The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 26, 2025
STATE OF TENNESSEE v. LARRY E. McKEE, JR.
Appeal from the Bradley County Criminal Court
No. 22-CR-577 Andrew Freiberg, Judge
APR /)
No. E2024-00990-CCA-R3-CD Clerk of C8
Rec'd by
Defendant, Larry E. McKee, appeals his Bradley County conviction for theft of property
valued at more than $1,000, but less than $2,500. He contends on appeal that the trial court
abused its discretion and committed reversible error by (1) prohibiting Defendant’s trial
counsel from cross-examining two witnesses as to the manner in which the landlord of the
burglarized property received rent payments from the tenants, (2) refusing to allow trial
counsel to explain the relevancy of said line of questioning, and (3) threatening to hold the
trial counsel in contempt for continuing to ask the witnesses about such payment methods
after the trial court ruled them irrelevant. After review, we affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which MATTHEW J. WILSON,
J. and W. MARK WARD, Sp. J., joined.
Todd W. Gee (on appeal), Cleveland, Tennessee; and Abby Carrol (at trial), Assistant
Public Defender, Cleveland, Tennessee, for the appellant, Larry E. McKee, Jr.
Jonathan Skrmetti, Attorney General and Reporter; Ryan W. Davis, Assistant Attorney
General; Shari Lynn Tayloe, District Attorney General; and Dallas Scott III, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural History
The Bradley County Grand Jury indicted Defendant for burglary and theft of
property valued at more than $2,500. The case proceeded to trial on August 16, 2023.
Corporal Eddie Blackwell, a detective with the Bradley County Sheriff's
Department, testified that on October 12, 2020, he responded to a call reporting the
burglary of a residence at 3370 Buchanan Road in Bradley County (‘the property”). Upon
arriving, Corporal Blackwell spoke with Christopher Bowling and Lance Sears, residents
of the property, who advised him that certain personal property was missing from the
residence. These items included a basketball goal and a lawn mower.
After leaving the premises, Corporal Blackwell testified he came across a truck
parked on the side of the road less than a mile away from the property. The truck was
hauling a basketball goal and a lawnmower. Observing that the items matched the
description of the stolen items, Corporal Blackwell testified that he stopped and spoke with
Defendant, who was standing next to the truck.
Corporal Blackwell testified that he questioned Defendant about the basketball goal!
and lawnmower. Defendant informed him that he retrieved the items from “down the
road.” After reading Defendant his Miranda rights, Defendant told Corporal Blackwell
that he had been given permission by Tim Shaw to retrieve the items. Corporal Blackwell
then called Mr. Bowling and Mr. Sears to inquire into the identity of Mr. Shaw, and they
informed him that Mr. Shaw was the owner of the property.
Mr. Bowling and Mr. Sears arrived at the scene and confirmed that the items on the
trailer were their items which had been located at the property. Corporal Blackwell then
turned the items over to Mr. Bowling and Mr. Sears. He placed Defendant in custody and
transported him to the Bradley County Sherriff’s Office.
On cross-examination, Corporal Blackwell testified that Defendant was cooperative
with and responsive to his questioning. He further stated that either Mr. Bowling or Mr.
Sears gave him Mr. Shaw’s phone number, and he twice attempted unsuccessfully to
contact Mr. Shaw.
Christopher Bowling testified that he and his family were moving out of the property
on the day of the burglary. Upon returning to the premises after leaving to get food, Mr.
Bowling noticed a number of items missing, including a lawnmower, a grill, a basketball
goal, and three lanterns. He stated that the total value of these items was $1,630.
On cross-examination, Mr. Bowling testified that Mr. Spears was the only resident
listed on the lease. Mr. Bowling also testified that he did not know Defendant socially but
had seen him patronize his place of employment.
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Lance Sears testified that he began working for Mr. Shaw in June 2019 and was
renting the property from him as a condition of that employment arrangement. He testified
that he was in the process of moving out of the property on the date of the burglary pursuant
to an arrangement he had with Mr. Shaw. Mr. Sears was the sole resident on the lease.
Mr. Sears stated that on October 12, 2020, he and his family had left the property in
the middle of their moving out in order to get food. Upon returning, he noticed that a
toolbox he kept in the back of his truck had been pulled out into the yard alongside the
house and emptied. Mr. Sears then called law enforcement.
Mr. Sears noticed tools were missing from his toolbox, including a SkilSaw, a
Sawzall, drills, sheetrock tools, electrical tools for electrical work, and plumbing tools. He
valued the items at $1,000. He also testified that the following items were also missing: a
push mower, a rototiller, three toolboxes, a shop vacuum, a wrought iron bench, and a
partially full bucket of nails. He valued these items at a total of $425.
Mr. Sears stated that he was moving from the property because he was terminating
his employment with Mr. Shaw due to “moral differences” between them. He explained,
“[I]t just got to where I couldn’t morally do it anymore.” According to Mr. Sears, he and
Mr. Shaw had come to an agreement wherein Mr. Sears was given a certain amount of time
to move from the property.
Trial Counsel asked Mr. Sears whether he was renting the property from Mr. Shaw
in his personal capacity or First Enterprises, the sole proprietorship of Mr. Shaw. Mr. Sears
said that he “looked at them as the same, so [he was] not real sure how they had the
documentation set up.” When Trial Counsel inquired into whether Mr. Sears ever paid rent
by check, he replied that payment was made in “all different types of ways. It was checks.
It was cash at one point. You know there were times when he would just take it out of my
paycheck [without prior consent].”
Trial Counsel proceeded by asking Mr. Sears whether he wrote the checks to Mr.
Shaw individually or to First Enterprises, to which the State objected on grounds of
relevancy. The following interaction then occurred:
THE COURT: How is payment method relevant?
[TRIAL COUNSEL]: Your Honor, again this is going to the property. In
this lease I don’t know if the landlord is Tim Shaw, First Enterprises, and it
is going to be relevant for the possession of this property —
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THE COURT: I overrule. And I will just say if it can’t be done succinctly,
it’s a long explanation for relevance, it’s not; so I’m going to overrule it. I’m
deeming it not relevant. Payment method is irrelevant.
Trial Counsel continued without objection and asked Mr. Sears whether he knew if Mr.
Shaw or First Enterprises was his landlord. Mr. Sears answered, “I look at them as the
same, so,no....” Trial Counsel followed up by asking, “But First Enterprises was taking
money out of your paycheck for your rent?” The State objected, and the trial judge
sustained the objection and stated, “I have deemed that irrelevant.” Trial Counsel
continued without objection, asking Mr. Sears whether he was behind on rent payments.
Mr. Sears confirmed that he was behind, but he was unsure of the amount.
Trial Counsel also questioned Mr. Sears as to the reason for his leaving Mr. Shaw’s
employment. Mr. Sears testified that he had “built and remodeled houses for 25 years” and
“believed in doing things the right way.” According to him, he was “asked to band-aid a
lot” and “just didn’t like the way [Mr. Shaw] treated tenants in the aspect of repairs... .”
Mr. Sears also testified as to the circumstances of his and Mr. Shaw’s landlord-
tenant relationship. He explained, “[Mr. Shaw] kind of talked me into living [at the
property]... when I went to work for him.” He testified that the property was in “massive
disrepair,” but that Mr. Shaw had reassured him that he would be provided with the
materials to make necessary repairs. Despite these assurances, Mr. Sears testified that
many of the issues were never addressed. “[T]he entire time we were there we never had
a kitchen. ... The bathroom floor was falling in. The only way anything got fixed was if
I fixed it.”
Mr. Sears confirmed that he had been sued by Mr. Shaw in regard to the unpaid
rental payments and that Mr. Shaw had obtained a $12,000 judgment against Mr. Sears.
Trial Counsel once again questioned Mr. Sears regarding the method of rental
payment to Mr. Shaw in the following interaction:
Q [By Trial Counsel:] [First Enterprise] was taking money out of your
paycheck?
THE COURT: Counsel.
[TRIAL COUNSEL]: Your Honor, it is relevant because he is sued —
THE COURT: I’m sustaining the objection.
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[TRIAL COUNSEL]: That’s fine.
Q [(By Trial Counsel)] Who were you sued by? First —
THE COURT: That’s the third time, too, Counsel.
[TRIAL COUNSEL]: Yes, Your Honor.
Trial Counsel made no objection to the trial court’s ruling.
On redirect, Mr. Sears stated that he was still in possession of the property on the
day of the burglary and was free to remain on the premises until he had completely moved
out. Moreover, he confirmed that he was given a timeframe in which to move out and that
he was still within that timeframe at the time of the burglary.
On recross-examination, Mr. Sears testified that he had never met or heard of
Defendant prior to the night of the burglary. He also testified that there was no signage on
the property indicating that the house was for rent by Mr. Shaw or First Enterprises.
Tim Shaw testified that he owned a real estate brokerage and was a practicing
attorney. He explained that First Enterprises was a real estate and construction company
that he owned as a sole proprietor. Mr. Shaw also testified that the property was owned by
him in his individual capacity along with his mother. He confirmed that, at the time of the
burglary, Mr. Sears was occupying the property but was in the process of moving out. Mr.
Shaw testified that Mr. Sears’s health problems had caused him to fall behind on the rental
payments, and the two came to an agreement for him to be moved out by October 25, 2020.
He confirmed that he repossessed the property on October 30, 2020. Furthermore, Mr.
Shaw said that he did not know Defendant and had never given him permission to enter the
property.
On cross-examination, Trial Counsel questioned Mr. Shaw as to the reason that First
Enterprises was listed in the lease agreement between him and Mr. Sears if Mr. Sears had
rented the property from him and his mother in their individual capacities. Mr. Shaw
explained that First Enterprise was the location of his personal office and the place where
tenants paid their rent. He testified, “I don’t want them trying to find me at my home. I
have a business for that purpose.” He stated that he made clear to his tenants that he and
First Enterprise were two separate entities.
Trial Counsel then attempted to ask Mr. Shaw whether it would make more sense
for his tenants to pay rent to First Enterprises rather than to him individually, and Mr. Shaw
stated, “They need to pay it to Tim Shaw at the office of First Enterprise.” Trial Counsel
repeated the question, and the State objected. The trial court called a jury out hearing, and
the following interaction occurred:
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THE COURT: . . . Counsel, that’s now the fourth time you’ve asked
questions about where Lance Sears or how he addressed payments or checks.
I do not find it relevant how Lance Sears addressed a rent check. I understand
that you think it’s relevant. It is preserved for the record, but if you ask that
question again, I am going to be compelled to issue a show cause for why
you shouldn’t be held in contempt. It is four questions about how Lance
Sears addresses his rent payments. I do not deem it relevant, and I’m
instructing you not to ask that question again during this trial.
[TRIAL COUNSEL]: Yes, Your Honor.
Trial Counsel once again made no objection.
Mr. Shaw reaffirmed that he did not know Defendant in response to Trial Counsel
asking whether Mr. Shaw had rented a separate property to Defendant in 2010. He
explained, “I’ve had a lot of tenants that’s moved in and out.... And I don’t get to know
my tenants.” Trial Counsel inquired into whether Mr. Shaw’s office had conducted a
search of their records for Defendant when Mr. Shaw was notified of the pending criminal
case, and Mr. Shaw testified that it did but to no avail. Trial Counsel then asked Mr. Shaw
whether the lease agreement between him and Mr. Sears allowed First Enterprise to remove
any personal property of the tenants left at the property after abandonment or vacation
thereof, and Mr. Shaw testified that it did.
At the conclusion of the State’s proof, Defendant moved for judgment of acquittal
on all counts. The trial court denied the motion, finding that a reasonable jury could find
Defendant guilty on all counts.
Defendant did not testify or present any proof.
Based on this proof, the jury returned a verdict of not guilty on the count of burglary
and guilty on the lesser-included offense of theft over $1,000, but less than $2,500. The
trial court sentenced Defendant as a Range II offender to three years in the Tennessee
Department of Correction.
On November 1, 2023, Defendant filed a motion for new trial, wherein he claimed
that there was insufficient evidence to support his conviction, that the presentation of his
defense was unduly prejudiced by the trial court’s sustaining of multiple objections during
his cross-examinations of Mr. Sears and Mr. Shaw, and that the evidence was insufficient
to support the Defendant’s sentence.!
On May 28, 2024, Defendant, through new counsel, filed an amended motion for
new trial. On June 7, 2024, the trial court heard arguments and denied the motion.
Defendant filed a timely appeal.
Analysis
Relevancy
On appeal, Defendant claims that the trial court committed reversible error by
deeming questions regarding the method of rental payments irrelevant. Specifically, he
argues that such questions were relevant to the theft charge because it tended to undermine
Mr. Shaw’s credibility. The State argues that the trial court properly exercised its
discretion in excluding the questions as irrelevant. We agree with the State.
We review a trial court’s evidentiary decisions under an abuse of discretion standard
and will reverse the decision only if “the court applied an incorrect legal standard, or
reached a decision which is against logic or reasoning” and admission or exclusion of the
evidence “caused an injustice to the party complaining.” State v. Gilliland, 22 S.W.3d 266,
270 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)) (internal
quotation marks omitted).
Under Rule 401 of the Tennessee Rules of Evidence, evidence is deemed relevant
if it has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable than it would be without the evidence.”
Moreover, under Rule 608, prior bad acts of a witness may only be inquired into on cross-
examination where the underlying conduct “concern[s] the witness’s character for
truthfulness or untruthfulness.”
The trial court did not abuse its discretion in ruling that the method of rental
payments was not relevant to Defendant’s case because such decision was not “against
logic or reasoning” or based on “an incorrect legal standard.” See Gilliland, 22 S.W.3d
266 at 270. The trial court in this case based its conclusion on the belief that the method
of rental payments was not relevant to Mr. Shaw’s character for truthfulness. This ruling
' On November 15, 2023, Trial Counsel moved to withdraw because Defendant had filed a
complaint against her with the Tennessee Board of Professional Responsibility. The trial court granted the
motion on February 12, 2024, and appointed Appellate Counsel to represent him in further proceedings.
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is in line with the requirements of Rules 401 and 608 of the Tennessee Rules of Evidence.
Further, the trial court could reasonably conclude that Mr. Shaw’s failure to properly
separate his personal identity from his sole proprietorship in his relationship with Mr. Sears
did not sufficiently implicate his veracity to render such fact relevant character evidence.
See Tenn. R. Evid. 401, 608.
Moreover, even assuming marginal relevancy of rental payments, the exclusion of
such testimony did not “cause[] an injustice” to Defendant. See Gilliland, 22 S.W.3d 266
at 270. Defendant was able to elicit testimony from Mr. Sears regarding his objections to
Mr. Shaw’s business practices. Mr. Sears also testified that Mr. Shaw was removing rental
payments from his paycheck without prior consent. Defendant was allowed to question
Mr. Shaw regarding whether he had previously rented property to Defendant, despite Mr.
Shaw claiming not to know him. This testimony was sufficient to support Defendant’s
theory of the case, and we do not see how an additional line of questioning regarding the
method of rental payments would have affected the jury’s verdict.
The trial court did not abuse its discretion in holding the method of rental payments
irrelevant. Defendant is not entitled to relief.
Right to Confrontation
On appeal, Defendant asserts that his rights under the Confrontation Clause of the
United States Constitution and Article 1, section 9 of the Tennessee Constitution were
violated by the trial court’s ruling that the method of payment of rental payments was
irrelevant and its refusal to allow Trial Counsel to explain the relevancy of the payment
method. He also claims that the same were violated by the trial court’s threat of contempt.
The State argues that Defendant has waived his Confrontation Clause and Article 1 claims
by not raising the issue at trial and in any event the trial court properly deemed such
testimony irrelevant and that the decision to threaten contempt was proper. Defendant
argues that his Confrontation Clause claims were not waived because they were sufficiently
raised at trial and in its motion for new trial. We agree with the State.
Ordinarily, before a party can challenge an evidentiary ruling by the trial court on
appeal, the party must have preserved the issue in the trial court. “To preserve an issue,
the party should first assert a timely objection identifying a specific ground.” Strate v.
Thompson, No. W2022-01535-CCA-R3-CD, 2023 WL 4552193, at *3 (Tenn. Crim. App.
July 14, 2023), no perm. app. filed. A party’s “specific ground” for an objection is
important because a party generally may not “assert a new or different theory to support
the objection” in the appellate court. State v. Howard, No. M2020-01053-CCA-R3-CD,
2021 WL 5918320, at *6 (Tenn. Crim. App. Dec. 15, 2021), no perm. app. filed. Raising
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an issue for the first time in a motion for new trial does not avoid a determination that such
issue has been waived. State v. Vance, 596 S.W.3d 229, 254 (Tenn. 2020).
Defendant relies on State v. Bowers, No. M2022-00949-CCA-R3-CD, 2023 WL
6211909, (Tenn. Crim. App. Sept. 25, 2023), no perm. app. filed (not for citation), to assert
that a defendant does not have to explicitly state that his objection was pursuant to the
Confrontation Clause in order to avoid waiver of plenary review. In Bowers, the trial court
had allowed a prosecution witness to testify remotely via an online audio-visual application
called Zoom. Jd. at *1. Defense counsel objected at trial, stating, “I would object to Zoom.
I think I can do a more effective cross-examination personally.” Jd. at *3. The
defendant did not explicitly refer to his Confrontation rights until he filed a motion for new
trial. Jd. at *4. A panel of this Court found that the defendant had not waived his
Confrontation claims because “the context of the proceedings makes clear that Defendant
was objecting to [the witness’s] remote testimony.” Jd. at *5.
However, Bowers is sufficiently distinguishable. Trial Counsel in this case did not
merely fail to cite the Confrontation Clause or Article 1. Trial Counsel completely failed
to make any reference to any right granted under such provisions, unlike the defense
counsel in Bowers who explicitly referred to his client’s right to cross-examination. Jd. at
*5. Instead, the only arguments made by Trial Counsel in this case in opposition to the
trial court’s challenged ruling was on issues of relevancy. It is not “clear from [this]
context” that Defendant was raising a challenge under the Confrontation Clause or Article
1.
Lastly, while Defendant did argue in his motion and hearing for a new trial that the
trial court’s conduct unconstitutionally limited his rights to cross-examination, this fact
does not avoid waiver of his claims where he failed to raise such issues contemporaneously
at trial. See Vance, 596 S.W.3d at 254.
Therefore, Defendant’s claims under the Confrontation Clause of the United States
Constitution and Article 1, section 9 of the Tennessee Constitution are waived.
Plain Error Review
Defendant asserts, in the alternative, that he is entitled to plain error relief on his
claims under the Confrontation Clause of the United States Constitution and Article 1,
section 9 of the Tennessee Constitution. The State claims that Defendant is not entitled to
such relief. We agree with the State.
In criminal cases, the doctrine of plain error permits appellate courts to consider
issues that were not raised in the trial court. Tennessee Rule of Appellate Procedure 36(b)
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states in part that “[w]hen necessary to do substantial justice, an appellate court may
consider an error that has affected the substantial rights of a party at any time, even though
the error was not raised in the motion for a new trial or assigned as error on appeal.” It is
well-settled that the discretionary authority to invoke the plain error doctrine should be
“sparingly exercised,” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), because
“appellate courts do not sit as self-directed boards of legal inquiry and research, but
essentially as arbitrators of legal questions presented and argued by the parties before
them.” State v. Northern, 262 S.W.3d 741, 766 (Tenn. 2008) (Holder, J., concurring and
dissenting) (quoting Carducci v. Regan, 714 F.2d 171, 177, 230 U.S. App. D.C. 80 (D.C.
Cir. 1983)).
To determine whether a trial error rises to the level of justifying “plain error” review,
we look to the following five factors:
(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a substantial
right of the accused must have been adversely affected; (d) the accused did
not waive the issue for tactical reasons; and (e) consideration of the error is
“necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record
before this Court will recognize the existence of plain error, and complete consideration of
all the factors is not necessary when it is clear from the record that at least one of the factors
cannot be established. State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014). Even if all five
factors are present, “the plain error must be of such a great magnitude that it probably
changed the outcome of the trial.” /d. (quoting Adkisson, 899 S.W.2d at 642).
Assuming that the trial court’s challenged rulings constituted plain error, Defendant
has failed to demonstrate that the trial court’s exclusion of testimony regarding the method
of rental payments or its decision to threaten Trial Counsel with contempt “probably
changed the outcome of the trial.” See Bishop, 431 S.W.3d at 44. Trial Counsel testified
that the proposed relevancy of such testimony was to establish the apparent authority of
Mr. Shaw to command Defendant to enter the property and to impeach the general
credibility of Mr. Shaw. She further testified that, absent the threat of contempt, she
“would have continued to pursue with Mr. Shaw his business practices, the ownership of
the property, the way in which he does own those properties, and his relationship with
[Defendant].”
However, Defendant was allowed by the trial court to put forward other evidence
substantially supporting Mr. Shaw’s apparent authority to authorize Defendant’s actions
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and his alleged untrustworthiness. Defendant was allowed to cross-examine Mr. Sears as
to his moral objections to Mr. Shaw’s business practices. He was permitted to elicit
testimony from both Mr. Shaw and Mr. Sears establishing that the former had obtained a
judgment against the latter for unpaid rent. He was able to have Mr. Sears admit that First
Enterprise was taking rent payments from his paychecks without prior authorization. He
questioned Mr. Shaw as to whether he knew that he had previously rented property to
Defendant. Finally, he had Mr. Shaw admit that the lease agreement allowed First
Enterprise to remove personal property left on the property after vacation or abandonment
thereof. Despite this evidence, the jury returned a verdict finding Defendant guilty of theft
over $1,000, less than $2,500. From this verdict, we presume that the jury found credible
Mr. Shaw’s testimony that he did not know Defendant, and we find there is no reason to
believe the Trial Counsel’s proposed lines of additional questioning would have changed
that verdict.
Therefore, consideration of the alleged errors is not necessary for substantial justice,
and Defendant is not entitled to the plain error relief.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court.
S/Timothy L. Easter
TIMOTHY L. EASTER, JUDGE
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