APPELLATE COURT OPINIONS

In this appeal, we address whether prior inconsistent statements can be used substantively to corroborate a confession when the prior statements are admitted into evidence without objection. We also consider whether the failure of the trial court to instruct the jury as to the limited use of the prior statements constitutes plain error. The Court of Criminal Appeals held that prior inconsistent statements could not be used as substantive evidence and that the failure of the trial court in this case to give a limiting instruction amounted to plain error. For the reasons stated herein, we hold that by not objecting to the admission of the statements, the appellee waived any objection to their use by the jury as substantive evidence to corroborate the appellee’s two confessions. Consequently, we hold that the evidence in this case is sufficient to support a finding of guilt beyond a reasonable doubt. Finally, because the decision to forgo any objection to the hearsay testimony was a deliberate, tactical decision by trial counsel, we are precluded from considering admission of the evidence under a plain error analysis. We reverse the judgment of the Court of Criminal Appeals and reinstate the appellee’s conviction and sentence for aggravated sexual battery.

This appeal arises from a dispute between brothers-in-law over the sale of a partnership interest in a family dairy business. After reaching an oral  agreement regarding the price of the interest to be sold, the buyer tendered $50,000 of the purchase price to the seller and later  presented a promissory note evidencing an obligation for the $61,000 balance of the sale. The seller’s home subsequently burned and the note was destroyed.  A dispute arose between the parties as to the validity of the note and the existence of an agreement. The seller  contends that the note handed to him by the buyer does not contain the true terms of the contract. He argues that his agreement was with the buyers and not with the buyer's corporation. The buyer contends that his corporation is liable on the note and not him personally. A jury found that the note was not accepted by the seller and rendered judgment against the buyer and his wife, rather than against the corporation. In reviewing the trial court’s denial of the buyer’s motion for a directed verdict, the Court of Appeals reversed the jury’s findings and held that the seller accepted the promissory note and was estopped from denying his acceptance. Accordingly, the intermediate court reversed the judgment against the buyer and his wife, finding them not to be personally liable on the promissory note. After a close review of the record, we have concluded that while the Court of Appeals correctly  reversed the judgment against the buyer’s wife, it erred by reversing the jury’s verdict with respect to the buyer personally. We therefore reinstate the jury’s verdict and judgment against the buyer.