s case-in-chief. These cases were therefore governed by Rules 401,
403, and/or 404(b) of the Tennessee Rules of Evidence. Unlike in James, the record here
shows that the State accepted the Defendant’s stipulation as to his convicted felon status,
which was offered as substantive proof of the status element of the offense during its
case-in-chief. Our analysis reveals the Defendant’s true grievance is that his stipulation
did not insulate him from impeachment during his testimony. Neither James nor Burton
avail the Defendant relief in this regard.

A defendant charged with being a felon in possession of a firearm can generally
prevent the prosecution from referring to the specific name or nature of his prior felony
by stipulating to his status as noted in the above authority. However, this protection may
yield if the defendant chooses to testify. See Old Chief, 519 U.S. at 176 n. 2 (observing
that “[w]hile it is true that prior-offense evidence may in a proper case be admissible for
impeachment, even if for no other purpose, Fed. Rule Evid. 609, the defendant did not
testify at trial.”); see also State v. Herron, 461 S.W.3d 890, 906 (Tenn. 2015) (noting that
“Rule 609 ‘is an exception to the general principle in [Tennessee] Rule [of Evidence]
404(a) that character evidence is inadmissible,’ and this exception ‘is based on the
precept that it is appropriate for the trier of fact to look at a witness’s character by
considering some of the witness’s criminal convictions’ for the purpose of assessing the
witness’s credibility.”) (internal citation omitted). When a defendant elects to testify, as
in the case at bar, he may be cross-examined about the predicate felony for the limited
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purpose of impeaching his testimony subject to Rule 609 of the Tennessee Rules of
Evidence. See United States v. Kemp, 546 F.3d 759 (6th Cir. 2008) (holding that
protection afforded by Old Chief “can recede when a criminal defendant chooses to
testify at trial”); United States v. Collier, 527 F.3d 695 (8th Cir. 2008) (admitting
evidence of prior conviction for credit card fraud under Rule 609(a)(2)); United States v.
Crawford, 130 F.3d 1321 (8th Cir. 1997) (noting that Old Chief does not apply where
prior felonies were admitted to impeach credibility); see also State v. Gayles, 756 S.E.2d
46, 50-51 (2014) (holding that defendant was subject to impeachment on basis of prior
convictions, even though he had stipulated to being a convicted felon for purposes of the
firearm charge).

With the above law in mind, we conclude that the trial court properly determined
that the Defendant’s prior convictions of statutory rape were admissible for purposes of
impeachment should the Defendant choose to testify. Prior to trial, the State provided the
Defendant with notice of its intent to use the Defendant’s criminal history for
impeachment purposes. After the State rested its case-in-chief and on the heels of the
Defendant’s motion for judgment of acquittal, defense counsel asked for a ruling
concerning the interplay between the State’s notice of its intent to seek enhanced
punishment based on the Defendant’s seven prior convictions of statutory rape and the
stipulation as to the Defendant’s status as a convicted felon. Defense counsel argued,
inter alia, that the stipulation “bar[red] the questioning of whether [the Defendant] was
convicted of these offenses. The jury is aware that he has a prior felony.” In response,
the State argued that it was seeking to admit the Defendant’s prior conviction only if the
Defendant chose to testify as impeachment. Moreover, the State contended, and the trial
court ultimately agreed, that there was a distinction between “why we entered into the
written stipulation for purposes of that count in the indictment versus the [D]efendant
making a decision, informed decision to testify subject to impeachment.”

Although the trial court did not explicitly engage in a formal Rule 609 analysis, it
conducted a hearing outside the presence of the jury and determined that the Defendant’s
seven convictions for statutory rape from 2009 were admissible should he choose to
testify. Upon our de novo review, see State v. Lankford, 298 S.W.3d 176, 181 (Tenn.
Crim. App. 2008), we find the probative value of the Defendant’s convictions on the
issue of credibility outweighs its unfair prejudicial effect on the substantive issues. While
the probative value of a statutory rape conviction on the issue of credibility is minimal at
best, it is sufficiently distinct from the charged offense to lessen any potential prejudicial
effect. Moreover, the Defendant testified and denied being involved in the offense. He
suggested instead that his cousin was the perpetrator, because his cousin looked like him
and occasionally took cigarette butts from his ashtray in his wife’s apartment. The
Defendant placed his credibility squarely at issue. Accordingly, we conclude that the

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trial court did not err in admitting the Defendant’s prior statutory rape convictions for
impeachment purposes, and the Defendant is not entitled to relief.

III. Admission of Expert Testimony. The Defendant next argues that the
testimonies of Special Agents Castelbuon and Turbyville, specifically the DNA match
result from the CODIS database, constituted hearsay and should not have been allowed at
trial. The Defendant asserts that the State failed to introduce “the return report or any
other documentary proof” supporting the DNA results. The State responds that the trial
court properly allowed expert testimony regarding the CODIS DNA match because the
match, even if hearsay, was not offered for the truth of the matter asserted but instead for
the effect on the listener. The State explained that this testimony was not used to prove
the Defendant’s DNA on the cigarette butt but instead to show “how law enforcement
ultimately came to collect a DNA sample from [the] Defendant.” Based on the below
authority and analysis, we conclude that the testimony pertaining to the CODIS “hit” was
inadmissible hearsay; however, any error in its admission was harmless.

Prior to trial, the Defendant filed a motion to dismiss based on the erroneous
admission of his DNA profile into the CODIS database. Because his statutory rape
convictions should have been destroyed by the TBI after dismissal of certain counts of his
convictions, the Defendant essentially argued that his DNA profile should not have been
uploaded into CODIS and any subsequent reliance on that profile was “fruit of the
poisonous tree.” The trial court conducted a full evidentiary hearing, entertained
argument of counsel, and denied the motion. Additionally, in the preliminary matters on
the first day of trial, after the parties discussed the stipulation to the Defendant’s prior
felony conviction of statutory rape, the State mentioned “one other thing that is related to
the stipulation . . . there was a CODIS hit that came back to law enforcement where the
defendant was identified because his name had been put in the system because of that
prior. Is there any objection to us discussing that in the proof since it is already stipulated
to? We wouldn’t of course go into what that line of conviction was.” The trial court
advised the State to instruct/caution the witness not to get into the details of the
conviction, and defense counsel objected, standing on his prior motion to dismiss. The
trial court again overruled the Defendant’s motion/objection.

The following exchange occurred at trial after TBI Agent Michael Turbyville was
asked to briefly explain the CODIS database:

Defense Counsel: I think CODIS is hearsay if he’s going to start testifying
to what he’s seen in the database. I think its hearsay. He’s not the one that
could introduce it and I think that’s where we’re going with it, right?

....
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 Defense Counsel: He’s going to testify he had a hit on CODIS I’m
assuming and I think that’s hearsay.

State: Well, I mean he can rely on that as part of his, of what he did and
how he came to complete what he did. Now, I think he can testify - - -

The Court: It would be an exception - - - to show why he did what he did.

Agent Turbyville then testified and defined CODIS generally as a collection of
DNA profiles from eight different databases including arrestee, convicted offender,
forensic unknown relative to missing persons, etcetera. Agent Turbyville said CODIS is
used to store DNA evidence when law enforcement may not have a subject to match the
evidence against. He testified that the evidence from the instant case, i.e. the DNA
profile from the cigarette butt generated by Agent Castelbuon, was uploaded in CODIS
and “hit” on the name James Allen Jenkins. He sent that information to the Bristol Police
Department, and they later obtained a known DNA sample from the Defendant. Agent
Turbyville compared the known DNA sample of the Defendant to the DNA profile from
the cigarette butt and determined they matched.

In resolving this issue, we are mindful that “the admissibility of evidence rests
within the trial court’s sound discretion, and the appellate court does not interfere with
the exercise of that discretion unless a clear abuse appears on the face of the record.”
State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d
136, 141 (Tenn. 2007)). A trial court is found to have abused its discretion when it
“applies an incorrect legal standard or reaches a conclusion that is ‘illogical or
unreasonable and causes an injustice to the party complaining.’” Lewis, 235 S.W.3d at
141 (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).

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). Rule 802 states that “[h]earsay is not admissible except as provided by
these rules or otherwise by law.” Tenn. R. Evid. 802. In Kendrick, the Tennessee
Supreme Court determined that the standard of review for hearsay statements involves
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.
When the trial court makes factual findings and credibility determinations
in the course of ruling on an evidentiary motion, these factual and
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 credibility findings are binding on a reviewing court unless the evidence in
the record preponderates against them. State v. Gilley, 297 S.W.3d at 759-
61. 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 [of] the exceptions to the hearsay rule—are questions of law subject to
de novo review. State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim.
App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App.
2005).

Kendrick v. State, 454 S.W.3d 450, 479-80 (Tenn. 2015). However, declarations are
non-hearsay when they are used to prove the effect on a listener: “[A]ny time the
statement is used to prove the hearer or reader’s mental state upon hearing the
declaration, words repeated from the witness chair are not hearsay . . . because [the
statement] is not used to prove the truth of the matter asserted in the statement.” Neil P.
Cohen, et al., Tennessee Law of Evidence, § 8.01, at 8-23 (5th ed. 2005); see also State v.
Venable, 606 S.W.2d 298, 301 (Tenn. Crim. App. 1980) (holding that a statement
introduced for its effect on the listener is not hearsay).

As an initial matter, to the extent that the Defendant attempts to incorporate the
grounds supporting his motion to dismiss, a close review of the record shows that he has
waived consideration of whether his DNA was erroneously uploaded into CODIS.5 At
issue here is the testimony from TBI Agent Turbyville that there was a CODIS “hit”
linking the DNA from the cigarette butt recovered from the crime scene to the
Defendant’s name and date of birth. Here, we are inclined to agree with the Defendant
that Agent Turbyville’s testimony concerning the CODIS hit was in fact hearsay. There
was no testimony at trial as to who generated the Defendant’s DNA profile that was
uploaded into CODIS, who uploaded the Defendant’s DNA into CODIS, how CODIS
maintained this information, or any records concerning the use or operation of CODIS.
Although the State argues it was admitted for the effect on the listener, rather than the
truth of the matter asserted, there is no question that the testimony was probative of the
Defendant’s identity, a crucial element of the offense.

Because this is an issue of first impression in Tennessee, we find it helpful to
consider case authority on the admissibility of testimony from other, similar law
enforcement databanks for guidance. Tennessee has frequently allowed experts to testify

5
The Defendant’s brief on this issue is limited to an assertion of hearsay. It does not contend,
nor do we consider, whether the admission of this testimony was admitted in violation of the
Confrontation Clause of the United States Constitution or the Tennessee Constitution, both of which
guarantee a criminal defendant the right to confront witnesses against him or her. See U.S. Const. amend.
VI; Tenn. Const., art. I, § 9.

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regarding their leads obtained through fingerprint cards previously uploaded into the
Automated Fingerprint Identification System (AFIS). See e.g., State v. Jerrie Coleman,
No. W2015-01925-CCA-R3-CD, 2016 WL 7687124, at *4 (Tenn. Crim. App. June 15,
2016); State v. Marlow Williams, No. W2005-02803-CCA-R3-CD, 2007 WL 2781720,
at *8 (Tenn. Crim. App. Sept. 25, 2007), perm. app. denied (Tenn. Apr. 7, 2008) (noting
that an expert may base an opinion upon inadmissible hearsay, if the type of hearsay is
one that would be reasonably relied upon by experts in that situation). Admissibility of
AFIS based testimony is governed by Rules 702 and 703 of the Tennessee Rules of
Evidence. Because AFIS is a database that stores known fingerprint profiles which are
relied upon by experts in the field in developing their investigation, we view them
similarly to the DNA profiles stored in CODIS. Although the record shows that Agent
Turbyville was qualified as an expert prior to his testimony concerning the CODIS “hit,”
to the extent that the CODIS hit was admitted in this case without the procedural
safeguards of Rules 702 and 703, any testimony concerning a “match” to the Defendant’s
identity was error and should have been excluded.

We must now determine the effect of the error on the Defendant’s case. See Tenn.
R. App. P. 36(b) (“A final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the whole record, error involving a
substantial right more probably than not affected the judgment or would result in
prejudice to the judicial process.”). Here, the Defendant does not contend, nor does the
record reflect, that the admission of the testimony concerning the CODIS hit was
prejudicial. Significantly, the Defendant did not question at trial or on appeal the veracity
of his CODIS DNA profile. In other words, he did not challenge whether the DNA
profile in CODIS triggering the “hit” was in fact his. Moreover, the TBI Agent engaged
in an examination, independent of the CODIS hit, to confirm the substantive evidence
linking the Defendant to the crime. He confirmed the CODIS hit by comparing the DNA
profile from the cigarette butt generated by an agent who testified at trial to the DNA
profile that was voluntarily provided by the Defendant. Any prior reference to a DNA
match or hit was therefore cumulative. Accordingly, we conclude that the erroneous
admission of the CODIS hit was harmless. The Defendant is not entitled to relief.

IV. Double Jeopardy/Merger of Convictions. The Defendant argues, and the
State concedes, that his convictions for aggravated robbery and theft should have been
merged as they “arose from the same event and the same evidence was relied upon by the
State[.]” For the reasons that follow, we merge the Defendant’s conviction of theft and
remand this matter for entry of amended judgments to reflect merger of his theft
convictions into the greater offense of aggravated robbery.

The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution provides that “[n]o person shall . . . be subject for the same offen[s]e to be
- 18 -
twice put in jeopardy of life or limb[.]” The Tennessee Constitution also protects against
double jeopardy convictions, providing that “no person shall, for the same offen[s]e, be
twice put in jeopardy of life or limb.” Tenn. Const. art. I, § 10. Three fundamental
principles underlie double jeopardy: “(1) protection against a second prosecution for the
same offense after acquittal; (2) protection against a second prosecution for the same
offense after conviction; and (3) protection against multiple punishments for the same
offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012) (citations omitted).

“Where commission of one crime necessarily involves commission of the second,
the offense so involved is said to be merged in the offense of which it is a part . . . [T]he
doctrine of merger does not apply where the offenses are separate and distinct, but only
where the identical criminal acts constitute both offenses.” 21 Am. Jur. 2d Criminal Law
§ 21 (1998) (internal citations omitted); State v. Berry, 503 S.W.3d 360, 362 (Tenn.
2015) (“Merger is required when a jury returns verdicts of guilt on two offenses and one
of the guilty verdicts is a lesser-included offense of the other offense.”). “It is
uncontested that theft is a lesser-included offense of robbery.” State v. Bowles, 52
S.W.3d 69, 79 (Tenn. 2001). The Tennessee Supreme Court has stated that “when two
jury verdicts are merged into a single conviction, the trial court should complete a
uniform judgment document for each count.” Berry, 503 S.W.3d at 364. This rule
ensures that there is a complete record of each conviction and sentence in the event that
one of the convictions is later reversed. Moreover, this rule “reflects the long-held
recognition that the guilty verdict in the lesser or alternative charge is not mere
surplusage but remains a valid jury verdict of guilt that need not be ‘dismiss[ed],[’]
‘vacat[ed],’ ‘or stri[cken].’” Id. (quoting State v. Addison, 973 S.W.2d 260, 267 (Tenn.
Crim. App. Nov. 20, 1997)); see also State v. Soller, No. E2008-02420-CCA-R3-CD,
2010 WL 2301748, at *13 (Tenn. Crim. App. June 9, 2010) (indicating that the merged
offense is not “extinguished”).

Here, the jury convicted the Defendant of aggravated robbery of Christopher
Goldsberry (count one) and the offense of theft $1,000 or less (count three). Because the
offense of theft is wholly incorporated into the offense of aggravated robbery, the
offenses are the “same” under Blockburger and violate principles of double jeopardy.
See State v. Hayes, 7 S.W.3d 52, 56 (Tenn. Crim. App. 1999). Accordingly, upon
remand, the judgment of conviction for theft should be merged into a single conviction
for aggravated robbery and amended judgments should be entered showing the merger.
The trial court should also note in the “Special Conditions” box on counts one and three
that the conviction in count three merged with the conviction in count one. See id. at
364.

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 CONCLUSION

Based on the foregoing reasoning and analysis, we conclude that the evidence is
sufficient to support the Defendant’s convictions, that the trial court did not err in
permitting the State to cross-examine the Defendant regarding his prior felony
convictions for impeachment purposes, and that the erroneous admission of testimony
concerning the CODIS hit was harmless. We further conclude that the Defendant’s
conviction for theft should be merged into his conviction for aggravated robbery.
Accordingly, we remand this case to the trial court for entry of amended judgments to
reflect the merger of these convictions. In all other respects, the judgments of the trial
court are affirmed.

____________________________________
CAMILLE R. MCMULLEN, JUDGE

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