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concluding that there was no fatal variance when an indictment named "Margie Adams" as the victim but the proof at trial showed that the victim was actually "Ramona Reid" because the name of the victim was not an essential element of the crime of assault
Summary of this case from State v. SewellOpinion
No. M2006-00286-CCA-R3-CD.
Assigned on Brief January 23, 2007.
Filed on June 21, 2007.
Direct Appeal from the Criminal Court for Davidson County No. 2004-B-1463 Seth Norman, Judge.
Judgment of the Criminal Court Affirmed.
Justin Johnson, Nashville, Tennessee, for the appellant, Mark A. Ammons.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.
THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W. WEDEMEYER, JJ., joined.
OPINION
Defendant, Mark A. Ammons, was indicted on one count of assault, a Class A misdemeanor, and one count of theft of property less than $500.00, a Class A misdemeanor. After a bench trial, Defendant was found guilty of the offense of assault and not guilty of theft of property. Following a sentencing hearing, the trial court sentenced Defendant for his assault conviction to thirty days to be served in the county workhouse. On appeal, Defendant argues that (1) the evidence is insufficient to support his assault conviction; (2) the trial court erred in permitting the State to amend the indictment after jeopardy attached; and (3) the trial court erred in not sustaining Defendant's objection to the introduction of hearsay evidence. After a thorough review, we conclude that the trial court erred in allowing the State to amend count one of the indictment without Defendant's consent after jeopardy attached, but that such error was harmless beyond a reasonable doubt. We therefore affirm the judgment of the trial court.
I. Background
Ramona Reid was a loss prevention investigator for Home Depot at the time of the incident at the company's Bellevue location. Ms. Reid testified that on September 19, 2003, she was in the store's parking lot when she saw Defendant approach a group of azaleas which were located outside the store's entrance. Defendant put two azalea shrubs in his cart and then pushed the cart into the parking lot. Ms. Reid ran toward Defendant, calling out that Defendant had to pay for the shrubs. Ms. Reid said that she was not wearing a uniform, but she identified herself as a member of the store's loss prevention team. Defendant turned his cart around and headed for the contractor's entrance to the store.
Ms. Reid was approximately twenty to thirty seconds behind Defendant. When she entered the store, Defendant was at a checkout counter. The sale had been rung up, and Defendant was offering his credit card to Nelda Lusk, the cashier, as payment. Ms. Reid placed her hand on Defendant's jacket and told Defendant that they needed to discuss the incident. Ms. Reid said that Defendant grabbed Ms. Reid's arm, and "there was a brief struggle." Ms. Reid said that Defendant stepped on her foot at one point during the struggle and pushed her arm away. Ms. Reid stated on cross-examination that it hurt when Defendant stepped on her foot.
Ms. Reid followed Defendant into the parking lot. Ms. Reid said that she and Defendant "were both grabbing at each other." Ms. Reid had a grip on Defendant's shirt, and Defendant slipped out of his shirt. Ms. Reid said she decided not to escalate the situation in accordance with the company's loss prevention policy, and Defendant got into his truck and drove off.
Ms. Lusk testified that she had rung up Defendant's azalea shrubs on the cash register when Ms. Reid entered the store. Ms. Lusk described Ms. Reid's tone as "reasonable." Ms. Lusk said that when Ms. Reid spoke to Defendant, he "stepped away from her," and left the building. On cross-examination, Ms. Lusk said that she did not see Defendant push or shove Ms. Reid at the checkout counter.
Jeff Bennett, a Home Depot employee, was in the parking lot when Ms. Reid and Defendant left the store. Mr. Bennett said he saw Ms. Reid and Defendant struggle, and Ms. Reid put a hand on Defendant's arm.
Donna Ammons, Defendant's wife, testified that she and Defendant were looking at chandeliers in the Bellevue Home Depot Store on September 19, 2003. As they were leaving, Ms. Ammons told Defendant to pick out two azalea shrubs. Ms. Ammons returned to her car and drove up to Defendant in the parking lot. Ms. Ammons handed Defendant his wallet so that he could pay for the shrubs and then drove out of the parking lot.
Defendant testified on his own behalf. Defendant said that he put two azalea shrubs in a cart and then waited for Ms. Ammons to drive by and hand him his wallet. Defendant pushed his cart toward the contractor's entrance to pay for the shrubs. Defendant said that he did not notice Ms. Reid in the parking lot. Defendant said that his purchase had been rung up when Ms. Reid approached him and grabbed him by the arm. Ms. Reid identified herself by three initials, but Defendant did not understand their meaning. Defendant said he was "embarrassed" and "upset," and tried to leave the store. Ms. Reid followed Defendant into the parking lot and grabbed his shirt. The shirt ripped and fell off, and Defendant left the store in his truck. Defendant denied stepping on Ms. Reid's foot. Defendant said that he intended to return to the store later and find out why Ms. Reid had confronted him.
II. Amendment to the Indictment
Five days following the incident on September 19, 2003, at the Home Depot Store in Bellevue, Defendant was charged in an arrest warrant with committing the offense of misdemeanor assault by causing bodily injury to Ramona Reid, an employee of Home Depot. A preliminary hearing was held in the General Sessions Court of Davidson County, and the case was bound over to the Davidson County Grand Jury.
Subsequently, on May 28, 2004, the Grand Jury returned an indictment charging Defendant with the misdemeanor assault of Margie Adams on September 19, 2003. Ramona Reid, the alleged victim in the arrest warrant, as well as Margie Adams, were listed as witnesses on the indictment. The address of both women was listed as the Home Depot store in Bellevue.
Defendant waived his right to a jury trial, and a bench trial was held on January 18, 2005. Ramon Reid was called as the State's first witness. Immediately following Ms. Reid giving her oath to tell the truth, Defendant's counsel made an oral motion for the trial court to dismiss the assault charge. Defendant correctly asserted that jeopardy had attached. He further brought to the attention of the trial court that while the State's position was that Defendant had assaulted Ramona Reid, the indictment alleged that he had assaulted Margie Adams, "a witness the State does not even have here."
The trial court denied Defendant's motion based upon the fact that no proof had yet been heard. The State proceeded to present its proof and called as witnesses, Ramona Reid, Nelda Lusk, and Jeff Bennett, all of whom were employees of the Home Depot store. Margie Adams was not called as a witness by the State or Defendant.
Immediately upon the close of the State's proof, the prosecutor moved to amend the indictment. The prosecutor stated as follows:
Your Honor, that's the State's proof. At this point, Your Honor, I'd like to amend the indictment as to count one to reflect Ramona Reed [sic] as the victim. That's obviously a clerical error.
Defendant's counsel objected to the proposed amendment to the indictment, stating:
[The State] already closed [its] proof and we are getting ready to make a motion to dismiss count one because the State, for whatever reason, has indicted [Defendant] for an assault on the wrong person.
In granting the State's motion, the trial court stated:
There is wide allowance with regard to the amending of the indictment. It is normally allowed if it does not increase the penalty of the crime charged. This one does not. I'll allow the amendment.
Analysis of the issue raised by Defendant on appeal necessitates a review of case law regarding the amendment of indictments, necessary allegations which must be alleged in indictments, and harmless error versus reversible error. We can comfortably assume that the prosecutor's trial preparation was sufficient to know the facts of the case because of the identity of the witnesses called to testify. A modicum of additional preparation, that is, reading the indictment prior to trial, would have necessarily revealed a problem that presumably could have been readily cured prior to jeopardy attaching. In addition, the tactic of delaying a motion to amend until the close of the State's proof, rather than immediately upon becoming aware of a problem before the first witness testified, results in an additional fact which must be weighed in determining whether any error by the trial court is reversible or harmless.
Clearly, in this bench trial, jeopardy attached as to the indictment charging Defendant with assault (of Margie Adams), when Ramona Reid, the first witness, was given the oath to testify truthfully. State v. Daniels, 531 S.W.2d 795, 801-02 (Tenn.Crim.App. 1975).
When a defendant properly objects, an indictment cannot be amended after jeopardy attaches. State v. Carter, 121 S.W.3d 579, 587 n. 5 (Tenn. 2003)("Tennessee rule of Criminal Procedure 7(b) only allows for an indictment to be amended without consent of the defendant if it is done before jeopardy attaches."); State v. Lindsey, 208 S.W.3d 432, 439 (Tenn.Crim.App. 2006); State v. Lane, 673 S.W.2d 874, 875 (Tenn.Crim.App. 1983).
Accordingly, it was error for the trial court to grant the State's motion to amend the indictment; consequently, the indictment, at the close of the State's case and thereafter should have remained as a charge that Defendant assaulted Margie Adams. This does not end our inquiry. Under our case law, we must first determine if the amendment was an "unnecessary" amendment. If so, there was no reversible error.
In State v. Clark, 2 S.W.3d 233 (Tenn.Crim.App. 1998), one issue addressed by this Court was whether a count of an indictment charging the defendant with attempted aggravated robbery was fatally deficient because it failed to provide the name of the victim. While the Clark court did hold that the attempted aggravated robbery count had to be dismissed because it otherwise failed to charge an offense, id. at 236, the court held that "the identity of the victim is not an essential element of the crime, and the charging instrument is not defective merely for failing to identify the victim." Id. at 235. The Clark court also noted that if the charged offense was based upon its perpetration against a certain class of individuals (i.e. police officers, children less than thirteen years of age) then identification of the victim could be an essential allegation of a valid indictment, thus resulting in a situation where identity of the victim identifies the crime. Id. In reaching its result, the Clark court relied upon previous cases which have held that a change in the victim's name pursuant to an amendment of an indictment does not operate to change the offense charged. Id. (citing State v. Hensley, 656 S.W.2d 410 (Tenn.Crim.App. 1983); State v. Preston Clark, No. 02C01-9504-CR-00100, 1996 WL 417669 (Tenn.Crim.App., at Jackson, July 26, 1996), no perm. to appeal filed).
There is no indication in either of these cases, however, that the indictment was amended over the objection of the defendant and after jeopardy attached in contravention of Rule 7(b), Tennessee Rules of Criminal Procedure. In Preston Carter, it is specifically noted that the amendment was prior to jeopardy attaching. Preston Carter, 1996 WL 417669, at *2.
In State v. Lindsey, 208 SW.3d 432 (Tenn.Crim.App. 2006), the indictment erroneously charged that the defendant did unlawfully "sell and, or deliver" cocaine. Our court held that while the indictment was defective by alleging two separate and distinct offenses, the defendant's motion to dismiss the indictment was waived because it was not raised prior to trial pursuant to Tennessee Rule of Criminal Procedure 12(b)(2) and (f). Id. at 439. Defense counsel made a tactical decision not to raise the issue until after jeopardy had attached.
In Lindsey, the defendant also argued on appeal that the trial court erred by granting the State's motion to amend the indictment over the defendant's objection and after jeopardy had attached. The amendment deleted the words "and, or deliver" and thus resulted in the indictment charging defendant only with the sale of cocaine. The defendant made his motion to the trial court to dismiss the improperly worded indictment midway through the direct examination of the police officer who directly controlled the confidential informant who purchased cocaine from the defendant. It appears that the State promptly moved to amend the indictment at the same time that the trial court denied the defendant's motion to dismiss the indictment. Thus the amendment came prior to the close of the State's case-in-chief.
In Lindsey, our court held that the trial court erred by amending the indictment over the defendant's objection and after jeopardy had attached. However, we held that the error was harmless beyond a reasonable doubt because: (1) removal of the "delivery" charge did not impermissibly change the charged offense; and (2) the defendant had ample notice of the offense charged included the facts of the sale, the date of the offense, the amount of and type of substance sold, and the statute which was violated. Id. at 441.
In Hensley, our court reviewed the appeal of a case with substantially similar facts as the case sub judice. The defendant was charged with vehicular homicide and aggravated assault. The aggravated assault count alleged that the victims were Stanley Kaiser, Jerry L. Buhl, and Paul L. Walker. Elsewhere on the indictment Paul Wolfenbarger was listed as a witness. On the first day of the trial, the prosecutor moved to amend the indictment to substitute the name "Paul L. Walker" with the correct name of the victim, "Paul Wolfenbarger."
This court, in an opinion by Judge Daughtrey, found no error by the trial court in allowing the amendment, stating that "[t]he general rule appears to be that amendments to correct errors in the victims' names are permissible." Hensley, 656 S.W.2d at 413. The court noted that the amendment did not result in the defendant being charged with additional or different offenses. Id. One difference between Hensley and Defendant's case is that it appears the amendment in Hensley was made prior to jeopardy attaching.
In State v. Lane, 673 S.W.2d 3874 (Tenn.Crim.App. 1984), decided a few months after Hensley, Judge Daughtrey again authored the opinion. In Lane, the motion to amend the indictment was made after jeopardy attached. The defendant was charged in count one of the indictment with driving a vehicle without a license on January 23, 1982. In count two, he was charged with DUI committed on January 23, 19__. In count 3, it was alleged that on January 23, 1982, he committed the DUI alleged in count two at a time when he had two prior convictions for DUI. After reading the indictment to the jury and noticing the blank space in count two, the prosecutor moved to amend the indictment to insert "82" into the blank space. The motion was granted over the defendant's objection.
The defendant argued on appeal that without the full date in count two, that count was insufficient as a matter of law, and because the trial court erred by amending the indictment after jeopardy had attached, the conviction should be reversed. Our court held that since there was no requirement to allege an exact date in connection with the crime charged, an amendment was unnecessary, and therefore allowing "an unnecessary amendment did not constitute reversible error." Id. at 875. Our court stated, "[w]e thus decline to reverse on the basis of the typographical omission in count two or on the basis of the putative amendment to that count." Id.
In State v. Brown, 795 S.W.2d 689 (Tenn.Crim.App. 1990), the defendant was convicted of concealing stolen property, a 1976 Pontiac Firebird. The indictment alleged the VIN to be "2S87M6N598021," and the State moved to amend the indictment, after jeopardy had attached, to add an additional "8" to the VIN. Our Court rejected the defendant's argument that the trial court erred by permitting the amendment. In so doing, we relied on Lane, and held,
[a]mending an indictment to correct a typographical omission which was an unnecessary amendment is an exception to the rule that amendments are not allowed over the objection of a defendant once jeopardy has attached.
Id., at 695 (emphasis added).
Our review of the applicable case law leads to the following conclusions in the case sub judice:
(1) Unless the amendment changing the victim from "Margie Adams" to "Ramona Reid" was an unnecessary amendment to correct a typographical error or omission, the trial court erred by allowing the amendment after jeopardy had attached. Tenn. R. Crim. P. 7(b); Lindsey, 208 S.W.3d at 441; Brown, 795 S.W.2d at 695; Lane, 673 S.W.2d at 875; Preston Carter, 1996 WL 417669, at *2.
(2) Even if the trial court erred, this type of error can be harmless error under certain circumstances. Lindsey, 208 S.W.3d at 441; Preston Carter, 1996 WL 417669, at *2.
(3) The identity of the victim in a charge of misdemeanor assault is not an essential element of the crime and thus if the indictment does not identify the victim, this alone does not result in the indictment being defective. Clark, 2 S.W.3d at 235.
It is clear that if the indictment had not named a victim of the charged offense, an "amendment" to add Ramona Reed's name as the victim would have been unnecessary, and accordingly would actually not have been an amendment and therefore not error. Clark, 2 S.W.3d at 235; Brown, 795 S.W.2d at 695; Lane, 673 S.W.2d at 875. Also, if the amendment served to only a correct a "typographical error," then it could be an "unnecessary" amendment and therefore not error. Brown, 795 S.W.2d at 695; Lane, 673 S.W.2d at 875.
We have been unable to find a clear definition of "typographical error" that addresses the situation here. "Typographical error" would definitely include misspelled names or an incorrect or missing number in a thirteen-character serial number. We are hesitant, however, to conclude that an erroneous name which conclusively identifies a completely different person from the one intended as the named victim of an offense is always a "typographical error." However, as previously noted, there is no requirement to allege the name/identity of the victim in a misdemeanor assault case. See Clark, 2 S.W.3d at 235. Thus, if the indictment in the case sub judice had not named the victim, it would have been unnecessary to amend the indictment to insert "Ramona Reid" as the victim's name.
If the trial court in the case sub judice had denied the State's motion to amend the indictment, the trial would have proceeded to its conclusion as a bench trial with an indictment that alleged that the victim of assault was Margie Adams. Ms. Adams, though listed on the indictment as a witness to be subpoenaed, did not testify, and there was absolutely no proof presented at trial concerning any assault upon Margie Adams.
Defendant moved for a judgment of acquittal after the State closed its proof and the indictment had been "amended." It appears from the record, however, that Defendant intended to do so prior to the State's motion to amend the indictment, presumably on the basis of a fatal variance between the allegations in the indictment and the proof presented at trial.
Under earlier common law, Tennessee followed a stringent variance rule. Bolton v. State, 617 S.W.2d 909, 910 (Tenn.Crim.App. 1981). That is, if a person or thing is named in the indictment as the subject of the charged offense, even though unnecessarily so, the person or thing becomes part of the description of the offense. Daughtery v. State, 221 Tenn. 56, 424 S.W.2d 414, 415 (1968). "Any variance between that indictment and the State's proof as to this description constitutes a fatal defect." Id. (citing Cobb v. State, 201 Tenn. 676, 301 S.W.2d 370 (1957); Johnson v. State, 148 Tenn. 196, 253 S.W. 963 (1923)).
In State v. Moss, 662 S.W.2d 590 (Tenn. 1984), our supreme court laid aside "the early common law rule that very strict conformity was required between the allegations of the indictment and the proof, even in minor or immaterial respects." Id. at 592. The Moss court adopted the following test for determining whether a variance between the allegations contained in the indictment and the proof at trial is fatal:
Unless substantial rights of the defendant are affected by a variance, he has suffered no harm, and a variance does not prejudice the defendant's substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial, and (2) if the variance is not such that it will present a danger that the defendant may be prosecuted a second time for the same offense; all other variances must be considered to be harmless error.
Id.
In State v. Mayes, 854 S.W.2d 638 (Tenn. 1993), the indictment alleged that the defendant sold a controlled substance to Shirley Ward on or about October 25, 1989. The proof at trial established that the defendant in fact sold the illegal drugs to Jeanie Hopson, a friend of Ms. Ward, to whom Ms. Ward had provided the necessary funds with which to complete the transaction. Id. at 639. Under the Moss test, the Mayes court concluded "that where the indictment specifies the purchaser of illegal narcotics but the proof reveals that another person made the actual buy, the variance is not material and does not prejudice the defendant's substantial rights, provided (1) the indictment otherwise sufficiently informs the defendant of the charge against him such that he will not be misled and can adequately plan a defense and (2) the variance is such that the defendant cannot be prosecuted again for the same offense due to double jeopardy principles."
The court further concluded that because the identity of the purchaser is not a statutory element which must be alleged in the indictment or proved at trial in order to support a conviction, "the allegation in the indictment that the defendant sold the illegal narcotic to Ward can be treated as surplusage when viewed in the context of the statements below." Id. at 642.
Nor did the misidentification of the buyer in the indictment impair the defendant's ability to adequately prepare for trial or defend himself. The court observed:
[a]s noted above, T.C.A. § 39-6-417(a) does not even mention the purchaser. The gravamen of the offense is the sale itself. The identity of the actual purchaser serves only to describe the offense charged and forms no part of its required substance. The indictment in this case correctly identified the Defendant, the crime alleged, the type of drug sold, and the date and place of the sale. The Defendant knew he was defending the charge of an unlawful sale under T.C.A. § 39-6-417(a) of a specified drug at the time and place in question. The Defendant was thus sufficiently informed of the nature of the offense so as to adequately prepare for trial. Accordingly, the variance did not affect the substantial rights of the Defendant. It did not impair his ability to prepare his case or defend himself. We hold that the Defendant has failed to establish a material variance so as to prejudice his rights.
Id.
Finally, the court concluded that the indictment, when considered with the record, "would certainly prohibit another prosecution for the drug sale at the time and place specified" in the indictment. Id. (concluding that the defendant "[t]he record leaves no doubt that the defendant has been once placed in jeopardy for the sale of the drugs at the time and place set forth in the indictment").
"A variance between an indictment or a subsequent bill of particulars and the evidence presented at trial is not fatal unless it is both material and prejudicial." State v. Shropshire, 45 S.W.3d 64, 71 (Tenn.Crim.App. 2000) (citing State v. Moss, 662 S.W.2d 590, 92 (Tenn. 1984); State v. Ealey, 959 S.W.2d 605, 609 (Tenn.Crim.App. 1997)) (emphasis added).
Defendant was arrested upon the authority of an arrest warrant alleging that he had committed an assault upon Ramona Reid. He received a preliminary hearing on this charge where Ramona Reid testified in the General Sessions Court. The General Sessions judge determined that probable cause existed that the crime of assault was committed against Ramona Reid and that Defendant committed the crime on September 19, 2003. The case was bound over for consideration by the Grand Jury.
It was not essential for the validity of the indictment for Ms. Reid's name to be alleged in the indictment. For whatever reason, the indictment made an unnecessary allegation that Margie Adams was the name of the victim. There is absolutely nothing in the record to indicate that Defendant was caught by surprise at trial. Moreover, the indictment when considered with the record makes it clear that Defendant has been once placed in jeopardy for the commission of an assault against a Home Depot employee on September 19, 2003 and cannot again be prosecuted for the assault described in the indictment.
Based on the foregoing, under our case law, the difference in the proof at trial (assault of Ramona Reid) and the unnecessary allegation of the victim's name in the indictment (Margie Adams) was not a fatal variance. Defendant is not entitled to relief on this issue.
III. Sufficiency of the Evidence
Defendant argues that the evidence is insufficient to support a conviction of assault because there was no evidence that he caused bodily injury to Ms. Reid. Defendant contends that Ms. Lusk's testimony corroborated his testimony at trial that he avoided contact with Ms. Reid at the checkout counter.
In reviewing Defendant's challenge to the sufficiency of the convicting evidence, we must review the evidence in a light most favorable to the prosecution in determining whether a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). Once a jury finds a defendant guilty, his or her presumption of innocence is removed and replaced with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of overcoming this presumption, and the State is entitled to the strongest legitimate view of the evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Questions concerning the credibility of witnesses and the weight and value to be afforded 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). Accordingly, in a bench trial, the trial judge, as the trier of fact, must resolve all questions concerning the credibility of witnesses and the weight and value to be given the evidence, as well as all factual issues raised by the evidence. State v. Ball, 973 S.W.2d 288, 292 (Tenn.Crim.App. 1998). The trial judge's verdict carries the same weight as a jury verdict. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). These rules are applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim. App 1990).
"A person commits assault who . . . intentionally, knowingly or recklessly causes bodily injury to another" or causes that person "to reasonably fear imminent bodily injury." T.C.A. § 39-13-101(a)(1) and (2). "`Bodily injury' includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty[.]" Id. § 39-11-106(a)(2).
Ms. Reid testified that when she approached Defendant at the checkout counter, a struggle ensued during which Defendant grabbed her arm and, at some point, stepped on her foot. Although there is no evidence that Defendant's conduct left a bruise or other visible physical injury, "bodily injury" includes physical pain. Ms. Reid testified that it hurt when Defendant stepped on her foot. See State v. Terry Clark, No. M2003-01925-CCA-R3-CD, 2004 WL 315141 (Tenn.Crim.App., at Nashville, Feb. 19, 2004), no perm. to appeal filed (concluding that the victim's testimony that defendant's kick to the victim's leg "hurt at the time" was sufficient to support a finding that the defendant's conduct caused physical pain). The testimony of a victim alone is sufficient to support a conviction. State v. Strickland, 885 S.W.2d 85, 87 (Tenn.Crim.App. 1993). Here, the trial court as the trier-in-fact heard the witnesses' testimony first-hand and chose to accredit the testimony of the victim. See State v. Wright, 836 S.W.2d 130, 134 (Tenn.Crim.App. 1992). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).
Based on our review, we conclude that a rational trier of fact could conclude beyond a reasonable doubt that Defendant committed the offense of assault against Ms. Reid. Defendant is not entitled to relief on this issue.
IV. Evidentiary Issues
Defendant argues that the trial court erred in allowing Ms. Reid to testify on redirect examination that her supervisor told her to proceed with securing warrants against Defendant for the charged offenses. Defendant argues that this testimony was impermissible hearsay. The challenged colloquy is as follows:
[THE STATE]: You testified after being asked by [Defense Counsel] whether or not you discussed this with your loss prevention . . . supervisor?
[Ms. Reid]: Yes.
[THE STATE]: And did he indicate to you that you should proceed with the warrants?
[Ms. Reid]: Yes.
[THE STATE]: And did he indicate to you —
[DEFENDANT]: Object to hearsay.
[TRIAL COURT]: Overrule, go ahead.
These questions were in response to the following testimony elicited during cross-examination:
[DEFENSE COUNSEL]: So this, supposedly happened on the 19th but you took the warrants out five days later?
[Ms. Reid]: I called the police right away.
[DEFENSE COUNSEL]: Okay. Now before you took the warrants out, you did discuss them with the district supervisor, correct?
[Ms. Reid]: I don't recall. There was a detective that finally got in touch with me a few days later and that's when we did the warrants.
[DEFENSE COUNSEL]: Okay. Do you remember when we had a preliminary hearing?
[DEFENSE COUNSEL]: Okay. At that time do you remember saying that you discussed the warrants with the district loss supervisor?
[Ms. Reid]: I'm sorry, the district loss prevention manager, yes.
The State argues that the challenged testimony was not offered for the truth of what Ms. Reid's supervisor told her, but to show that Ms. Reid had her supervisor's approval in pursuing prosecution of the matter. Hearsay is defined as "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). In general, hearsay statements are inadmissible. Tenn. R. Evid. 802 ("Hearsay is not admissible except as provided by these rules or otherwise by law.").
While the defendant may very well be correct that Ms. Reid's testimony about what her supervisor advised her about pursuing prosecution of the incident was hearsay, Defendant himself both elicited and opened the door to the testimony he now assigns as error. State v. Robinson, 146 S.W.3d 469, 493 (Tenn. 2004). Under these circumstances, the defendant is not entitled to relief. It is well-settled that a litigant will not be permitted to take advantage of errors which he himself committed or invited, or induced the trial court to commit, or which were the natural consequence of his own neglect or misconduct. Id. Defendant is not entitled to relief on this issue.
Defendant also argues that the trial court erred in overruling his objection to certain of the State's questions during Defendant's cross-examination concerning the theft charge. In view of the trial court's finding of not guilty on the theft charge, this issue is moot.
CONCLUSION
After a thorough review, we conclude that the trial court erred in allowing the State to amend count one of the indictment without Defendant's consent after jeopardy attached, but that such error was harmless beyond a reasonable doubt. We therefore affirm the judgment of the trial court.