State of Tennessee v. Tracy Lynn Carman-Thacker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 14, 2015 Session
STATE OF TENNESSEE v. TRACY LYNN CARMAN-THACKER
Appeal from the Circuit Court of Coffee County
No. 39310 Vanessa Jackson, Judge
No. M2014-00757-CCA-R3-CD - Filed April 24, 2015
A Coffee County jury found the Defendant, Tracy Lynn Carman-Thacker, guilty of willful
abuse, neglect, or exploitation and false imprisonment. The Defendant appeals, asserting that
the trial court erred when it: (1) failed to compel the State to make an election of offenses;
(2) denied the Defendant’s motion for acquittal as to both charges; and (3) determined that
the victim was competent to testify at trial. After a thorough review of the record and
applicable law, we reverse and remand in part, and affirm in part.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and
Remand in Part, and Affirmed in Part
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and R OBERT L. H OLLOWAY, J R., J., joined.
Floyd Don Davis, Winchester, Tennessee, for the appellant, Tracy Lynn Carman-Thacker.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Charles Craig Northcott, District Attorney General; and Jeffrey D. Ridner,
Assistant District Attorney General for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from the Defendant’s treatment of her intellectually disabled sister,
Eileen Carman, the victim. A Coffee County grand jury indicted the Defendant for one count
of willful abuse, neglect, or exploitation and two counts of aggravated kidnapping. The State
later amended Count 2 of the indictment to a charge of false imprisonment and dismissed the
other aggravated kidnapping charge.
At trial, the parties presented the following evidence: Agent Johnny Thomas, a Social
Security Administration criminal investigator, testified that his primary duties with the
Inspector General’s Office were to investigate fraud, waste, and abuse of government funds.
Agent Thomas recalled that he was notified by the Tullahoma Social Security office about
a local news story involving the victim. Agent Thomas confirmed that the victim was
eligible for disability benefits “as a result of her mental retardation.” He stated that the
victim had been receiving Social Security benefits on this basis since 1997.
Agent Thomas testified that, in the course of his investigation, he learned that the
victim’s sister, the Defendant, received the victim’s Social Security benefits on her behalf
as the victim’s representative payee. Agent Thomas explained that a representative payee
is “someone who’s appointed by the Social Security Administration to be [the beneficiary’s]
monetary overseer . . . for their food, clothing, and shelter needs.” He stated that the Social
Security Administration first makes a determination that a person is “incapable of handling
their own benefits” before appointing a representative payee. Agent Thomas said that the
benefit money is only to be used for “food, clothing, and shelter needs” for the recipient and
that the representative payee is not allowed to use the money for their own personal use.
Agent Thomas explained that the Social Security benefits should be deposited into an
individual account, not a joint account. In this case, the benefits should have been deposited
into an account under the victim’s name.
Agent Thomas testified that he obtained bank records and learned that the only bank
account was in the name of the Defendant, with the victim having no ownership of the
account, in violation of the policies governing representative payees. The Defendant became
representative payee for the victim in January 2000, and, at that time, received a guide for
representative payees that listed the duties and responsibilities of this role. Agent Thomas
identified the guidelines provided to all representative payees. The guidelines stated that
representative payees must use the beneficiary’s money for “day-to-day” needs, such as food
and shelter. Any remaining money after the “day-to-day” needs are met could then be used
for the beneficiary’s medical and dental health care expenses not covered by health insurance
or for personal needs such as clothing or recreation. Thereafter, any remaining money must
be saved, “preferably in an interest-bearing account or U.S. Savings Bonds.” Further, the
guidelines instruct that a representative payee is “not to take a fee from the beneficiary’s
funds” for services rendered as a representative payee. The guidelines also contained
specific instruction on how the funds should be held.
Agent Thomas testified that, in the course of his investigation, he found that from
December 2006 to December 2011, the Defendant received $68,301 in benefits on behalf of
the victim. Agent Thomas stated that the Defendant’s bank account balance as of November
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30, 2011, was $119,456.48. Agent Thomas identified a Representative Payee Accounting
Form sent out annually to verify the receipt and spending of the benefits. The verification
form completed by the Defendant in September 2009, for the period from February 2007
through January 2008, indicated that the Defendant received $13,009 during this time period
and spent $12,000 of this amount for the victim’s food and housing. The form indicated that
the Defendant spent the remaining $1,009 on “clothing, medical and dental expenses,
education, recreation, or personal items” for the victim. No supporting documentation was
required for these forms.
Agent Thomas identified a Representative Payee Accounting Form completed by the
Defendant on February 4, 2010, for the time period from February 1, 2008, through January
31, 2009. The form indicated that the Defendant received $13,348 during this time period
and spent $8,899 on food and housing for the victim and $4,449 for “clothing, medical and
dental expenses, education, recreation, or personal items” for the victim. Agent Thomas
stated that the verification forms for the two following years were not returned to the Social
Security Administration. Agent Thomas stated that, according to his records, $14,052 was
issued to the Defendant on the victim’s behalf in 2009, $14,052 in 2010, and $14,052 in
2011.
On cross-examination, Agent Thomas stated that, although the Social Security
Administration did not require representative payees to sign a document acknowledging
receipt of the rules and regulations, it was “standard procedure” to provide representative
payees with the guidelines. Agent Thomas agreed that he had “[n]o direct proof” that the
Defendant did not use the benefits for the victim.
Debra Mooneyham testified that in December 2011 she worked for Adult Protective
Services investigating accusations of elder abuse and financial exploitation. In the course
of her job, she received a complaint involving the Defendant and the victim. Ms.
Mooneyham conducted a home visit on December 5, 2011, to investigate the allegations.
Ms. Mooneyham stated that the Defendant’s property was located in Coffee County. She
described the residence as a double-wide mobile home that had been “partially burned.” She
stated, “[a]ll of the windows had been blown out due to a fire, and the main residence was
. . . in a country setting, a mobile home park type setting.”
Initially, Ms. Mooneyham knocked on the front door, but, when she received no
response, she walked around to the side and knocked on the side of the mobile home until
she heard “a voice tell [her] to come in.” She then proceeded around to the rear of the house
through a gate with a “No Trespassing” sign, where she found a “small building almost like
a utility shed” built onto the back porch of the mobile home. Ms. Mooneyham could hear
a female voice from inside the shed but observed a “clasp and hook” on the outside door of
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the shed. Ms. Mooneyham asked the person inside the shed if it was alright if she “undid the
wire,” and the person inside the shed responded, “[y]eah.”
Ms. Mooneyham testified that, when she opened the door, she found the victim who
appeared “very tattered, dirty” and with her hair matted. She stated that the victim smelled
as if she had not showered or bathed in “quite some time.” She estimated the dimensions of
the room as “possibly 8 by 12” and described it as “small.” Ms. Mooneyham said that the
room was “filthy” and smelled of human waste. A toilet without a tank was in the room, but
clearly not functioning properly because “there was human waste to the rim and
overflowing.” Ms. Mooneyham described the bedding as “filthy” and the clothing found in
the room as “very dirty.” Ms. Mooneyham stated that the weather was very cold the day of
the home visit. She noted that there was a small electric heater in the room that did not
provide sufficient heat. Other than an electrical cord that was brought in from the outside,
there was no other apparent available source of electricity for the room. Ms. Mooneyham
stated that there was no electrical light source or running water for the room. There were two
“small, very worn puzzles” in the room and a television and a radio that did not work.
Ms. Mooneyham called the police and, after they arrived, she went and bought lunch
for the victim. When she gave the food to the victim, the victim “smiled and then she ate it
very fast.” The victim was later transported to the hospital by ambulance to be evaluated for
possible malnutrition or dehydration.
Ms. Mooneyham testified that she spoke with the Defendant in mid-December 2011.
The Defendant told Ms. Mooneyham that the victim had been in the room for two days after
the Defendant was unable to find care for the victim. The Defendant stated that she felt the
victim “was better off there than in the street.” The Defendant stated that she lived “right
down the road” from the victim. The Defendant told Ms. Mooneyham that she received the
victim’s benefit checks and that she paid “her bills” with the money.
On cross-examination, Ms. Mooneyham agreed that there was a window in the room
but clarified that the window was “very small” and one that would be “difficult” to get out
of the room through. Ms. Mooneyham agreed that medical personnel at the hospital
determined that the victim was not malnourished or dehydrated. She stated that the victim
was not crying when she found her but was “panicked,” “wanted out of the shed,” and did
not want Ms. Mooneyham to leave. Ms. Mooneyham agreed that the Defendant had told her
that she was a nursing student and had tried to find someone “to watch” the victim. When
she could not, she put the victim in the shed to keep her out of the road and safe from injury.
She said that the victim’s neighbors, Mr. and Mrs. Travis, had also told her that they
“checked on” the victim periodically.
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Erin Haggard, a Coffee County Sheriff’s Department deputy, testified that she was the
first to arrive at the scene. When she arrived, she met Ms. Mooneyham and the victim. She
said the victim’s clothing appeared to be “dingy” and “dirty,” and the victim smelled of urine.
Deputy Haggard entered the room where Ms. Mooneyham had discovered the victim and
described the room as “very dirty.” She described the toilet as located close to the bed and
not functional. Deputy Haggard was unable to find any toilet paper in the room and the
victim indicated that there was not any toilet paper available to her. She stated that there was
a small space heater in the room with an electrical cord that ran outside the room to a power
source. She found no food inside the room and very few personal items other than a puzzle,
a notepad, and crayon. Deputy Haggard noted that the clothing in a laundry basket in the
room also appeared to be dirty.
Deputy Haggard testified that she later spoke with the Defendant who stated that the
trailer had burned down in June or July. As to her ability to care for the victim, the
Defendant stated, “she had school all day, and she also ha[d] children to care for, and it’s
very hard, and she’s unable to do it.” The Defendant told Deputy Haggard that the victim
had been locked in the room for two days for the victim’s safety.
On cross-examination, Deputy Haggard agreed that the Defendant had stated that on
several occasions the victim had been out in the road stopping cars to beg for cigarettes. On
redirect examination, Deputy Haggard stated that the Defendant acknowledged that she
received a disability check on the victim’s behalf.
Daryl Welch testified that he was employed by the Coffee County Sheriff’s
Department in December 2011.1 He recalled a dispatch requesting he assist Adult Protective
Services in reference to a complaint investigation. Agent Welch described the location of
the complaint as a mobile home that had caught on fire in June of 2011. A room was built
on the back porch with a small walkway in between the wall of the room and the trailer.
Based upon his inspection of the room, Agent Welch did not believe that there was a way to
exit the room from the inside when the door was locked and wired from the outside as it had
been when Ms. Mooneyham had arrived. Agent Welch described the inside of the room as
“the most despicable and disgusting thing that [he had] seen in all [his] years of being a
deputy sheriff.”
Agent Welch testified that based upon his investigation he obtained warrants for the
Defendant’s arrest on the same day, December 5, 2011. The Defendant was arrested and
provided a statement to police. She stated that she was unable to care for the victim. She
1
At the time of the trial, Mr. Welch was serving as the deputy director for Homeland Security in
Coffee County. We will refer to him as Agent Welch consistent with his position at the time of trial.
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admitted to police that she used some of the victim’s benefit money to pay her own bills. She
said that she bought the puzzles and “some coloring books” for the victim with the benefit
funds as well. Agent Welch recalled that the Defendant stated, “I’m guilty. . . . She’s been
locked in that room for two days.” The Defendant explained that she locked the victim in
the room to prevent her from “getting out in the road and picking up cigarette butts.”
Agent Welch testified that the Defendant was interviewed again on the following day,
December 6, 2011. The Defendant again stated that the victim had been locked in the room
for two days and that the Defendant had used some of the victim’s benefit money to pay for
the Defendant’s own bills.
The victim testified that the room where she was found did not have working lights,
a working toilet, toilet paper or paper towels, or any food in it. When asked if she liked
being in that room, she responded, “No, no, no, huh-uh.” She stated that she wanted to get
out of the room and was “glad” when the police officers took her out of the room.
On cross-examination, the victim agreed that she often flagged down cars in the street
to ask for cigarettes. When asked if she wanted “to see the children,” the victim responded
that the Defendant told her she “can’t see the kids no more” and that is why she did not want
to see the Defendant.
Judy Reed testified on the Defendant’s behalf. She stated that she was a retired
registered nurse and attended church with the Defendant and the victim. Ms. Reed stated that
she had been to the victim’s home on multiple occasions. She said that the room the victim
was found in was the victim’s “normal bedroom,” but she clarified that she had never gone
into the victim’s bedroom. She described the victim’s appearance as “always clean” when
she interacted with the victim.
Ms. Reed testified that, after the Defendant’s arrest, she took pictures of the victim’s
bedroom. She described the room as approximately 9 feet by 13 feet with a 2 foot by 3 foot
window. She said the door to the room also had “a partial window in it.” She took pictures
of a “new commode” and an “old commode” that were outside the victim’s room on the
porch.
Frankie Travis testified that he lived next door to the Defendant. He said that he saw
the victim on a regular basis and that he and his wife “kind of watch[ed] for” the victim
occasionally. He recalled that the victim would go out into the road to flag cars down and
ask for cigarettes. When he observed the victim doing this, he would tell her to go back in
the yard or sit on her porch. Mr. Travis said that the victim would “get agitated sometimes”
when he would ask her to get out of the road. Mr. Travis said that he observed the victim
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breaking windows and “tear[ing] up things in the yard and stuff like that.”
Mr. Travis testified that he repaired “minor things” in the victim’s residence at the
Defendant’s request. He said that on December 5, 2011, there was a plan to install a new
toilet in the victim’s room.
On cross-examination, Mr. Travis confirmed that after the June 2011 fire, “everybody
quit living” in the trailer except for the victim. Mr. Travis confirmed that the water supply
to the room was cut off when the toilet tank broke.
Jeanne Travis, Frankie Travis’ wife, testified that she saw the victim on a daily basis
and often the victim would go out in the road to try and stop vehicles. Ms. Travis said that
the victim would stand in front of the cars causing her to “almost get hit.” Ms. Travis said
that she would tell the victim to go back in her yard. The victim would comply “sometimes”
and would “get mad” when told to get out of the road. Ms. Travis stated that the victim was
“usually” clean and properly dressed. Ms. Travis said that the Defendant asked her “to keep
[her] eyes and ears open” with regard to the victim on December 5, 2011. Ms. Travis
explained that she would not bring the victim into her home “[b]ecause [she] was afraid [the
victim] would throw a temper and get mad.” She said that on December 5, she twice walked
“over in the driveway to make sure [the victim] wasn’t doing anything or anything like that.”
Ms. Travis testified that, on December 5, 2011, Ms. Mooneyham asked Ms. Travis if
the trailer belonged to the Defendant. Ms. Travis confirmed that the trailer was the
Defendant’s and then watched Ms. Mooneyham approach the trailer. She said that Ms.
Mooneyham did not go to the front door of the trailer and knock.
On cross-examination, Ms. Travis testified that, when the Defendant asked her “to
look after” the victim, the Defendant did not provide any food or water for the victim. Ms.
Travis stated that she did not actually go back to the room to check on the victim, she “just
went to the driveway” to see if she could hear “anything.”
Kenneth Harpe testified that he attended church with the Defendant and had known
her seven or eight years. He confirmed that he had visited the Defendant in her home on six
or eight occasions. He said that he also saw the victim at church functions and confirmed
that the victim was clean and well-dressed on these occasions. He described the victim as
“easy to upset.” He recalled seeing the victim standing in the middle of the road stopping
traffic.
Chris Renaud testified that he attended church with the Defendant. He described the
victim as happy and “in high spirits,” although on one occasion he had observed her cursing
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at “Kenny.” He had also observed the victim out in the roadway on at least three occasions.
Roger Walters testified that he was one of the Defendant’s neighbors. Mr. Walters
stated that he knew the victim and had observed the victim stopping traffic and asking for
cigarettes.
Walter Hackney, Earlene Hackney, and Robin Gadd, all testified that they attended
church with the Defendant. They all stated that they had seen the victim at church properly
dressed and clean.
After hearing this evidence, the jury convicted the Defendant of willful abuse, neglect,
or exploitation and false imprisonment. The trial court sentenced the Defendant to serve two
years for the willful abuse, neglect, or exploitation conviction and a concurrent sentence of
eleven months and twenty-nine days for the false imprisonment conviction. It is from these
judgments that the Defendant now appeals.
II. Analysis
On appeal the Defendant asserts that the trial court erred when it: (1) failed to compel
the State to make an election of offenses; (2) denied the Defendant’s motion for acquittal as
to both charges; and (3) determined that the victim was competent to testify at trial.
A. Election of Offenses
The Defendant argues that, because the State did not make an election in Count 1, the
jury verdict was not unanimous. The State concedes this issue, agreeing that the Defendant
is entitled to a new trial on this count.
The Tennessee Supreme Court “has consistently held that the prosecution must elect
the facts upon which it is relying to establish the charged offense if evidence is introduced at
trial indicating that the defendant has committed multiple offenses against the victim.” State
v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001) (citing State v. Kendrick, 38 S.W.3d 566, 568
(Tenn. 2001); State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999); State v. Walton, 958
S.W.2d 724, 727 (Tenn. 1997); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); State v.
Shelton, 851 S.W.2d 134, 137 (Tenn. 1993)). “The election requirement safeguards the
defendant’s state constitutional right to a unanimous jury verdict by ensuring that jurors
deliberate and render a verdict based on the same evidence.” Johnson, 53 S.W.3d at 631
(citing Brown, 992 S.W.2d at 391). A jury’s verdict is not unanimous when the jurors find
the same elements of a particular crime based on different facts and offenses; the jurors must
“deliberate and render a verdict based on the same evidence.” Id. “[T]here should be no
8
question that the unanimity of twelve jurors is required in criminal cases under our state
constitution.” State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991). The Tennessee
Supreme Court explained that “[a] defendant’s right to a unanimous jury before conviction
requires the trial court to take precautions to ensure that the jury deliberates over the particular
charged offense, instead of creating a ‘patchwork verdict’ based on different offenses in
evidence.” Kendrick, 38 S.W.3d at 568 (quoting Shelton, 851 S.W.2d at 137). The
Defendant’s right to a unanimous jury verdict on each and every count is “fundamental,
immediately touching the constitutional rights of the accused.” State v. Burlison, 501 S.W.2d
801, 804 (Tenn. 1973).
In this case, the Defendant was indicted for abuse, neglect, or exploitation pursuant to
Tennessee Code Annotated section 71-6-117. This statute provides, “[i]t is an offense for any
person to knowingly, other than by accidental means, abuse, neglect or exploit any adult
within the meaning of this part.” T.C.A. § 71-6-117(a).
In this case the State did not make an election as to whether this offense was committed
through abuse, neglect, or exploitation. The jury charge also does not specify the alleged
criminal act nor does the jury verdict form. During deliberation, the jury asked whether it
must find all three, abuse, neglect and exploitation, to convict the Defendant. The trial court
responded, “[t]he answer is no. As long as you agree on one - either abuse, neglect or
exploitation - you can find her guilty of that offense.” The evidence in this case indicated
various types of abuse, and the response by the trial court essentially left the jury to elect for
itself the incidents on which to convict. As our Supreme Court reasoned in State v. Shelton,
even if the jury agrees upon one of the options, the trial court and the reviewing appellate
courts are unable to determine what the election was and whether the State had sufficiently
proven its case. Shelton, 851 S.W.2d at 137. Therefore, we reverse the Defendant’s
conviction for willful abuse, neglect, or exploitation, and remand the case for a new trial on
this count.
B. Sufficiency of the Evidence
The Defendant asserts that there was insufficient evidence to support either of her
convictions. Based upon our reversal of the conviction in Count 1, and the reason for that
reversal, we address only the argument as to Count 2, false imprisonment. As to the false
imprisonment conviction, the Defendant argues that she should not have been convicted of
false imprisonment because “these measures” were taken to protect the victim. The State
responds that a false imprisonment is not justified by a Defendant’s good intentions and asks
this Court to affirm the conviction.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
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review is whether, after considering the evidence in the light most favorable to the State, “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e); State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This standard applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass,
13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253
(Tenn. Crim. App. 1990)). In the absence of direct evidence, a criminal offense may be
established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241
(Tenn. 1973). “The jury decides the weight to be given 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.’”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451,
457 (Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute on other grounds as stated in State
v. Barone, 852 S.W.2d 216, 218 (Tenn.1993)) (quotations omitted). The Tennessee Supreme
Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given to
the testimony of witnesses. In the trial forum alone is there human atmosphere
and the totality of the evidence cannot be reproduced with a written record in
this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
10
527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate
view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000) (citations omitted).
In this case, the State was required to prove that the Defendant “knowingly remove[d]
or confine[d] another unlawfully so as to interfere substantially with the other’s liberty.”
T.C.A. § 39-13-302(a).
The evidence, viewed in the light most favorable to the State, showed that the
Defendant locked the victim in a small room for two days with no electricity, light, running
water, food, or a working toilet. When she was found, the victim was upset and fearful that
she would be left again. She testified at trial that she did not want to be in the room and was
“glad” when police officers took her out of the room. From this evidence, a jury could find
that the Defendant knowingly confined the victim in violation of Tennessee Code Annotated
section 39-13-302.
Accordingly, we conclude that the proof is sufficient to support the Defendant’s
conviction for false imprisonment beyond a reasonable doubt. The Defendant is not entitled
to relief as to this issue.
C. Admission of Victim’s Testimony at Trial
The Defendant asserts that the trial court should not have allowed the victim to testify
at trial. The Defendant contends that the victim’s “mental abilities were so limited that her
testimony had no probative value” and that the victim’s emotional state while testifying
caused him “unfair prejudice which substantially outweighed any probative value.” The State
responds that the Defendant has waived any argument that the victim’s testimony was
improper because she failed to raise a contemporaneous objection to the testimony at trial.
We agree with the State.
In most cases, the failure to raise a contemporaneous objection to the admission of
evidence at the time the evidence is introduced at trial results in waiver of the particular issue
on appeal. See Tenn. R. App. 36(a); State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim.
App. 2000). The State claims that the Defendant never objected to the victim’s testimony and
that the Defendant had the opportunity to question the victim on cross-examination about the
11
victim wandering out into the street. Because the Defendant did not object to the victim’s
testimony offered by the State, the issue is waived. See Tenn. R. App. P. 36(a) (appellate
relief is generally unavailable when a party “failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of any error.”); State v. Schieffelbein, 230
S.W.3d 88, 118 (Tenn. Crim. App. 2007) (“The failure to make a contemporaneous objection
constitutes a waiver of the issue on appeal.”).
Our Supreme Court has held that appellate courts are not precluded from reviewing
issues under the plain error doctrine. State v. Page, 184 S.W.3d 223, 230 (Tenn. 2006). This
Court may only consider an issue as plain error when all five of the following factors are met:
(1) the record must clearly establish what occurred in the trial court;
(2) a clear and unequivocal rule of law must have been breached;
(3) a substantial right of the accused must have been adversely affected;
(4) the accused did not waive the issue for tactical reasons; and
(5) consideration of the error is “necessary to do substantial justice.”
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see
also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “plain error must be of such a great magnitude that
it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal
quotations and citation omitted).
Under the plain error doctrine, the Defendant is not entitled to relief. The Defendant
cannot establish that the decision not to raise an objection was not tactical. As the State points
out, the Defendant obtained testimony from the victim that was favorable to her theory of
defense. During cross-examination, the victim testified that she frequently wandered into the
road and stopped traffic, confirming the Defendant’s theory that the Defendant’s conduct was
necessary to protect the victim from harm. Accordingly, the Defendant is not entitled to relief
as to this issue.
III. Conclusion
In accordance with the foregoing authorities and reasoning, we affirm the trial court’s
judgment, in part, reverse in part, and remand to the trial court for further proceedings
consistent with this opinion.
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ROBERT W. WEDEMEYER, JUDGE
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