# State of Tennessee v. Clarence M. Porter

> Court of Criminal Appeals of Tennessee · March 4, 2025

URL: https://www.frixlaw.com/law-library/cases/10816177

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** March 4, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Jill Bartee Ayers
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

03/04/2025
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
October 23, 2024 Session Heard at The University of Tennessee at Chattanooga1

STATE OF TENNESSEE v. CLARENCE M. PORTER

Appeal from the Criminal Court for Loudon County
No. 2017-CR-123C Jeffery Hill Wicks, Judge
___________________________________

No. E2023-00864-CCA-R3-CD
___________________________________

Defendant, Clarence M. Porter, was convicted by a Loudon County jury of two counts of
felony murder, one count of theft of property under $1,000, and one count of especially
aggravated robbery. He was also charged with possession of a handgun by a convicted
felon, but following a bifurcated trial, that charge was dismissed by the trial court. The
trial court imposed an effective life sentence for the felony murder, theft, and especially
aggravated robbery convictions. Defendant argues that the trial court erred in admitting a
hearsay statement by a co-defendant because the State failed to prove that Defendant was
involved in a conspiracy with co-defendants; that the evidence was insufficient to support
his convictions because there was no independent proof to corroborate accomplice
testimony and the State failed to prove that he was criminally responsible for the actions
of his co-defendants or that he independently possessed any criminal intent to commit the
charged offenses; that the trial court erred in allowing the State’s lead investigator to
reference the Chattanooga Police Department’s “street gangs unit;” and that the State
committed prosecutorial misconduct during closing argument. Following our review of
the entire record and the oral arguments and briefs of the parties, we determine that the trial
court erred in admitting hearsay evidence. Further, following State v. Thomas, 687 S.W.3d
223, (Tenn. 2024), because the accomplice testimony was not sufficiently corroborated,
we find that the evidence is insufficient to sustain Defendant’s convictions. Accordingly,
we reverse the judgments of the trial court and dismiss the charges against Defendant.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
and Dismissed

JILL BARTEE AYERS, J., delivered the opinion of the court, in which TOM GREENHOLTZ and
KYLE A. HIXSON, JJ., joined.

Brennan M. Wingerter, Assistant Public Defender – Appellate Division (on appeal),
Franklin, Tennessee, and Kim Nelson, District Public Defender and Harold D. Balcom, Jr.
1
Oral argument in this case was heard on the campus of the University of Tennessee at Chattanooga.
and Joe Norris (at trial), Assistant Public Defenders, Kingston, Tennessee, for the
appellant, Clarence M. Porter.

Jonathan Skrmetti, Attorney General and Reporter; Christian N. Clase and Katherine C.
Redding, Assistant Attorneys General; Russell Johnson, District Attorney General; and
Robert Edwards and Jed Bassett, Assistant District Attorneys General, for the appellee,
State of Tennessee.

OPINION

Factual and Procedural Background

The charges in this case arose when the victim, James Johnson, was shot and killed
in his home by Christopher Blake Orr. In August 2017, a Loudon County Grand Jury
indicted Mr. Orr (“Co-defendant Orr”) along with LaQueena Brown (“Co-defendant
Brown”) and Defendant for felony murder committed during a robbery (count one), felony
murder committed during a theft (count two), theft of property valued more than $1,000
but less than $2,500 (count three), and especially aggravated robbery (count four).
Defendant was also charged with unlawful possession of a firearm after having been
convicted of a felony (count seven).2 Defendant’s case was severed from his co-
defendants’. Prior to trial, Co-defendant Brown pled guilty to facilitation of felony murder
and was sentenced to twenty-two years. Co-defendant Orr pled guilty to second degree
murder and was sentenced to twenty-five years. Following the disposition of the co-
defendants’ cases, a superseding indictment was entered reindicting Defendant on the same
charges as the original indictment.

Pretrial Motions

Prior to trial, Defendant filed a Motion in Limine seeking to exclude a document
produced by the State titled, “Christopher Blake Orr 423-457-5330 Phone Activity
Timeline from Phone Extraction . . . for a portion of May 10, 2017 and May 11, 2017,”
arguing that the document contained inaccurate information and that phone calls and text
messages without content between Co-defendant Orr and Defendant were not relevant and
would be the subject of speculation. While there was no evidence presented as to why
some of the text messages had no content, the State noted:

Then there’s, a little frustrating here, at 7:01 there’s an incoming call, or text
message from both [Co-defendant] Porter and [Co-defendant] Brown, but
our dump gives us no [content], and we don’t know why that happened, it’s
an aberration, it may be that those texts were deleted, it may be that they
simply weren’t recorded for whatever reason but there is no content to them.

2
This count was later renumbered to count five in Defendant’s trial.

-2-
Defendant also sought to exclude two photographs from Co-Defendant Orr’s phone
extraction as not relevant: one photograph showed an unknown man bagging items at a
store and the other showed Co-defendant Orr in a vehicle with two other occupants, neither
of whom were involved in this case.3 Defendant further sought to exclude specific text
messages between himself and Co-defendant Orr as inadmissible hearsay and unfairly
prejudicial.4 In his motion, Defendant raised the issue of lack of corroborating evidence to
support accomplice Co-defendant Brown’s testimony.

The State filed a “Notice of Intent to Introduce Certified Records Pursuant to
Tennessee Rules of Evidence 803 and 902,” specifically Verizon Wireless cell phone
records of two numbers for Co-defendant Brown, Verizon Wireless cell phone records of
Co-defendant Orr, T-Mobile cell phone records of Defendant, and AT&T cell phone
records of the victim.

The trial court conducted a hearing on January 19, 2022. No witnesses testified, but
Defendant entered as exhibits the material he sought to exclude along with other
documentation from Co-defendant Brown’s Facebook records and text messages, reports
and audio recordings from her multiple interviews with law enforcement, her hand-written
statement, and a letter she wrote to her “Aunt Fay.” The State entered the phone records it
sought to introduce.

Following the hearing, the trial court entered a written order which contained the
following:

Based upon the motion in limine and attached exhibits, the State’s response
to the motion, and the arguments of counsel during the hearing, the court
finds that the State has proven by a preponderance of the evidence that the
three co-defendants entered into a conspiracy to either rob or steal from the
victim, James Johnson. As such, the evidence of communications between
the defendants by either text messages, Facebook messages, or phone calls
will be admissible at the trial in this matter under Rule 803(1.2)(E), provided
that the State can prove at the trial that these communications were made
during the pendency of the conspiracy and in furtherance of the conspiracy.
The court further finds that the text messages and phone call logs are non-
testimonial and would not be subject to the Confrontation Clause.

At this time, the Motion in Limine regarding the text messages and phone
communications is denied. However, if the State is unable to prove the

3
The trial court did not address the photographs in its order following the hearing. They were introduced
at trial but are not an issue on appeal.
4
The actual text messages and context of the messages at issue will be discussed in the Trial facts section
below.

-3-
conspiracy during the trial on this matter, [D]efendant will be allowed to
renew his motion.

In regard to [D]efendant’s objection to Exhibit 1, (Christopher Blake Orr’s
phone activity timeline) the State will be allowed to enter this information
into evidence provided the errors identified by [D]efendant are corrected.

In regard to [D]efendant’s objection to the admissibility of text messages
with no content and phone calls between himself and Orr, the court finds that
the evidence of phone calls between the two co-defendants will be admissible
to show that they were in contact with each other on May 10-11, 2017.

In regard to [D]efendant’s arguments concerning accomplice testimony and
corroboration, the court finds that this issue is best suited to be addressed
during the trial if Brown and/or Orr testify.

Trial

Co-defendant Brown knew the victim’s son and met the victim “through two other
females” on April 16, 2017, when the victim picked her up in Soddy Daisy along with the
two other women. Co-defendant Brown was living in Dayton with a friend at the time.
After the victim agreed to pay her to sell his “roxies” in Dayton, she began staying with
him overnight at his home in Loudon County. On May 9, 2017, after Co-defendant Brown
sold all the drugs the victim had given her to sell, the victim picked her up, and she gave
him all the cash from the sales. The victim was supposed to pay her a portion of the
proceeds, but when he would not pay her, they fought, and the victim ordered her to get
out of his home. Co-defendant Brown agreed to leave if the victim drove her back to his
house for her to get her clothes. On the way back to the victim’s house, Co-defendant
Brown testified that they picked up another woman, “a booster,” who was “going to steal
some things” for the victim from Walmart, and “he was going to pay her in dope.”
However, the woman “ended up not doing it,” and the victim and Co-defendant Brown
dropped her off at another location, and they continued to the victim’s house.

Back at the victim’s home, the victim and Co-defendant Brown continued to fight
both verbally and physically. Co-defendant Brown testified that the victim choked her
with his left hand, cut her on the arm with a knife he had in his right hand, and threatened
that she would never see her children again. Sometime around 4:00 or 5:00 a.m., Co-
defendant Brown went into the bathroom and began calling and texting people to find
someone to pick her up. She called her “baby daddy,” Josh Crabtree, who refused to come.
She also sent him a text message stating, “ima either take wat I can for collateral or stay

-4-
hea or try to get somebody to come hea til I get wats owed to me.”5 She explained that she
was upset that the victim did not pay her, and she was going to take something from his
home. She also called James “Jimbo” Banks who hung up on her after she asked for a ride.
During her trial testimony, Co-defendant Brown identified a text message she sent on May
10, 2017, at 5:41 a.m. that said, “[o]n some real b**ch sh*t, can uu send one your shootas
my way, real talk, Mafka[.]” She explained that the message was sent to her by Josh
Crabtree for her to send to James Banks and that she was not asking for gunmen.

Co-defendant Brown testified that she then received an incoming call from a number
she did not recognize. The call was from Co-defendant Orr whom she had met
approximately ten years prior. She had not heard from him until the day prior when she
received a Facebook message from him and gave him her phone number so they could
reconnect. She explained her situation with the victim to Co-defendant Orr, and he agreed
to drive from Chattanooga to pick her up. She texted him an address on Vytron Road in
the City of Loudon (“Loudon”), which she later realized was the victim’s work address.
After going through the victim’s mail, she found his home address and sent that address to
Co-defendant Orr. She also texted Co-defendant Orr at 7:41 a.m., saying “he keep talking
crazy doe, smh” which she explained meant “shaking my head” and “uu ain gotta come,
ion want uu dis fkd upp BS i can take his perverted a** reall sh*t dude js mad[.]” She
explained that meant she was just mad.

At 7:12 a.m., Co-defendant Brown sent a text message to Co-defendant Orr stating,
“Mann I feel like a str8 weak punk if i leave.” And then at 7:42 a.m., she texted him, “soon
as uu walk in the house there is a flat screen tv to your left” and then she sent a picture of
a television. When she later called Co-defendant Orr to see how long it would take him to
arrive, the victim could be heard in the background “still talking crazy.” Co-defendant Orr
advised her not to talk to the victim and to get out of the home, so Co-defendant Brown put
her clothes in a tub and two bags, took them outside, and sat on the victim’s truck to wait
for her ride. The victim came out and put his phone down on the truck. Co-defendant
Brown told him she found someone to come pick her up, and he said, “you’re not going
anywhere unless I’m ready for you to go.” He then took her clothes back inside his house.
Co-defendant Brown grabbed the victim’s phone and “took off walking” down the road
and talking on her phone to Co-defendant Orr. She was unsure what time of day it was,
but did recall that it was daylight.

Co-defendant Orr got lost but eventually picked up Co-defendant Brown on the side
of the road near the victim’s home. Co-defendant Brown saw another person in the
passenger seat of Co-defendant Orr’s car, later identified as Defendant, whom she did not
know or recognize; she later came to know him only as “Money.” She got in the back seat
and told Co-defendant Orr to drive back to the victim’s home so she could get her clothes.

5
For accuracy, we have quoted the co-defendants’ text messages as they appear in the exhibits of the
phone records rather than how they appear in the trial transcript.

-5-
She still had the victim’s phone. After arriving at the victim’s home, Co-defendant Brown
knocked on the door and asked the victim where her clothes were. At trial, she testified
that she kept the victim’s phone until she could verify that none of her clothes were missing.

While Co-defendant Brown was checking her clothes, she saw the victim run into
the home, and Co-defendant Orr chasing the victim with “his arms out.” She said she
“never seen a gun.” Co-defendant Brown testified at trial that she left the victim’s phone
beside the television and picked up her clothes in the tub. While walking to the car, she
heard what she thought “was a firework.” Co-defendant Brown screamed, dropped the
tote, and went back into the house. While she did not remember “passing” Defendant on
her way out, she testified that when she went in, Defendant was in the house standing there
with his hands in his pocket. She testified that she asked Defendant about something she
smelled in the home, and that he said, “if I knew there was anything here for real, for sure,
I’d be searching.” She then saw the victim on the floor, turned him over and saw “the hole
in him.” When she asked Co-defendant Orr what he had done, he ordered her to get in the
car which she did. Defendant followed. Co-defendant Brown asked about her clothes, and
Co-defendant Orr threw them in the trunk of the car and left the tote in the yard. The door
to the home was left cracked open. Regarding the victim’s phone, she said she “didn’t grab
it. But it was in our possession.”

Co-defendant Orr then began driving back to Chattanooga. They stopped for gas
and when Co-defendant Orr left the vehicle to go inside the store, Co-defendant Brown
asked Defendant, “Why did he do that back there[?]” Defendant replied, “he’s geeked,”
and he showed her a bag of methamphetamine. She bought twenty dollars of the drug from
Defendant. Co-defendant Orr came back out of the store, and Co-defendant Brown gave
him her “EZ card” to go back inside and get her some water. He came back outside again,
pumped gas, and got back in the car. During the drive, Defendant did not “really say
nothing at all” and was on his phone most of the time. Co-defendant Orr coached Co-
defendant Brown on what to say about the crime.

Co-defendant Brown testified that at some point during the drive, Co-defendant Orr
handed the victim’s phone to Defendant who “took it and throwed it out the door in the
Chickamauga Dam River as we went across the bridge.” When they got to Chattanooga,
they went to a house where only Co-defendant Orr went in. When he returned, they drove
to Sandy’s Mini Mart where again only Co-defendant Orr went in. They then traveled to
Defendant’s home. Co-defendant Brown testified that Co-defendant Orr backed into the
driveway and gave Defendant a gun wrapped in a gray bandana, saying, “here’s your gun
back,” and the two of them went inside. Co-defendant Brown stayed outside and moved
to the front seat of the car.

Defendant stayed at his home, and Co-defendants Orr and Brown drove to the
Econolodge in Tiftonia. Co-defendant Brown gave Co-defendant Orr money to pay for the
room. They got into an argument at the hotel, and Co-defendant Orr left for the night. The

-6-
next day, Co-Defendant Brown met two men at the hotel, and they drove her to the health
department to get a copy of her birth certificate and then returned to the hotel where she
saw Co-defendant Orr backing out of the parking lot. She reached out to him through a
Facebook message asking him to come back and get her which he did, and she left with
him. She used Facebook to communicate because they both had changed phone numbers,
and she did not have his new number. She called her cell phone provider and changed her
number “from a 423 to a 404 area code.” She had no contact with Defendant after they left
him at his home. Co-defendant Brown testified that the next day after the shooting, on
May 11, 2017, Co-defendant Orr confirmed to her that he shot the victim. She said that
Co-defendant Orr also threatened her son’s life by stating: “b**ch, if you tell anybody what
I did I know where your son lays his head.”

On cross-examination, Co-defendant Brown agreed that she was interviewed three
times prior to trial and that all of the interviews had been recorded. She also made a written
statement, wrote a detailed letter to her Aunt Fay, and made a three-page long written
proffer when she entered her guilty plea. She agreed that during her first interview on May
12, 2017, she initially told law enforcement that the victim took her to Chattanooga in his
vehicle on May 10, and that she had not seen him since. At trial she said she did not
remember making that statement, but that she was high during the interview. She told her
Aunt Fay in the letter that she was “on the streets for a week and a half, started staying in
Loudon County, only to clean [the victim’s] house and help him around his house and him
pay me.” She did not recall when he asked her to sell roxies for him, but she agreed to do
so only in Rhea County. In addition to selling the roxies, she was also selling her food
stamp cards. She admitted she knew both activities were illegal.

Co-defendant Brown admitted that on the day of the shooting, her plan was to get a
ride out of Loudon County and rob or steal from the victim because he owed her money.
She sent several text messages to other individuals about stealing from the victim. To one
individual, she stated, “It will be worth the drive but pls pls come get me when uu get hea”
and “uu can have whatever you want.” She said she was saying whatever she could to get
someone to come get her, including a message that said, “Brother you can come on up here
and steal from this man and I’m willing to help you do that.” She also had pictures of two
televisions on her phone.

Co-defendant Brown admitted that in three prior interviews, two of which were with
the Tennessee Bureau of Investigation (“TBI”), she told law enforcement that nothing was
taken from the victim’s home. In her prior interviews she also told law enforcement that
she had the victim’s phone the entire time. In her July 5 interview, she told law
enforcement that Co-defendant Orr and Defendant took her phone and put it in the front of
the car. She had the victim’s phone “back here,” and Co-defendant Orr “snatched it from
[her].” Her testimony at trial was the first time she said that Defendant was in the victim’s
home and told her, “If I knew if anything was in here, I’d be looking.” She also admitted
that her trial testimony was the first time she said that when they got to Defendant’s home,

-7-
Co-defendant Orr handed Defendant the gun he used to shoot the victim and said, “here’s
your gun back.” Co-defendant Brown testified that she was high during all of her
interviews, but after listening to the July 5 interview at trial, she agreed that she said she
still had the victim’s phone in the car after she left with Co-defendant Orr and Defendant,
and “they snatched it from” her, later clarifying that Co-defendant Orr was the one who
took the phone from her, and Defendant threw it off the bridge. She also admitted that in
her July 5 written statement she told law enforcement Defendant never got out of the
vehicle at the victim’s home and that Defendant said to Co-defendant Orr, “what you
jumping out for, get your a** back in the car.” She said that she heard “tussling” after Co-
defendant Orr went into the house and heard him say, “if you ever touch her again, I’ll kill
you.”

Co-defendant Brown consistently testified that she never saw Defendant take
anything and never saw him in possession of anything taken from the victim’s home. She
never saw Co-defendant Orr take anything from the home, but he was the last one out of
the home. She testified consistently, including at trial, that as far as she could tell, nothing
was taken from the house.

Dr. Darinka Mileusnic-Polchan performed the autopsy on the victim. She testified
that the victim was shot one time, and that shot “pretty much perforated the main vessels
that come off the base of the heart, the base of the aorta, the aortic valve[,]” perforated the
spine and severed the distal spinal cord. The victim could not have survived the injury.
She also reviewed eleven items noted on her report as “additional evidence of injury”
which included bruising in the chest, hip, and scapula areas as well as broken ribs, abrasions
and other contusions all consistent with a struggle. She noted that those injuries were
sustained while the victim was still alive.

Ben Harris, the victim’s brother-in-law, worked with the victim at M&M Marine at
the time of the offense. Mr. Harris was a boat mechanic, and the victim periodically did
maintenance for M&M Marine in addition to his other jobs. On May 10, 2017, Mr. Harris
was scheduled to meet the victim at work at 8:00 a.m. Mr. Harris went fishing on the lake
“in the cove between Tellico and Loudon” prior to work. While fishing, the victim called
Mr. Harris “sometime right after 7:00” to let Mr. Harris know that the victim was having
some “things” that were “slowing him down from already being there waiting on [Mr.
Harris].” When Mr. Harris got to M&M Marine, he called the victim several times, and
the victim did not answer his phone. After “about [thirty] minutes or so,” Mr. Harris called
his wife, Eva Jane Johnson, the victim’s sister, to let her know the victim had not shown
up for work and was not answering his phone.

Ms. Johnson was at work and called the victim. She left a couple of voice messages,
but at some point “around 10:00” a.m. her calls were no longer going to voicemail. When
she got a break from work between 2:00 and 3:00 p.m., she drove to the victim’s home to
check on him. When she arrived, there was a “drawer from like a chest of drawers that

-8-
was just blocking the door open.” She went in and saw a tote that “had like clothes and a
bunch of items sitting around” and called for the victim. The home was messier than usual,
and she noticed potting soil all over the floor. She then saw the victim lying in the doorway
to the utility room. He was “cold, he was gone.” She then went outside, called 911, and
waited for police to arrive. Mr. Harris also arrived to wait with her. Ms. Johnson
cooperated in the investigation.

Detective Brian Jenkins of the Loudon Police Department (“LPD”) was dispatched
to the victim’s home on May 10, 2017, “a little after 3:00 in the afternoon” and arrived in
“[a] couple of minutes.” Another officer was the first on the scene and told Detective
Jenkins “it appeared that there was a gunshot wound.” Because the LPD is a “very small
municipal department,” Detective Jenkins called to get help with the investigation from the
TBI who came and processed the scene. Detective Jenkins identified photographs of the
outside and inside of the victim’s home, and those photographs were exhibited to his
testimony. There was a photograph of one .40 caliber shell casing found in the home.
Photographs also showed potting soil on the floor next to a computer stand and a bed and
additional potting soil on “the patio-type area . . . that’s been dumped out of something.”

After talking with the victim’s family, Detective Jenkins began focusing on “some
female companions” of the victim, but those individuals had alibis. Detective Jenkins then
turned his focus on the victim’s “soon to be ex-wife” until he was told by the TBI that they
had determined the victim had been with Co-defendant Brown and another female in
Dayton the previous night. The other female was cleared, and Detective Jenkins spoke
with Co-defendant Brown three different times. From those interviews, Co-defendant Orr
and Defendant were developed as additional suspects, and surveillance video was obtained
from Sandy’s Mini Mart and several other stores. Search warrants were also issued to
obtain data from the suspects’ cell phones.

On cross-examination, Detective Jenkins agreed that a blue tote was found outside
the victim’s home, and a bag later determined to belong to Co-defendant Brown was in the
home. A television set, computer monitor, and computer equipment were also in the home.
Detective Jenkins agreed that one of the photographs showed two pills on the bed in the
second room to the right in the home, and there was a photograph of the victim’s truck
parked outside the home showing a pill bottle and a cell phone inside the vehicle. That cell
phone was not processed, and Detective Jenkins did not recall if anyone determined the
contents of the pill bottle. The victim’s home had a non-functioning surveillance system.
Detective Jenkins also agreed that when he and TBI Special Agent Jason Legg interviewed
Defendant, Defendant denied being involved in a killing and explained that he knew Co-
defendant Orr “because of bully dogs.”

In May 2017, Special Agent Legg was a criminal investigator assigned to the Ninth
District which included Loudon County, and he investigated the victim’s death. After
interviewing the victim’s son, Special Agent Legg reviewed video recordings from a

-9-
market in Dayton from which he identified two females, Cassie Parrott and Co-defendant
Brown. Co-defendant Brown’s interview led him to Co-defendant Orr and another suspect
who went by the name “Money.” Special Agent Legg met with the Chattanooga Police
Department “street gangs unit” in an effort to identify and locate “Money.” He found
information that led him to Defendant’s mother’s Stuart Street home where he interviewed
Defendant’s mother. Defendant’s mother called Defendant, and he came home to be
interviewed by Special Agent Legg. Defendant denied involvement in the murder and
denied having been in Loudon; he admitted meeting Co-defendant Orr and a girl at Sandy’s
Mini Mart. He turned his cell phone over to Special Agent Legg. Shortly into Defendant’s
interview, Defendant asked for an attorney, and the interview stopped. Special Agent Legg
did not record the interview.

Special Agent Legg ultimately collected two cell phones from Co-defendant Brown
and one each from Co-defendant Orr and Defendant. He obtained warrants for those
phones and for the cell phone provider of the victim’s phone which was owned by
Catherine D. Lemacks. Special Agent Legg conducted two interviews with Co-defendant
Brown which he described as “incomplete” and “inconsistent.” He also said she was
crying, sobbing, and shaking during the interviews. Co-defendant Brown admitted that she
and the victim were selling drugs, but Special Agent Legg said that there were no drugs at
the victim’s home other than some “marijuana plants or something.” On cross-
examination, he admitted there were two pills in the victim’s home as shown in a
photograph taken at the crime scene.

Agent Cortney Dugger with the 9th Judicial District Attorney General’s Office
testified as a digital evidence expert. He conducted extractions on the phones Special
Agent Legg collected from Co-defendant Brown, Co-defendant Orr, and Defendant, and
he reviewed the data from the victim’s cell phone provider. He testified:

In general there’s several areas that you can look at on the phone extraction
for potential of where that device has been or where the files even on that
device has been, meaning where they came from. Some cell phones record
how they interact with cell towers, where they receive signals, and we can
extract that. Some cell phones will extract – will store, networks they
connected to. Home networks, Wal[-]mart, wherever, some will store that.
Some location information is found in what’s called exodata, and that’s, if
you take a picture, depending on your phone settings, there may be location
information inside of those pictures. Those are the main areas that I can think
of that would refer to location.

He further agreed that when receiving a set of data from a cell phone service
provider, he “most of the time” and depending on the process used, also received location
information. He marked the locations from the extraction reports and cell phone provider
data on a map.

- 10 -
Agent Dugger testified that information from the victim’s phone records showed
that at 8:00 a.m. on May 10, 2017, the phone was connected to a cell phone tower at 201
Hill Street in Loudon. While there were no connections between Loudon and Chattanooga,
between 10:15 and 10:21 a.m., the phone connected to towers in the Chattanooga area.
Agent Dugger explained that the phone could have been off, in airplane mode, or frozen
when it made no connections. The last point the phone was traceable was near the highway
traveling across Chickamauga Dam near Chattanooga State Community College. Agent
Dugger noted that if he had been able to perform an extraction on the victim’s phone, which
was never found, he could “possibly” have gotten more location information.

Co-defendant Orr’s phone extraction did not give location information, but Agent
Dugger was able to determine that information from the cell phone provider. At 6:12 and
6:50 a.m. on May 10, 2017, records showed that Co-defendant Orr’s phone was in
Chattanooga. From 7:59 a.m. through 8:18 a.m. it was in Loudon; by 8:52 a.m., it was in
the Sweetwater area and then it was back to Chattanooga at Sandy’s Mini Mart from 9:51
a.m. through 10:55 a.m. Agent Dugger clarified that when discussing the location of the
phone, he meant towers “that the phone [was] communicating with.”

Defendant’s cell phone provider records started at 6:31 a.m. on May 10, 2017, and
showed the farthest north the phone hit on a tower was south of Athens, not even mid-way
between Chattanooga and Loudon. However, Agent Dugger also did a forensic extraction
on Defendant’s phone which showed that at 6:01 a.m. the phone was connected to a wi-fi
network at 2601 Stuart Street in Chattanooga, which was Defendant’s home. The phone
signal then traveled north on I-75, and around 7:48 a.m. hit “right near Loudon.” At 8:43
a.m., it went south, was near Sweetwater at 8:51 a.m., and was then back in Chattanooga
at 9:41, 10:24, and 10:55 a.m. Agent Dugger prepared a power point presentation of the
connections showing Defendant’s phone’s location, which was entered as a collective
exhibit to his testimony.

Agent Dugger testified that he had experience and training in understanding short
form words used in text messaging. He prepared a summary of phone activity and
communications to and from Co-defendant Orr’s phone, and obtained text message data
from the phone extraction. He had also pulled the internet search history from Co-
defendant Orr’s phone. His summary showed sixty-nine contacts between Co-defendant
Orr and Defendant and twenty-nine contacts between Co-defendant Orr and Co-defendant
Brown. Agent Dugger agreed that the contacts could have been made over a few days or
a few months. Agent Dugger’s summary of Co-defendant Orr’s phone activity was
exhibited to his testimony.

Agent Dugger noted several calls and text messages from 5:47 a.m. through 8:17
a.m. on May 10, 2017, between Co-defendant Orr and Co-defendant Brown as well as
between Co-defendant Orr and Defendant. Some of the text communications between Co-
defendant Orr and Defendant had no content. The report showed that no contact was ever

- 11 -
made between Co-defendant Brown and Defendant. Defense counsel then made the
following objection to the admission of the text messages: “And your Honor, for the record,
of course, the same objection that we had in the Motion in Limine so that we don’t have to
go through all those.” The trial court replied: “Very well, the objection is overruled.”
Agent Dugger then testified that at 8:44 a.m., corresponding with the phone records
showing that co-defendants were on the return trip to Chattanooga, Co-defendant Orr sent
Defendant a text message saying, “Shoulld I do her too[?]” At 10:28 a.m., Defendant sent
Co-defendant Orr a text message saying, “Take me to sa[n]dys[.]” At 10:50 a.m.,
Defendant messaged Co-defendant Orr, “Totally violated brh frfr” which Agent Dugger
explained meant “totally violated, bro, for real, for real.” Co-defendant Orr responded at
10:52 a.m., “Lol luv ya cuz but I’m tryna take care something I got you though[.]” The
phone records showed continuing calls between Co-defendant Orr and Defendant
throughout the evening of May 10 and into the early morning hours of May 11, 2017.
During that same period, Co-defendant Orr’s phone records showed multiple internet
searches for Loudon County news and Loudon County Sheriff’s office, including access to
an article with the headline “Victim Identified in Robbery Homicide.”

On cross-examination, Agent Dugger admitted that Defendant’s cell phone records
also showed a connection in Albuquerque, New Mexico. He explained that the connection
was a data error which is “not an uncommon thing” and did not impact the overall data.
Defendant’s cell phone data also showed that both on the trip to Loudon and back to
Chattanooga, Defendant spent much of the time accessing YouTube and that Defendant
sent pictures of dogs to Co-defendant Orr.

At the close of the State’s proof, Defendant moved for a judgment of acquittal on
all counts arguing that the State did not prove theft because the victim was not the owner
of the phone taken from his home and that the State had not proven that anything else was
taken from the victim’s home. Defendant argued that Co-defendant Brown testified that
Co-defendant Orr said he did not want the television she had previously referenced, and no
televisions were missing from the home. Defendant also argued that there was no proof of
his intent to participate in the crime and the fact that he told Co-defendant Orr to get back
in the car was proof that he did not intend to be involved. The State argued that the lack
of money and drugs in the victim’s home could be proof of theft and that the victim had a
possessory interest in the phone. The State conceded that any theft would be a
misdemeanor under $1,000. After the trial court denied the motion, Defendant elected not
to testify and offered no proof at trial.

The jury convicted Defendant as charged for felony murder in perpetration of
especially aggravated robbery, felony murder in perpetration of theft of property, theft of
property under $1,000, and especially aggravated robbery. The trial court then began
proceedings on the bifurcated portion of the trial on the charge of being a convicted felon
in possession of a handgun. After opening statements, the State offered into evidence a
certified copy of Defendant’s 2003 Hamilton County conviction for attempted aggravated

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robbery. The trial judge then granted Defendant’s motion for judgment of acquittal on the
handgun charge finding that Co-defendant Brown’s testimony was the only proof that
Defendant was in possession of a handgun and that there was no corroborating evidence of
her accomplice testimony. Following a sentencing hearing,6 the trial court imposed life
sentences for the felony murder convictions and merged those counts, and sentenced
Defendant to eleven months and twenty-nine days for the theft conviction and eighteen
years for the especially aggravated robbery conviction and merged those counts, running
all counts concurrently.

Defendant filed a timely motion for new trial which was denied by the trial court.
Defendant’s timely appeal is now properly before this court.

Analysis

Defendant argues that because there was no independent proof to corroborate Co-
defendant Brown’s accomplice testimony, there was insufficient evidence to prove that he
is criminally responsible for the actions of his co-defendants or that Defendant
independently possessed any criminal intent to commit the charged offenses. Defendant
alternatively argues that because the trial court erred in admitting hearsay statements by
Co-defendant Orr because the State failed to prove that Defendant was involved in a
conspiracy with Co-defendants Orr and Brown, he is entitled to a new trial. Defendant
further argues that the trial court erred in allowing the State’s lead investigator to reference
the Chattanooga Police Department’s “street gangs unit” and that the State committed
prosecutorial misconduct during closing argument.

I. Sufficiency of the Evidence

When evaluating the sufficiency of the evidence on appeal, the relevant question is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). The standard of review
is the same whether a conviction is based on direct or circumstantial evidence. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265, 275
(Tenn. 2009)). “Because a verdict of guilt removes the presumption of innocence and
raises a presumption of guilt, the criminal defendant bears the burden on appeal of showing
that the evidence was legally insufficient to sustain a guilty verdict.” State v. Shackleford,
673 S.W.3d 243, 250 (Tenn. 2023) (quoting Hanson, 279 S.W.3d at 275). Further, the
State is afforded “the strongest legitimate view of the evidence as well as all reasonable

6
The State had filed a petition to seek life without the possibility of parole but withdrew that petition
before sentencing.

- 13 -
and legitimate inferences which may be drawn therefrom.” State v. Davis, 354 S.W.3d
718, 729 (Tenn. 2011) (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

The jury evaluates the credibility of the witnesses, determines the weight to be given
to witnesses’ testimony, and reconciles all conflicts in the evidence. State v. Campbell,
245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn.
Crim. App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence, the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence. Dorantes, 331
S.W.3d at 379. A guilty verdict “accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997) (citing State v. Grace, 493 S.W.3d 474, 476 (Tenn. 1973)). This court
“neither re-weighs the evidence nor substitutes its inferences for those drawn by the jury.”
Wagner, 382 S.W.3d at 297 (citing Bland, 958 S.W.2d at 659).

As relevant to this appeal, first degree felony murder is defined, in relevant part, as
the “killing of another committed in the perpetration of or attempt to perpetrate” a robbery
or theft. T.C.A. § 39-13-202(a)(2). A culpable mental state is not required for a conviction,
except the intent to commit the underlying felony. Id. § -202(b). The defendant “must
intend to commit the underlying felony at the time the killing occurs.” State v. Buggs, 995
S.W.2d 102, 107 (Tenn. 1999). Our supreme court has held that “in determining whether
the evidence is sufficient to support a conviction of first degree murder in the perpetration
of theft, a court must determine whether the killing is closely connected to the initial taking
of the property in time, place, causation, and continuity of action.” State v. Pierce, 23
S.W.3d 289, 295 (Tenn. 2000) (emphasis added). This is because “‘[t]he killing must have
had an intimate relation and close connection with the felony . . . and not be separate,
distinct, and independent from it.’” State v. Thacker, 164 S.W.3d 208, 223 (Tenn. 2005)
(quoting Wharton on Homicide, § 126 (3d ed.) (omission in original)).

Robbery is defined as “the intentional or knowing theft of property from the person
of another by violence or putting the person in fear.” T.C.A. § 39-13-401(a). Especially
aggravated robbery is a robbery accomplished with a deadly weapon and where the victim
suffers serious bodily injury. Id. § 39-13-403(a). A person commits theft “if, with intent
to deprive the owner of property, the person knowingly obtains or exercises control over
the property without the owner’s effective consent.” Id. § 39-14-103(a).

Under the theory of criminal responsibility, “[a] person is criminally responsible as
a party to an offense, if the offense is committed by the person’s own conduct, by the
conduct of another for which the person is criminally responsible, or by both.” Id. at § 39-
11-401(a). Criminal responsibility for the actions of another arises when a defendant,
“[a]cting with intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results of the offense, . . . solicits, directs, aids, or attempts to aid another person
to commit the offense.” Id. at § 39-11-402(2). Criminal responsibility is not a separate

- 14 -
crime but a “theory by which the State may prove the defendant’s guilt of the alleged
offense . . . based upon the conduct of another person.” State v. Lemacks, 996 S.W.2d 166,
170 (Tenn. 1999). “[U]nder the theory of criminal responsibility, presence and
companionship with the perpetrator of a felony before and after the commission of the
crime are circumstances from which an individual’s participation may be inferred.” State
v. Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001). However, “the evidence must
establish that [the] defendant in some way knowingly and voluntarily shared in the criminal
intent of the crime and promoted or assisted its commission.” State v. Pope, 427 S.W.3d
363, 369 (Tenn. 2013).

At the time of the offenses in this case, Tennessee law provided that “evidence is
insufficient to sustain a conviction when the conviction is solely based upon the
uncorroborated testimony of one or more accomplices.” State v. Thomas, 687 S.W.3d 223,
239 (Tenn. 2024) (citations omitted). The supreme court in Thomas abolished the
requirement for corroborative testimony of an accomplice but did so only on a prospective
basis. Id. at 242. Because this appeal was pending when the Thomas decision was
announced, we apply the former common law accomplice corroboration rule to this case.
Id.

Our supreme court has described the accomplice-corroboration rule as follows:

[T]here must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference, not
only that a crime has been committed, but also that the defendant is
implicated in it; and this independent corroborative testimony must also
include some fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need not be adequate,
in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary that
the corroboration extend to every part of the accomplice’s evidence. The
corroboration need not be conclusive, but it is sufficient if this evidence, of
itself, tends to connect the defendant with the commission of the offense,
although the evidence is slight and entitled, when standing alone, to but little
consideration.

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). An accomplice is defined as “one who
knowingly, voluntarily, and with common intent participates with the principal offender in
the commission of a crime.” Thomas, 687 S.W.3d at 239 (quoting State v. Bough, 152
S.W.3d 453, 464 (Tenn. 2004)). “A witness qualifies as an accomplice if that witness could
be indicted for the same offense charged against the defendant.” Id. at 239-40 (citation and
internal quotation marks omitted).

- 15 -
In Thomas, Co-defendant Turner was convicted of three counts of first degree
premeditated murder under the theory of criminal responsibility. The supreme court found
that her murder convictions must not be solely based on the uncorroborated testimony of
one or more accomplices. Thomas, 687 S.W.3d at 249. The court reiterated that
“[e]vidence which merely casts a suspicion on the accused or establishes he or she had an
opportunity to commit the crime in question is inadequate to corroborate an accomplice’s
testimony” and that “evidence that the accused was present at the situs of the crime and
had the opportunity to commit the crime is not sufficient.” Id. at 250 (citations omitted).
The court evaluated the evidence and the State’s argument that five pieces of evidence
corroborated the accomplice testimony of Co-defendant Hawkins. Id. Co-defendant
Hawkins had testified that Co-defendant Turner entered the room after one of the victims
had already been shot and was lying on the ground, asked if she was dead, and when Co-
defendant Hawkins said, “I guess so,” asked for his gun and shot the victim. He further
testified that Co-defendant Turner got into the vehicle with the co-defendants after the
murder, holding some marijuana that she had stolen from the scene. Id. at 236.

The court specifically noted that evidence Co-defendant Turner was present at the
scene of the crime was insufficient to corroborate accomplice testimony, even under a
theory of criminal responsibility. Id. at 251. Evidence that Co-defendant Turner’s car was
seen at the crime scene failed to confirm that she participated in the murders or was
criminally responsible for the conduct of other defendants. Id. There was also a phone
call after the crime with suggestions by Co-defendant Thomas that Co-defendant Turner
“stick to the script.” The court found that Co-defendant Thomas’ efforts to cover for
himself were not sufficient evidence that Co-defendant Turner committed a crime. Id.
After considering all of the corroborating evidence, the court reversed and dismissed the
charges against Co-defendant Turner concluding that the corroborating evidence fell short
of “confirming that [Co-defendant] Turner committed the crimes she has been convicted
of, whether ‘through her own acts or through the acts of another for whom she was
criminally responsible.’” Id. at 252.

In this case, Defendant argues on appeal that because there was no independent
proof to corroborate Co-defendant Brown’s accomplice testimony, the State failed to prove
that he was criminally responsible for the actions of his co-defendants or that he
independently possessed any criminal intent to commit the underlying felonies of theft or
robbery to support his felony murder conviction. It is undisputed that Defendant did not
shoot the victim. It is also undisputed that Co-defendant Brown was an accomplice and
that Defendant’s convictions were based on her testimony. Thus, under Thomas, we must
evaluate the evidence corroborating Co-defendant Brown’s testimony. In its brief, the
State argues that the corroborating evidence includes the following:

1. Cell phone location data establishing that Defendant traveled with Co-Defendant
Orr to and from Loudon County, that he was present when Co-defendant Orr killed

- 16 -
the victim, and that the victim’s cell phone was disposed of on the way back to
Chattanooga.

2. Text messages between Defendant and Co-defendant Orr. Specifically, the State
argues that Defendant’s message “Totally violated brh frfr” could have been
construed by jurors to mean Defendant aided and participated in Co-defendant Orr’s
crimes. “Shoulld I do her too[?]” could be construed as Co-defendant Orr asking
Defendant if he should kill Co-defendant Brown to cover up the crime, indicating
Defendant was an active participant because his opinion was asked.

3. Defendant’s phone calls with Co-defendant Orr. While the State admits there is no
proof of the content of the calls, it argues that the number of phone calls between
Defendant and Orr following the period of time during which Co-defendant Brown
sought help from other people via text messages and indicated her intent to take
collateral for the money the victim owed her was sufficient corroboration.

Defendant argues that such evidence corroborates nothing more than Defendant’s
mere presence at the victim’s home and not that Defendant had the requisite intent to
commit a theft or robbery.

The cell phone tower location data showing that Defendant traveled with Co-
defendant Orr from Chattanooga to the victim’s house in Loudon County and returned to
Chattanooga following the shooting shows no more than Defendant’s presence at the situs
of the crime. And while the victim’s cell phone location data indicates that the victim’s
cell phone stopped receiving and sending signals at the location where Co-Defendant
Brown testified Defendant threw the phone off a bridge, we do not find this evidence to
sufficiently prove or corroborate any intent of Defendant to commit the charged offenses
or to promote or assist in the charged offenses. As pointed out by Defendant’s brief, this
evidence would likely support a charge as an accessory after the fact, but he was not
charged with that offense.

As described in our analysis of the hearsay issue, the text messages between Co-
defendant Orr and Defendant were unclear and subject to interpretation. Co-defendant Orr
sent Defendant a message asking, “Shoulld I do her too[?]” Defendant did not respond to
the message7 and the cell phone extraction data showed that Defendant was on YouTube
much of the drive back to Chattanooga. Defendant’s message to Co-defendant Orr
referencing being “Totally violated” again has no clear meaning, and Co-defendant Orr’s
response added no clarification. We do not find that evidence corroborative of any intent

7
We have determined that this text message was improperly admitted by the trial court. Nevertheless,
it was considered by the jury in determining whether the evidence was sufficient to support Defendant’s
convictions.

- 17 -
of Defendant to participate in a robbery or theft or the Defendant was in any way criminally
responsible for the actions of the co-defendants.

The cell phone records confirm that Co-defendant Orr and Defendant
communicated immediately after Co-defendant Brown asked Co-defendant Orr to come
pick her up in Loudon County. However, there was no proof of the content of those
conversations. And while there is proof that Co-defendant Brown sent messages to other
people seeking help and indicating her intent to take collateral for the money the victim
owed her, the proof showed that Co-defendant Orr did not want the television Co-defendant
Brown offered and there was no proof of any communications of any kind between Co-
defendant Brown and Defendant.

Other potentially corroborating evidence at trial not mentioned in the State’s brief
include documentation that Co-defendant Brown’s EBT card was used at Sandy’s Mini
Mart in Chattanooga and surveillance video from the market showing Co-defendants
Brown and Orr in the market at 9:30 a.m. after the victim’s murder on May 10, 2017.
However, again none of this evidence affirms Defendant’s “participation in the murders,
whether through [his] own acts or through the acts of another for whom [he] was criminally
responsible.” Thomas, 687 S.W.3d at 250.

At trial, Co-defendant Brown testified that when they returned to Chattanooga and
arrived at Defendant’s home, Co-defendant Orr gave Defendant a gun wrapped in a gray
bandana and said, “here’s your gun back.” However, the trial judge ruled that testimony
was not sufficiently corroborated and granted Defendant’s motion of judgment of acquittal
at the conclusion of the bifurcated hearing on Defendant’s handgun possession charge.

Prior to the Thomas decision, the evaluation of the corroborating evidence could be
viewed to connect Defendant to the commission of the offense; the evidence was certainly
slight and when standing alone, entitled to little consideration. However, because we find
this case very similar to Thomas, following the supreme court’s analysis, we are
constrained to conclude that the evidence was not sufficient to support Defendant’s
convictions based on Co-defendant Brown’s accomplice testimony even under a theory of
criminal responsibility. The corroborating evidence presented at trial through the cell
phone records merely established Defendant’s presence at the scene and that he had an
opportunity to commit the crimes for which he was convicted. There was no adequate
corroboration that Defendant acted with intent to promote or assist in the offenses in this
case or to benefit in the proceeds or results of the offenses. Furthermore, this same
evidence fails to show that Defendant intended to commit the underlying felonies of theft
or robbery to support his felony murder conviction. Because we conclude that the evidence
was insufficient to support Defendant’s convictions for felony murder, theft of property
under $1,000, and especially aggravated robbery, we reverse and dismiss the convictions.

- 18 -
However, in the event of further appellate review, we will address Defendant’s
remaining issues.

II. Admission of Hearsay

Hearsay “is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R.
Evid. 801(c). The Tennessee Supreme Court has explained that the appellate standard of
review for ruling on hearsay evidence has multiple layers:

Initially, the trial court must determine whether the statement is hearsay. If
the statement is hearsay, then the trial court must then determine whether the
hearsay statement fits within one of the exceptions. To answer these
questions, the trial court may need to receive evidence and hear testimony.
When the trial court makes factual findings and credibility determinations in
the course of ruling on an evidentiary motion, these factual and credibility
findings are binding on a reviewing court unless the evidence in the record
preponderates against them. State v. Gilley, 297 S.W.3d [739, 760-61 (Tenn.
Crim. App. 2008)]. Once the trial court has made its factual findings, the
next questions- whether the facts prove that the statement (1) was hearsay
and (2) fits under one [of] the exceptions to the hearsay rule – are questions
of law subject to de novo review. State v. Schiefelbein, 230 S.W.3d 88, 128
(Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W. 3d 703, 721 (Tenn.
Crim. App. 2005).

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).

One exception to the hearsay rule is the statement of a co-conspirator. See Tenn. R.
Evid. 803(1.2)(E). Under this exception, hearsay is admissible if it constitutes “a statement
by a co-conspirator of a party during the course of and in furtherance of the conspiracy.”
Id. “Casual conversation between or among co-conspirators is not considered to be in
furtherance of the conspiracy.” State v. Carruthers, 35 S.W.3d 516, 556 (Tenn. 2000)
(citing State v. Hutchison, 898 S.W.2d 161, 170 (Tenn. 1994)).

Before a co-conspirator’s statement can be admitted, the existence of the
prerequisite conspiracy must be proven by a preponderance of the evidence. State v. Berry,
141 S.W.3d 549, 585 (Tenn. 2004) (citing State v. Stamper, 863 S.W.2d 404, 405-06 (Tenn.
1993)). “A conspiracy is defined as a combination between two or more persons to do a
criminal or unlawful act or a lawful act by criminal or unlawful means.” State v. Alley, 968
S.W.2d 314, 316 (Tenn. Crim. App. 1997). An implied understanding rather than formal
words or a written agreement between the parties is sufficient to prove a conspiracy. State
v. Gaylor, 862 S.W.2d 546, 553 (Tenn. Crim. App. 1992). A conspiracy may be shown by

- 19 -
“a mutual implied understanding,” circumstantial evidence, and the parties’ conduct. Id.;
Randolph v. State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978). Furthermore:

To be admissible under the co-conspirator hearsay exception, a statement
must be made “during the course of” a conspiracy. This means that the
conspiracy must have been occurring or ongoing at the time the statement
was made. See State v. Walker, 910 S.W.2d 381, 385 (Tenn. 1995); Gaylor,
862 S.W.2d at 554; Neil Cohen et al., Tennessee Law of Evidence §
803(1.2)(6) (3d ed. 1995). If the conspiracy had not begun or had already
concluded when the statement was made, the statement will not be
admissible under the co-conspirator exception. [Gaylor, 862 S.W.2d at 554].
The exception also requires that the statement be “in furtherance of” the
conspiracy. In short, the statement must be one that will advance or aid the
conspiracy in some way. See State v. Heflin, 15 S.W.3d 519, 523 (Tenn.
Crim. App. 1999).

Carruthers, 35 S.W.3d at 555. Statements made in furtherance of the conspiracy “include
statements designed to get the scheme started, develop plans, arrange for things to be done
to accomplish the goal, update other conspirators on the progress, deal with arising
problems, and provide information relevant to the project.” Id. at 556 (quoting Cohen,
supra, § 803(1.2)(6)).

Defendant contends that because the State failed to prove Defendant was in a
conspiracy with Co-defendants Brown and Orr to rob or steal from the victim, the trial
court abused its discretion by admitting Co-defendant Orr’s text messages under the co-
conspirator’s exception to hearsay. The hearsay statements in question include
documentation of text messages with no content; a text message from Co-defendant Orr to
Defendant, “Shoulld I do her too[?],” sent to Defendant while they were in the car on the
drive back to Chattanooga after the victim’s death; and a text message sent from Defendant
to Co-defendant Orr, “Totally violated brh frfr” along with Co-defendant Orr’s response,
“Lol luv ya cuz but I’m tryna take care something I got you though[.]”

At the pretrial hearing on Defendant’s motion in limine to exclude Co-defendant
Orr’s cell phone records, defense counsel agreed that Defendant’s text message about being
violated was admissible but that the evidence should be restricted to make no reference to
Defendant’s probation. Defense counsel further agreed that Co-defendant Orr’s reply
would “likely” come in as a response. Thus, on appeal, it appears the only text message
Defendant contends to be prejudicial was Co-defendant Orr’s text message to Defendant,
“Shoulld I do her too[?]” Defendant argues in his brief that this text was highly prejudicial
because the State used it to argue that Co-defendant Orr was “looking for [Defendant’s]
approval to kill [Co-defendant] Brown as a way to cover up what [Co-defendant] Orr had
just done, implying that [Defendant] was the ringleader in this chain of events.”

- 20 -
At the conclusion of the hearing on the motion in limine, the trial court took the
matter under advisement. The trial court subsequently entered a written order concluding,
without making any specific factual findings, that the State had proven by a preponderance
of evidence the existence of a conspiracy between Defendant and Co-defendants Brown
and Orr, and therefore, the text messages between Co-defendant Orr and Defendant were
admissible provided the State could prove at trial that the communications were “made
during the pendency of the conspiracy and in furtherance of the conspiracy.” The trial
court further stated: “At this time, the Motion in Limine regarding the text messages and
phone communications is denied. However, if the State is unable to prove the conspiracy
during the trial on this matter, [D]efendant will be allowed to renew his motion.” At trial,
Defendant again objected to the admission of the text messages for the same reasons set
forth in his motion in limine. Without making any findings as to whether the State had
proven the existence of a conspiracy, the trial court announced that its prior ruling stood.

From our de novo review of the facts, we conclude that the evidence presented at
the pretrial hearing and at trial preponderates against the trial court’s ruling that a
conspiracy existed between Defendant and Co-defendants Brown and Orr to rob or steal
from the victim. While there is evidence that Defendant accompanied Co-defendant Orr
to Loudon County where they picked up Co-defendant Brown and then drove back to the
victim’s house, there is no evidence of any communication between Defendant and either
co-defendant about taking anything from the victim. Co-defendant Brown messaged Co-
defendant Orr, about a television in the victim’s home, but there was nothing to indicate
that Co-defendant Orr wanted the television. Most of the text messages between Co-
defendants Brown and Orr concerned Co-defendant Brown’s request for a ride from the
victim’s home and the fact that she and the victim were fighting over money the victim
owed her for selling roxies for him. There was no evidence of any communications with
Defendant about a robbery or theft. Additionally, the proof showed that the only item taken
from the victim’s house was his cell phone which Co-defendant Brown already had in her
possession.

While there was proof that calls and text messages were exchanged between
Defendant and Co-defendant Orr after Co-defendant Orr agreed to drive to Loudon County
to pick up Co-Defendant Brown and prior to their departure for Loudon County, the content
of those calls and texts was not proven and was thus unknown. Additionally, Co-defendant
Brown told police during her prior interviews that Defendant did not enter the victim’s
home and that Defendant actually told Co-defendant Orr to get back in the car. And when
Co-defendant Orr messaged Defendant asking, “Shoulld I do her too[?],” Defendant never
responded. His phone records showed that he was watching YouTube during much of the
drive back to Chattanooga. This evidence preponderates against the trial court’s finding
that Defendant was involved in a conspiracy with Co-defendants Brown and Orr.

Moreover, we find that admission of the text message “Shoulld I do her too[?]” was
not harmless error as argued by the State. “Harmless error analysis applies to virtually all

- 21 -
evidentiary errors other than judicial bias and denial of counsel.” State v. James, 81 S.W.3d
751, 763 (Tenn. 2002). Under a harmless error analysis, we must examine the entire record
to determine whether the error “more probably than not affected the judgment or would
result in prejudice to the judicial process.” State v. Rodriguez, 254 S.W.3d 361, 374 (Tenn.
2008).

The erroneously admitted text message was unclear in its meaning and subject to
interpretation. Defendant argues that Co-defendant Orr was asking Defendant if he thought
Co-defendant Orr should have sex with Co-defendant Brown based on the fact that they
had a relationship approximately ten years ago and had recently reconnected. The State in
its closing argument and in its brief argues that Co-defendant Orr was asking Defendant if
he should kill Co-defendant Brown to silence her from speaking about Co-defendant Orr’s
shooting of the victim. In its closing argument, the State repeatedly referenced the text
message and asserted that it was a “very critical piece of evidence, because what it shows
you is that [Defendant] is part of the decision-making process.” The State further argued:

He’s not just along for a ride. He’s not afraid of [Co-defendant Orr], like
Defense Counsel would suggest to you, because he’s involved in the
decision-making process. He’s being consulted and asked what his thoughts
are about disposing of [Co-defendant] Brown. And Defense Counsel would
make you think, well, it doesn’t make any sense that, you know, he would
say no, unless the only reasonable reason he would say that is because he
didn’t want anything to do with that. Now, there’s a lot of reasons that you
don’t want to stack up another dead person on top of the one that you just left
lying on the floor in Loudon. Especially when you’re driving down the
interstate.

Because there is scant, if any, evidence in this case showing that Defendant
committed the charged offenses, the erroneous admission of Co-defendant Orr’s text
message to Defendant more probably than not affected the verdict. See Rodriguez, at 372;
Tenn. R. App. P. 36(b). Thus, based on this claim, had we not found the evidence
insufficient to support Defendant’s convictions, Defendant’s convictions would be
reversed and remanded for a new trial.

III. Reference to “Street Gang Unit”

Generally, relevant evidence is admissible. Tenn. R. Evid. 402. Relevant evidence
is evidence that has “any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” Id. 401. However, a trial court may exclude relevant evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice[.]” Id. 403.
Unfair prejudice means “[a]n undue tendency to suggest decision on an improper basis,

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commonly, though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 947,
951 (Tenn. 1978) (quoting Tenn. R. Evid. 403, Advisory Comm’n Comment).

This court reviews a trial court’s decision regarding the admissibility of evidence
for an abuse of discretion. Id. Mere disagreement with the trial court is insufficient to
disturb the trial court’s evidentiary decisions. See Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 524 (Tenn. 2010). A trial court abuses its discretion when it “applies incorrect legal
standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous
assessment of the proof, or applies reasoning that causes an injustice to the complaining
party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).

Defendant argues that the trial court erred by overruling his objection and allowing
Special Agent Legg to testify that he “met with [Chattanooga’s] street gangs unit” to “see
if they were familiar” with Defendant. He contends that the single reference to the gang
unit was unfairly prejudicial. However, as argued by the State, this evidence was relevant
to show how Defendant was identified by law enforcement as they only had his nickname,
“Money,” at the time and did not know his location. Special Agent Legg did not testify
that Defendant was in a criminal gang or that he associated with one, and the State never
asked whether Defendant was in a gang.

In State v. Duncan, the defendant argued that the officers’ testimony concerning
their work in the gang unit of the Jackson police department resulted in prejudice. No.
W2017-00529-CCA-R3-CD, 2018 WL 1182579, at *5 (Tenn. Crim. App. Mar. 6, 2018).
However, this court found that Defendant was not entitled to relief “because the officers’
testimony amounted to nothing more than a basic description of their job duties. The
officers’ testimony is no different than a medical examiner testifying about his work in
examining deceased bodies.” Id. We note that in Duncan, there was additional gang-
related evidence presented at trial which along with the officers’ testimony did not
prejudice the defendant’s trial. Id. at *6.

Thus, we conclude that the single reference to the Chattanooga “street gangs unit”
did not prejudice Defendant’s trial in this case. The trial court did not abuse its discretion
in admitting the evidence as it was relevant to establishing Defendant’s identity. Defendant
is not entitled to relief on this issue.

IV. Prosecutorial Misconduct During Closing Argument

Defendant contends that during closing argument, the State violated his right to a
fair trial by repeatedly referring to his nickname, “Money,” “by creating misleading
inferences that were not based on the proof, and by generally alluding to fear-mongering
themes of racial stereotypes and gang violence.” Defendant concedes that he did not object
to the prosecutor’s remarks during closing argument but requests that we review this issue
for plain error. The State argues that Defendant is not entitled to plain error relief.

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Under plain error review, relief will only be granted when five prerequisites are met:
(1) the record clearly establishes what occurred in the trial court, (2) a clear and
unequivocal rule of law was breached, (3) a substantial right of the accused was 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. Rimmer, 623 S.W.3d 235, 255-
56 (Tenn. 2021) (citing State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016)). If any one of
these factors is not satisfied, we do not need to consider the remaining factors. State v.
Smith, 492 S.W.3d 224, 232 (Tenn. 2016).

Closing arguments are valuable tools for both the prosecution and the defense, and
the Tennessee Supreme Court has historically allowed wide latitude to counsel in arguing
their cases during closing arguments. State v. Cauthern, 967 S.W.2d 726, 737 (Tenn.
1998). “Trial judges in turn are accorded wide discretion in their control of those
arguments.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. 2003) (quoting State v. Zirkle, 910
S.W.2d 874, 888 (Tenn. Crim. App. 1995)). In order to properly bring an issue regarding
closing argument forward on appeal, the complaining party must have objected to the
argument contemporaneously. State v. Robinson, 146 S.W.3d 469, 518 (Tenn. 2004); see
State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997).

In Judge v. State, this court determined five factors to consider to determine whether
there has been prosecutorial misconduct in closing arguments: (1) the facts and
circumstances of the case; (2) any curative measures undertaken by the court and the
prosecutor; (3) the intent of the prosecution; (4) the cumulative effect of the improper
conduct and any other errors in the record; and (5) the relative strength or weakness of the
case. 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). Courts also “take[] into account
whether the improper remark of the prosecutor was made in response to the defendant’s
comments or argument.” Id.; see also Tenn. R. Crim. P. 29.1(c)(2) (“The state’s final
closing argument is limited to the subject matter covered in the state’s first closing
argument and the defendant’s intervening argument.”).

In State v. Goltz, the Tennessee Supreme Court outlined “five general areas of
prosecutorial misconduct” that can occur during closing arguments: (1) intentionally
misstating the evidence or misleading the jury as to the inferences it may draw; (2)
expressing a personal belief or opinion as to the truth or falsity of the evidence or the
defendant’s guilt; (3) using arguments calculated to inflame the passions or prejudices of
the jury; (4) injecting broader issues than guilt or innocence of the accused; and (5)
intentionally referring to or arguing facts outside the record that are not matters of common
public knowledge. Goltz, 111 S.W.3d at 5.

Here, Defendant contends that the State’s violated his right to a fair trial during
closing argument by repeatedly using his nickname “Money,” “by creating misleading
inferences that were not based on the proof, and by generally alluding to fear-mongering

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themes of racial stereotypes and gang violence.” He further argues that the State’s closing
argument invited the jury to make “inappropriate assumptions about the parties’
appearances and behaviors” by trying to make the case about “gangs and racial stereotypes,
fanning the flames of fear and bias,” and inviting the jury to make inappropriate
assumptions about the parties’ appearances and behaviors. Defendant also asserts that
during its rebuttal argument, the State misrepresented facts by insinuating that Co-
defendant Orr responded to Co-defendant Brown’s request for “shootas” when Ms. Brown
testified at trial that she sent that message to another person on behalf of someone else in a
related matter.

We have reviewed the transcript of the trial testimony and closing arguments and
determine that the prosecutor’s statements, while pushing the boundaries, did not violate
Defendant’s right to a fair trial. Regarding the prosecutor’s use of Defendant’s nickname,
although nicknames “should generally be avoided,” there is no outright prohibition against
their use. Zirkle, 910 S.W.2d at 886; State v. Robinson, No. W2016-01803-CCA-R3-CD,
2017 WL 5952925, at *4 (Tenn. Crim. App. Nov. 29, 2017). Further, the nickname
“Money” was relevant to Defendant’s identity and was not connected with any gang
affiliation.

While we agree that the State identified parties by race and appearance, it used facts
in evidence as descriptions and characterized the victim and other parties as it did the co-
defendants. “[P]rosecutors, no less than defense counsel, may use colorful and forceful
language in their closing arguments, as long as they do not stray from the evidence and the
reasonable inferences to be drawn from the evidence or make derogatory remarks or appeal
to the jurors’ prejudices.” State v. Banks, 271 S.W.3d 90, 131 (citation omitted).

Regarding the claim that the state misrepresented facts in its rebuttal argument, the
State did not argue that Co-defendant Orr received the text message from Co-defendant
Brown asking for “shootas.” It presented the facts that after Co-defendant Brown sent the
message, Defendant and Co-defendant Orr drove to pick up Co-defendant Brown and that
they had a gun. Only in “exceptional circumstances” do errors reviewed under the plain
error doctrine warrant reversal. Id. at 132, n.30. We do not find exceptional circumstances
exist in this case.

Upon review, we conclude that no clear and unequivocal rule of law was breached,
no substantial right of the accused has been adversely affected, and consideration of the
error is not necessary to do substantial justice. Because Defendant has not established the
criteria for plain error review, he is not entitled to relief on this issue.

CONCLUSION

Because the evidence was insufficient to sustain the convictions, the judgments of
the trial court are reversed and the charges are dismissed with prejudice. Even if the

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evidence had been sufficient, the trial court erred by admitting into evidence the text
message by Co-defendant Orr, and this is reversible error. If this court were not dismissing
the charges, Defendant would be entitled to a new trial.

S/ Jill Bartee Ayers
JILL BARTEE AYERS, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10816177. Public record. Not legal advice.