State of Tennessee v. Wayne L. Holt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 17, 2002
STATE OF TENNESSEE v. WAYNE L. HOLT
Direct Appeal from the Criminal Court for Davidson County
No. 99-B-803 J. Randall Wyatt, Jr., Judge
No. M2001-00945-CCA-MR3-CD - Filed November 5, 2002
Appellant, Wayne L. Holt, was indicted by the Davidson County Grand Jury on one count of first
degree felony murder, one count of premeditated first degree murder, and one count of especially
aggravated robbery. At the close of the State’s case-in-chief, the trial court granted Appellant’s
motion for judgment of acquittal as to the count of first degree felony murder and to the count of
especially aggravated robbery, but not as to the remaining count of premeditated first degree murder.
Appellant was convicted by a jury of his peers of the lesser-included offense of second degree
murder and was sentenced, as a Range II multiple offender, to thirty (30) years imprisonment. In this
appeal of right, Appellant raises five (5) issues for our review. He contends that the trial court
committed reversible error in: 1) denying Appellant’s pretrial motion to suppress his statement; 2)
denying Appellant’s motion for judgment of acquittal as to the count of premeditated first degree
murder at the close of the State’s case-in-chief; 3) overruling Appellant’s objection to the State’s
closing argument; and 4) granting the State’s request for a flight instruction. He further contends
that the verdict was against the weight of the evidence. After a thorough review of the record, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Trial Court is Affirmed.
THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.,
and ALAN E. GLENN, JJ., joined.
Bruce Poag, Thompson’s Station, Tennessee (on appeal); Ross E. Alderman, District Public
Defender; Wendy Tucker, Assistant Public Defender; and Jodie Bell, Assistant Public Defender,
Nashville, Tennessee (at trial) for the appellant, Wayne L. Holt.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Dan Hamm, Assistant District Attorney General;
and Sharon Brox, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Appellant was convicted for stabbing to death the victim inside the victim’s home. At trial,
Appellant did not deny having stabbed the victim. Instead, he raised the affirmative defense of self-
defense, claiming that the victim attacked him first with a knife and Appellant protected himself with
his own knife.
On the afternoon of January 29, 1999, Appellant went to the rooming house in North
Nashville where the victim, Calvin Johnson, lived. He came to the house looking for the victim,
according to the testimony of Simone Tibbs, who also lived there with her husband Joseph and was
present at the house that day. Appellant and the victim talked for a while. Then Appellant walked
next door to the construction office, where the victim worked and asked the victim’s brother, James,
a supervisor, whether the victim was paid that day. The victim’s brother replied that he had been
paid, and Appellant left without saying anything else. Mrs. Tibbs saw Appellant come out of the
construction office and walk back into the rooming house, and then leave several minutes later.
James Johnson testified that shortly afterwards, someone ran inside and said that Appellant had
stabbed the victim and to call the paramedics.
Robert Turner, a paramedic, testified that he found the victim lying face up on the bed with
his knees bent over the side of the bed. The victim had a stab wound to the chest. Turner testified
that it is common procedure to do a “soft patdown” of a victim when a paramedic moves an
unconscious victim to be transported. In doing so, a small knife was found in the victim’s back
pocket. The victim was transported to Metro General Hospital, where he was later pronounced dead.
Detective David Imhoff testified that he went to the hospital where the victim had been taken.
He found a small paring knife on the table next to the gurney on which the deceased was lying. He
talked to the paramedics and learned that the knife had been removed from the victim’s back pocket.
LaShonda Stewart knows Appellant and lived a couple of blocks from the victim at the time
of the incident. She testified that Appellant came to her house on the afternoon of January 29, 1999.
She was standing on her porch. She testified that Appellant said he needed to talk to her and that
he had “f---ed somebody up.” Stewart testified that Appellant told her that he had stabbed the
victim, pointing to his chest. She testified that Appellant seemed to be confused and panicked, and
she refused to let him come inside. Stewart watched Appellant leave and saw him get into Joe Batts’
car, which was parked on the corner.
Joseph Batts testified that he was driving in the neighborhood that afternoon, and he saw an
ambulance sitting outside the apartment where the victim was stabbed. He drove a couple of blocks
past and saw Appellant and stopped. Appellant asked him to give him a ride somewhere. They
drove to the store, where Appellant bought a beer, and then they drove to some nearby townhouses
and sat in the parking lot and “smoked dope.” Then, Appellant asked Batts to drive him back to
LaShonda Stewart’s house. When they got close to her house, they saw that it was surrounded by
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police cars, and Appellant told him to drive somewhere else. Appellant asked Batts to drive him to
East Nashville, where Batts dropped him off.
Rosaura DeRios testified that Appellant arrived at her house in East Nashville on the evening
of January 29, 1999. She testified that he stayed at her house for three days because she was ill and
taking medication at the time, and therefore was unable to drive him home that same night.
Motion to Suppress Statements
Appellant asserts that the trial court erred in denying his motion to suppress two separate
statements given to police. Prior to trial, Appellant filed a motion to suppress the statements he gave
to investigating detectives, Gray and West. Appellant argues that the first statement, given to
Detective Gray, was inadmissable because 1) he had not been properly advised of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966); and 2) the statement was a product of coercion. Appellant
argues that the second statement, given to Detective West, was inadmissible because Appellant did
not voluntarily and knowingly relinquish his Miranda rights before giving it. The State contends that
the trial court properly denied the motion. The State argues that Appellant’s statement to Detective
Gray was not the result of an interrogation, and therefore, Miranda warnings were not required. The
State further asserts that the second statement, given to Detective West, was properly preceded by
Miranda warnings and waivers.
At the suppression hearing, Detective Gray testified that he became involved in the
investigation when he was asked by homicide detectives to help in locating Appellant because
Detective Gray had known Appellant’s family for many years. He testified that he contacted
Appellant’s family and advised them of a warrant for Appellant’s arrest. The following day, he
received a call from Appellant’s family, advising him that Appellant was in a particular location.
Detective Gray went to the location, where he found Appellant and told him that he had a warrant
for his arrest. Detective Gray testified that Appellant did not appear to be intoxicated or under the
influence of any controlled substances. However, on cross-examination, he testified that the house
in which he found Appellant looked like a “crack house.”
According to Detective Gray’s testimony, he waited outside while Appellant stayed inside
the house for several minutes. He then went back inside to get Appellant, and they got in his police
car to drive to the criminal justice center. Detective Gray testified that Appellant began crying and
talking about the incident for which he was being arrested. Detective Gray cautioned him that he
did not have to say anything. Appellant responded that he knew he did not have to talk, but he
thought his life was over. Appellant explained to Detective Gray that the victim had owed him fifty
dollars, and when Appellant approached the victim about the fifty dollars, the victim became
belligerent and attacked him. Appellant told Detective Gray that he was protecting himself. He also
told him that after the incident, he put the knife with which the victim was killed in the back of a
pickup truck. Detective Gray testified that he did not read Appellant his Miranda warnings and did
not ask him any questions concerning the incident.
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Detective West, the lead detective in the investigation, also testified at the suppression
hearing. He testified that on the same day Detective Gray located Appellant, he was contacted and
told of Appellant’s arrest. He further testified that when he arrived at the police station to interview
Appellant, he advised Appellant of his rights and Appellant signed a rights waiver form. Detective
West testified that he assessed Appellant’s physical capabilities and determined that he was not too
intoxicated, or otherwise under the influence, to give a statement. Detective West tape-recorded the
statement, which he summarized for the trial court at the hearing. As Detective West remembered
the statement, Appellant went to the house where the victim lived to collect fifty dollars, which the
victim owed Appellant. The victim told Appellant that he did not have the money, so Appellant
went next door to the construction company where the victim’s brother worked and asked if the
victim had been paid that day, to which the victim’s brother replied that he had. Appellant went back
over to the victim’s house to confront him again, and the victim pulled out a knife. Appellant pulled
his knife and swung a couple of times and left, but Appellant did not know if he had stabbed the
victim or not.
Appellant testified at the suppression hearing that he “got high” from around 1:30 a.m. until
10:30 a.m. the morning that Detective Gray arrested him. He testified that he smoked about a gram
of cocaine and drank a half pint of vodka and a quart of beer. He also testified that Detective Gray
waited while he went inside to do more drugs. After he got into the car, Appellant testified that
Detective Gray asked, “what happened, man?” With regard to the taped interview at the police
station, Appellant did not remember Detective West going over his rights with him before
interviewing him. He admitted at the hearing, however, that the signature on the rights waiver form
was his, but he did not remember signing it.
At the conclusion of the hearing, the trial court overruled the Appellant’s motion to suppress
the statements. The record shows that, with regard to Appellant’s first statement to Detective Gray,
the issue of whether to suppress the statement turned on witness credibility. Appellant testified at
the suppression hearing that Detective Gray asked him questions concerning the killing, and
Detective Gray testified that he did not. The trial court gave more weight to the credibility of
Detective Gray’s testimony, and ruled that “there was not an interrogation as required by Miranda.”
With regard to Appellant’s statement to Detective West, the trial court found that Detective West
advised Appellant of his Miranda rights, that Appellant executed a waiver form, and Appellant gave
a voluntary statement. The trial court found that Appellant understood the effect of waiving his
rights and was not in such a condition from drugs and alcohol to render his waiver ineffective.
The issues of whether Appellant was interrogated or coerced by Detective Gray, or whether
he gave a voluntary confession to Detective West are questions of fact. See State v. Morris, 24
S.W.3d 788, 805 (Tenn. 2000); State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996); Childs v.
State, 584 S.W.2d 783, 786-87 (Tenn. 1979). On appeal, the “trial court’s findings of fact in a
suppression hearing will be upheld unless the evidence preponderates otherwise.” State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of demonstrating that the evidence
preponderates against the trial court’s findings. Id. The trial court’s application of the law to the
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facts, however, is subject to a de novo standard of review. State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997).
Because the trial court is in a superior position to that of the appellate courts to judge witness
credibility, it should be afforded wide latitude of discretion in determining whether Miranda
warnings were required, “and unless it clearly appears that such discretion has been abused and the
defendant’s rights infringed upon, appellate courts will not intervene.” State v. Nakdimen, 735
S.W.2d 799, 802 (Tenn. Crim. App. 1987). Nevertheless, we may consider the “testimony presented
at trial . . . in deciding the propriety of the trial court’s ruling on a motion to suppress.” State v.
Perry, 13 S.W.3d 724, 737 (Tenn. Crim. App. 1999).
First, we must determine whether Appellant’s statement to Detective Gray should have been
preceded by Miranda warnings. The United States Supreme Court held in Miranda v. Arizona, 384
U.S. at 444, that in order to safeguard the constitutional protections afforded in criminal proceedings,
“the prosecution may not use statements...stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-
incrimination.”
Because Miranda is only implicated when the defendant is questioned while in police
custody, our initial inquiry is whether Appellant was subjected to a “custodial interrogation.” The
Miranda Court defined “custodial interrogation” as “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom of action
in any significant way.” Id. Clearly, the Appellant in this case was in police custody at the time he
made the statement to Detective Gray. He knew that Detective Gray had a warrant for his arrest, and
he was being transported to the police station in Detective Gray’s car when he made the statement.
The next issue is whether the Appellant was subjected to an interrogation by Detective Gray.
The Miranda Court defined interrogation as “questioning initiated by law enforcement officers.”
384 U.S. at 444. In Rhode Island v. Innis, 446 U.S. 291, 301 (1980), however, the Court made clear
that interrogation is not limited to express questioning by police, “but also to any words or actions
on the part of the police (other than those normally attendant to arrest and custody) that the police
should know are likely to invoke an incriminating response from a suspect.”
The State argues that Appellant’s statement to Detective Gray was unsolicited and was given
knowingly and voluntarily. Appellant contends that the police used coercive tactics to obtain the
confession by having Detective Gray, a close family friend, take Appellant into custody, and it was
because Appellant trusted Detective Gray that he made the incriminating statement. After admitting
on cross-examination that he had been arrested and read his rights on several prior occasions,
Appellant and the prosecutor had the following exchange:
[PROSECUTOR]: But you know what your rights are. And you knew you didn’t
have to talk to Detective Gray, didn’t you?
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[APPELLANT]: Well, I ain’t never really been that high to, you know.
Detective Gray is a friend of mine. Would you talk to him if
you had a friend who you think was going to help you?
[PROSECUTOR]: And that’s why you talked to him, wasn’t it?
[APPELLANT]: After he asked me, yes, ma’am.
[PROSECUTOR]: You thought he was going to help you, right?
[APPELLANT]: (No response).
Appellant relies on our supreme court’s opinion in State v. Branam, 855 S.W.2d 563 (Tenn.
1993), and argues that he was “psychologically” coerced into confessing to Detective Gray. In
Branam, the “interrogation” was made by the defendant’s aunt, who was acting as an undercover
agent for the state. Id. at 568. The supreme court, nevertheless, found that the defendant’s trust in
his family member was “misplaced,” and affirmed the trial court’s admission of the statement. Id.Here, while Detective Gray may have been a close friend of Appellant, Appellant knew that he was
a suspect in a murder investigation and that Detective Gray was the arresting police officer. In
Branam, the supreme court recognized that “under some circumstances, deceptive interrogation
practices by law enforcement officers may be so unfair that they offend notions of due process.” Id.
at 269. We conclude that this is not such a case, and Appellant’s statement to Detective Gray was
properly admitted. The evidence does not preponderate against the trial court’s findings that
Detective Gray did not question Appellant on the way to the police station, but rather Appellant
volunteered his statement.
Next, we consider whether Appellant effectively waived his rights prior to giving his
statement to Detective West at the police station. Again, we apply the standard articulated by the
supreme court in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Appellant must demonstrate that the
evidence preponderates against the trial court’s findings. Id. at 23. Intoxication is not alone
sufficient to bar the introduction of statements made by an accused if evidence also shows that the
accused was capable of understanding his rights. State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim.
App. 1985). The evidence at the suppression hearing reveals that Appellant signed a rights waiver
form. Appellant’s criminal history and apparent understanding of the seriousness of the charges
against him make clear that he was capable of understanding his rights as an accused. Appellant
testified at the suppression hearing that he knew that the police were investigating a homicide and
indicated that he understood the seriousness of the charges against him. Furthermore, his testimony
reveals that he had no trouble remembering events up to and after the time when Detective West
advised him of his rights.
We conclude that Appellant’s constitutional rights were not violated. The evidence in the
record supports the trial court’s findings that Appellant was advised of his Miranda rights, that he
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waived those rights, and that he gave a voluntary statement. Thus, the statements were properly
admitted. Appellant is not entitled to relief on this issue.
Motion for Judgment of Acquittal
Appellant contends that the trial court erred in denying his Motion for Judgment of Acquittal
as to the count of first degree premeditated murder at the close of the State’s proof. A trial court
must grant a motion for judgment of acquittal if the evidence is legally insufficient to sustain a
conviction of the charged offense. Tenn. R. Crim. P. 29. In making its determination, the trial court
may not address the weight of the evidence, but must afford the State the strongest legitimate view
of the evidence, including all reasonable inferences to be drawn from the evidence, and disregard
any evidence introduced by the accused that conflicts with the evidence introduced by the State.
State v. Blanton, 926 S.W.2d 953, 957-58 (Tenn. Crim. App. 1996); State v. Campbell, 904 S.W.2d
608, 611 (Tenn. Crim. App. 1995).
We apply the same standard in reviewing a denial of a motion for judgment of acquittal as
the trial court applies in granting or denying such a motion. State v. Adams, 916 S.W.2d 471, 473
(Tenn. Crim. App. 1995). We must determine whether any reasonable trier of fact could have found
the essential elements of the charged offense beyond a reasonable doubt. Tenn. R. App. P. 13(e);
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In so doing, we review the evidence in a light
most favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
In challenging the trial court’s denial of his motion, Appellant argues that the State failed to
establish beyond a reasonable doubt the element of premeditation. We need not decide this issue,
however, because the jury convicted Appellant of second degree murder, defined as “[a] knowing
killing of another,” Tenn. Code Ann. § 39-13-210(a)(1), and the record is replete with evidence that
is sufficient to support the conviction. Appellant is not entitled to relief on this issue.
Verdict Against the Weight of the Evidence
Appellant argues that the weight of the evidence preponderates against the verdict of the jury.
Pursuant to Rule 33(f) of the Tennessee Rules of Criminal Procedure, the trial court has the authority
to reverse a jury’s verdict when it determines that the verdict is contrary to the weight of the
evidence. This court, however, may not reweigh or reevaluate the evidence on appeal. See State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The accuracy of the trial court’s determination as a
“thirteenth juror” is not subject to appellate review. State v. Moats, 906 S.W.2d 431, 435 (Tenn.
1995) (citing State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993)). Once the trial court
approves the verdict of the jury and denies a defendant’s request for a new trial, our review is
limited. Burlison, 868 S.W.2d at 719. An appellate court may grant a new trial only where the trial
court has “failed to act as the thirteenth juror,” as it is the “only practically effective remedy.”
Moats, 906 S.W.2d at 435 (emphasis added). We conclude, however, that the trial court properly
exercised its authority to act as thirteenth juror, and therefore, we will not disturb its determination
that the weight of the evidence supported the jury verdict.
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While a defendant may not challenge on appeal the weight of the convicting evidence, he or
she may challenge the sufficiency of the convicting evidence. To the extent that Appellant’s
argument may be construed as a challenge to the sufficiency of the evidence, we conclude that the
evidence was sufficient. Viewing the evidence in a light most favorable to the State, Appellant
confronted the victim inside the victim’s house, armed with a knife, and stabbed the victim in his
chest and neck. He then left the scene of the crime and disposed of the weapon. He also avoided
an opportunity to confront police and stayed away from the area of the crime for three days. The jury
rejected Appellant’s defense of self-defense. Any rational trier of fact could conclude beyond a
reasonable doubt that Appellant unlawfully and knowingly killed the victim. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Appellant is not entitled to relief on this issue.
Appellant’s Objection to State’s Closing Argument
Appellant contends that the trial court committed prejudicial error in overruling Appellant’s
objection to the State’s closing argument. During closing arguments, the State rhetorically asked the
jury, whether “it was self-defense when you walk into somebody else’s house [and] demand money
from him.” Appellant made a timely objection, and the trial court overruled the objection. Appellant
argues that the State’s remark suggesting a robbery was improper because there was no proof in the
record that Appellant demanded money from the victim.
Closing argument is a valuable tool for the parties during the trial process. State v.
Humphreys, 70 S.W.3d 752, 767 (Tenn. Crim. App. 2001). Attorneys are generally given wide
latitude in the scope of their arguments. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994).
Consequently, a trial court is accorded wide discretion in its control of the closing arguments. State
v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). We will not interfere with that discretion
in the absence of abuse. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). To show error, a
defendant must show that the argument was so inflammatory or the conduct so improper that it
affected the verdict to the defendant’s detriment. Zirkle, 910 S.W.2d at 888.
We conclude that the State’s comment during closing argument, suggesting that Appellant
demanded money from the victim, was not improper, and the trial court did not err in overruling
Appellant’s objection. Evidence was introduced at trial from which the jury could have inferred that
the victim owed Appellant money for drugs. The victim’s brother testified that he was aware of the
victim’s drug habit and that the victim owed people money for drugs, stating that he knew the victim
owed “one person, in particular.” Furthermore, the trial court instructed the jury that any statements
made that are not supported by the evidence should be disregarded. Appellant is not entitled to relief
on this issue.
Flight Instruction
Appellant contends that the trial court committed prejudicial error in granting the State’s
request for a flight instruction. He argues that his actions did not indicate an attempt to flee or avoid
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apprehension and prosecution, and the instruction improperly created an inference of guilt for the
jury.
The record shows that upon leaving the victim’s house, Appellant went to LaShonda
Stewart’s house, who testified at trial that when he arrived at her house, he appeared to be confused
and panicked, and she refused to let him in her house. She testified that he drove away with Joe
Batts, who was parked on the corner. Stewart testified that a minute later, the police arrived, looking
for Appellant.
Joe Batts testified that after he drove Appellant to the store to get a beer and they sat in a
parking lot, “smoking dope,” Appellant asked him to drive him back to LaShonda Stewart’s house.
Batts testified that when they got to the corner, they saw eight or nine police cars surrounding
Stewart’s house. Batts asked Appellant if he wanted to go see what was going on, but Appellant said
no and told Batts to drive him to East Nashville, where Batts dropped him off.
On that same night, after the killing, Appellant arrived at Rosauro DeRios’ house, where he
stayed for three days. Appellant contends that he only stayed at Ms. DeRios’ house for so long
because she was too ill and drowsy from medication to drive him back to his home in North
Nashville. Ms. DeRios testified that during those three days, Appellant watched movies with her
children and ate popcorn and candy.
At the conclusion of proof, the trial court instructed the jury as follows:
The flight of a person accused of a crime is a circumstance which, when considered
together with all the facts of the case, may justify an inference of guilt....Whether the
evidence presented proves beyond a reasonable doubt that the defendant fled is a
question for your determination....it takes both a leaving the scene of the difficulty
and a subsequent hiding out, evasion, or concealment in the community...to constitute
flight....[Y]ou may consider the fact of flight, if flight is so proven, together with all
the other evidence when you decide the guilt or innocence of the defendant.
(Emphasis added).
Appellant contends that he did not hide out or evade police by staying at Ms. DeRios’ house
for three days. He also asserts that when he returned to North Nashville, he learned that an arrest
warrant had been issued for him and asked someone to call Detective Gray on his behalf and make
arrangements for his arrest. Appellant argues that the proof does not satisfy the second element
necessary for flight, “a subsequent hiding out, evasion, or concealment in the community.” See State
v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989).
In State v. Richardson, 995 S.W.2d 119, 128-129 (Tenn. Crim. App. 1998), this Court held
that a flight instruction was warranted where the defendant left the scene of a shooting and remained
hidden in the community for five days. The defendant in that case argued that it was against public
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policy to penalize him because he eventually turned himself in to the police, but our Court rejected
that argument and affirmed the trial court’s instruction on flight.
In State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994), the supreme court addressed the
propriety of a flight instruction where the defendant abandoned a stolen car filled with stolen goods
and remained free for one year. The court found circumstantial evidence of an immediate flight
because the facts led to a reasonable inference that the defendant had seen the flashing lights of a
passing police car, which was responding to another call nearby, and concealed himself and left the
scene. Id. Here, the record shows that Appellant saw police at LaShonda Stewart’s house, and he
then went to Ms. DeRios’ house, where he stayed for three days. That evidence is sufficient to
justify a flight instruction in this case.
In Smith, our supreme court held that even if the trial court erred by giving an instruction on
flight, the error was not reversible because the jury was instructed that the question of “whether the
Defendant fled was a question solely for their decision . . . and that flight alone was insufficient to
prove guilt.” Id. The court held that the instructions, which left in the jury’s discretion any finding
of flight or inference of guilt, “coupled with the overwhelming proof of Defendant’s guilt, renders
any error as to the flight instruction harmless.” Id. We hold that the same would be true in this case,
and therefore, Appellant is not entitled to relief on this issue.
CONCLUSION
After a thorough review of the record, we affirm the judgment of the trial court.
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THOMAS T. WOODALL, JUDGE
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