The opinion
01/05/2026
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2025
KEVIN DEWAYNE STINNETT v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marshall County
No. 2020-CR-101 M. Wyatt Burk, Judge
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No. M2024-01897-CCA-R3-PC
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The Petitioner, Kevin Dewayne Stinnett, appeals from the Marshall County Circuit Court’s
denial of his petition for post-conviction relief. The Petitioner is serving an effective
eighteen-year sentence following his jury trial convictions for multiple drug-related
offenses. On appeal, he contends that the post-conviction court erred in denying relief on
his ineffective assistance of counsel claims related to trial counsel’s failures to: (1) move
for a dismissal for one count of the indictment, (2) object to the State’s introduction of
evidence, and (3) request a jury instruction. We affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.
Donna Hargrove, District Public Defender; Raven Prean-Morris (on appeal), Assistant
Public Defender – Appellate Division; and William J. Harold, Assistant District Public
Defender, for the appellant, Kevin Dewayne Stinnett.
Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney
General; Robert J. Carter, District Attorney General; and William Bottoms, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Petitioner’s convictions relate to evidence obtained during the execution of a
search warrant of his home, the Petitioner’s subsequent statement to law enforcement, and
the Petitioner’s text and Facebook messages. During the search of the Petitioner’s home,
[O]fficers found a “small black box” containing what appeared to be
marijuana residue and some syringes on the coffee table in the living room
as well as a “straw with residue” on the living room floor. They also found
“rolling papers” and aluminum foil with “a white crystalline substance” on
top in the living room. Inside a lockbox underneath the coffee table, officers
found digital scales, “plastic baggies,” “a green plant material” that appeared
to be marijuana in a Ziploc bag, a brown piece of paper containing white
powder, and numerous multicolored pills that appeared to be “ecstasy.”
Agent Shane George, who assisted in executing this search warrant, testified
that digital scales and plastic baggies “typically are possessed and employed
by drug distributors” to weigh and package small amounts of drugs for resale.
He also stated that he was able to identify the “green plant material” by smell
as marijuana. All of this evidence was located on or near the coffee table
next to where [the Petitioner] was sitting on the couch. The lockbox, where
the majority of the drugs were located, “was positioned right next to where
[the Petitioner] was [sitting] in the house” and the keys to the lockbox were
“sitting next to [the Petitioner].” Officers also found a glass pipe, a “glass
bong,” and a “marijuana grinder” in the back bedroom that had both male
and female clothing in it. Officers also uncovered a Motorola cell phone as
well as $400 in [the Petitioner’s] wallet.
See State v. Kevin Dewayne Stinnett, No. M2021-01266-CCA-R3-CD, 2022 WL
17684087, at *1 (Tenn. Crim. App. Dec. 15, 2022).
The Petitioner gave a recorded statement to the officers at the scene, which was
played at his trial. In it, the Petitioner admitted that he was a daily marijuana user. He
denied ecstasy and heroin use and said he had not used methamphetamine recently. He
said the drugs in the lockbox belonged to Stephanie Lee, who had lived at the house until
a couple of days earlier, when the Petitioner’s mother had made Ms. Lee leave. The
Petitioner told the officers that he had the key to the lock box because he helped Ms. Lee
sell the drugs. He identified Ms. Lee’s dealer and said he went with Ms. Lee to her dealer’s
home three times. Id. at *2.
The text messages and Facebook messages admitted at the trial generally contained
discussion between Ms. Lee and the Petitioner about selling and using drugs together and
between “West Hill” and the Petitioner about drug pricing, the Petitioner’s buying drugs
from West Hill, and the Petitioner’s selling drugs with Ms. Lee. The Petitioner also
discussed Ms. Lee’s trying to get the keys to his lockbox. Id. at *2-3.
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At the close of the State’s proof, the trial court granted the defense’s motion for
judgment of acquittal for Count 1of the indictment, charging possession of heroin pills with
the intent to sell or deliver. At the conclusion of the proof, the jury found the Petitioner
guilty of possession of heroin with the intent to sell or deliver (Count 2), possession of 0.5
gram or more of cocaine with the intent to sell or deliver (Count 3), possession of less than
0.5 gram of methamphetamine (Count 4), misdemeanor possession of marijuana (Count
5), and possession of drug paraphernalia (Count 6). The trial court imposed partially
consecutive sentencing, resulting in an effective eighteen-year sentence. See id. at *1-3.
In the appeal of the convictions, the Petitioner challenged three issues: (1) the
sufficiency of the evidence to support the convictions, (2) the trial court’s denial of his
motion for a continuance, and (3) the denial of alternative sentencing and the imposition
of partially consecutive sentences. This court affirmed. See id.
The Petitioner filed a timely, pro se post-conviction petition. Counsel was
appointed, who amended the petition. As relevant to this appeal, the Petitioner alleged that
he received the ineffective assistance of counsel because: (1) counsel failed to move for
the dismissal of Count 1 at the beginning of the trial and to object to the State’s evidence
of unidentified pills, which were the subject of Count 1, (2) counsel did not object to the
introduction of the search warrant as an exhibit, which included prejudicial information in
its statement of facts, (3) counsel did not object to the introduction of the Petitioner’s
Facebook and text messages about purported drug transactions with people who were not
involved in the case, and (4) counsel did not request a limiting instruction that the jury
could not use proof of other crimes to infer the Petitioner’s guilt of the present charges.
At the post-conviction hearing, transcripts of the trial and post-trial proceedings
were received as exhibits. The search warrant and “chemistry report,” both of which had
been trial exhibits, were received as hearing exhibits. The trial transcript reflects that, at
the beginning of the trial, the State acknowledged on the record that the pills which were
the subject of Count 1 had not been tested and that the State had no proof to show their
composition. Trial counsel responded, “I would move to dismiss unless the State feels like
between now and tomorrow they’ll be able to fix those problems. It seems like a dismissal
now would be the appropriate thing. I think it’s up to the State. If the State feels like they
can fix it between now and tomorrow, then perhaps the motion would be untimely.” The
court ruled that it would address the issue “at the appropriate time” at the close of the
State’s proof. The trial transcript reflects that the court granted the Petitioner’s motion for
judgment of acquittal as to Count 1 and that the court instructed the jury at the close of the
proof that it had dismissed Count 1 and that the jury “should not speculate as to the reason
for the removal of this charge or as to the absence of instructions on the charge.”
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The Petitioner testified that he received a pretrial, ten-year plea offer but that he had
no transportation to trial counsel’s office to discuss its terms. He said counsel called him
and advised him of the ten-year offer “a couple of days before court.” He said he had “[n]ot
completely” understood the offer’s terms and the consequences of declining it and that he
would have “signed that day” if he had understood the offer. He said he “couldn’t get to
[counsel’s] office to deal with the plea” and had not understood “[w]hy couldn’t this be
done in court” when the Petitioner would have transportation. He said that he did not have
a court date between the plea offer and the trial date and that he decided to go to trial but
later acknowledged that he had more than one court date for his case. He acknowledged
that his “case began in 2020” during the COVID-19 pandemic and that this made “coming
to court frequently difficult.” He said he ultimately received an eighteen-year sentence
with 30% release eligibility.
The Petitioner testified that he did not recall telling trial counsel that he would accept
a plea but did not want to serve jail time. He acknowledged that he had prior felony
convictions but said counsel never discussed that they might be used against him at a trial.
He said that he never told counsel what his desired resolution of the case was and that he
never told counsel to make a counteroffer to the ten-year offer.
Trial counsel testified that he and the Petitioner discussed “pleas” three or four
times. He recalled that he had difficulty getting the Petitioner to come to his office and
that the Petitioner’s girlfriend brought the Petitioner to counsel’s office once. Counsel said
he wanted the Petitioner to take the plea offer because counsel “didn’t think we had a case
that we needed to try.” Counsel thought that the ten-year offer had involved split
confinement, which counsel thought was generous in view of the Petitioner’s criminal
history. Counsel recalled that the Petitioner stated that he would agree to a ten-year
sentence but that he would not agree to serve jail time. Counsel said the prosecutor would
not agree to a sentence that did not involve some confinement.
Trial counsel testified that he did not recall if the State had Tennessee Bureau of
Investigation (TBI) laboratory results for all the items they sent for testing. After reviewing
the trial transcript, he stated that the “heroin pills” which were the subject of Count 1 of
the indictment were submitted for testing but were not tested. He agreed that the State
agreed to dismiss Count 1 and that he “moved to dismiss . . . but . . . did leave it open for
[the State] to try to fix the problems.” He said the charges were not dismissed at the time
but were dismissed later.
Trial counsel agreed that a State’s witness testified at the trial about the drugs found
in the Petitioner’s home, which included “ecstasy tablets.” He agreed that the witness
testified that the tablets might contain a mixture of MDMA, methamphetamine, heroin, and
fentanyl. Counsel did not think the tablets were tested for their composition and
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acknowledged that he did not object to the witness’s speculation about the tablets’
composition. He agreed that these tablets had been the subject of Count 1, the count that
was dismissed at the motion for judgment of acquittal.
Trial counsel acknowledged that the search warrant, in its entirety, was introduced
as evidence. He did not think he had objected to its introduction. He agreed that the
warrant’s affidavit contained statements made by a confidential informant about the source
of some pills for which the informant had been arrested. When asked if the informant had
testified at the Petitioner’s trial, counsel responded, “Not that I recall.” He acknowledged
that the affidavit alleged the Petitioner had conducted “multiple sales” that were not part
of the charged conduct.
Trial counsel agreed that twenty-six pages of text messages between the Petitioner
and Ms. Lee, which referenced “other agreements or deals or sales” were introduced as
trial evidence. He agreed that evidence of text messages between the Petitioner and West
Hill about a “deal” was introduced without objection. He said he did not request a limiting
instruction about evidence of other crimes. He explained that the Petitioner wanted to
testify, even though counsel did not think it was a good idea, and counsel “assumed . . .
he’d be crossed on all of it.” Counsel acknowledged that the Petitioner, ultimately, did not
testify because he did not appear for the second day of the trial.
Trial counsel testified that the Petitioner had cooperated with law enforcement at
the beginning of the case, before counsel was involved. Counsel said that the Petitioner
had tried to “broker a deal where he would work for” the State but that it had not worked
out, with the result being that “law enforcement wasn’t very happy with the whole
situation.”
Trial counsel testified that he represented the Petitioner for seven or eight months
and that they had about six to ten discussions about the case. Counsel said they met two
or three times at counsel’s office and two or three times at court appearances. Counsel said
that they discussed the facts of the case and that they discussed the plea offer “[a] lot.”
Counsel agreed that they discussed, as part of the plea discussions, the effect the
Petitioner’s prior criminal history would have had if he elected to go to trial and to testify.
Trial counsel testified that the Petitioner contacted him around 8:00 or 9:00 on the
night of the first day of the trial about having gone to the emergency room for pain.
Counsel agreed that he raised the Petitioner’s absence with the trial court the next morning.
Counsel agreed that the information in the search warrant affidavit and the text messages
“would help show the intent of [the Petitioner] in – his involvement with these narcotics
and what his intent would be to do with them.” Counsel agreed that his trial strategy “from
the start” had been based upon the Petitioner’s taking the stand. Counsel said that he had
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anticipated the Petitioner would testify that the drugs recovered from the Petitioner’s home
belonged to a woman whose name was in “some of the materials.” Counsel said he had
concerns about the viability of the Petitioner’s testimony but “that’s what I had.”
At the conclusion of the hearing, the post-conviction court found that the
Petitioner’s testimony was not credible and that trial counsel’s testimony was credible on
all factual issues. The court found that the Petitioner had not established ineffective
assistance of counsel under the standard of Strickland v. Washington. Specifically, the
judge found, “I do not believe today, that the results of the trial would have been different”
and that “there was overwhelming evidence in this matter to convict” the Petitioner. In its
written order, the court elaborated further:
In the case sub judice, the Court holds that Counsel’s conduct fell
within the wide range of professional assistance and certainly did not fall
below an objective standard of reasonableness. Further, the Court finds that
even if Trial Counsel’s performance was slightly below an objective standard
of reasonable performance, in one or more areas, the outcome of the
proceedings would not have changed.
Thus, the post-conviction court denied relief. This appeal followed.
Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2025). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2025). A post-conviction court’s findings of fact are binding
on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);
see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s
application of law to its factual findings is subject to a de novo standard of review without
a presumption of correctness. Fields, 40 S.W.3d at 457-58.
To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S.
364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to
an accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
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A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . are [not] within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may
not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a
sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference,
however, only applies “if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice
prong, a petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
I
Dismissal of Count 1
The Petitioner contends that the post-conviction court erred in denying relief on his
claim that trial counsel provided ineffective assistance by failing to move for a dismissal
of Count 1 of the indictment at the beginning of the trial. He argues that he was prejudiced
by the jury’s having heard testimony from three State’s witnesses about the unidentified
pills that were the subject of the charge in Count 1. The evidence showed that the pills
were not tested to determine their composition. The State counters that the court did not
err in denying relief on this claim because the Petitioner failed to prove that he was
prejudiced, given the court’s dismissal of Count 1 in response to the Petitioner’s motion
for judgment of acquittal. We agree with the State.
In its written order, the post-conviction court made the following relevant findings:
At the close of the proof, Trial Counsel was successful in arguing a
dismissal of Count 1. The jury was instructed that this charge had been
removed from their consideration. Further, the jury was instructed that “no
further instructions concerning this charge will be provided, and you should
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not speculate as to the reason for the removal of this charge or as to the
absence of the instructions on this charge.”
Furthermore, the evidence at the Evidentiary Hearing failed to state or
show any proof that the testimony regarding the pills in Count 1 prejudiced
[the Petitioner] and that absent testimony surrounding Count 1 could have
changed the outcome of the jury’s verdict on Counts 2-6. The proof and
testimony at trial was overwhelmingly convincing that [the Petitioner]
possessed the other controlled substances with the intent to sell or deliver.
The record reflects that the State acknowledged, at the beginning of the trial, that it
had no forensic evidence to support Count 1. Trial counsel, perhaps equivocally, moved
for a dismissal, and the trial court deferred its ruling until after the close of the State’s
proof. The jury heard evidence of the pills’ existence, which the Petitioner argues could
have allowed them to “infer that the 18 unidentified pills contained heroin based on
circumstantial proof alone.” However, the jury was instructed that Count 1 had been
dismissed and that they were not to consider the reason for the dismissal. The jury is
presumed to follow the court’s instructions. State v. Williams, 977 S.W.2d 101, 106 (Tenn.
1998). Further, as the State correctly notes, the identity of a controlled substance may be
proven by evidence other than forensic testing results. See, e.g., State v. White, 269 S.W.3d
903, 907 (Tenn. 2008).
The Petitioner argues that, because Count 1 was not dismissed at the beginning of
the trial, the jury heard so-called “other crimes” evidence, which was subject to exclusion
under Tennessee Rule of Evidence 404(b). Therefore, the Petitioner reasons, he was
unfairly prejudiced when the jury considered the question of his guilt of the remaining
counts. The weakness of the Petitioner’s argument in this regard is the overwhelming proof
of his guilt. Several drugs were found near him and inside a lockbox to which he possessed
the key. He admitted that he sold drugs with Ms. Lee and that he traveled with her to her
supplier’s home. His text messages and Facebook messages corroborated his inculpatory
statement to police.
The record does not preponderate against the post-conviction court’s findings that
trial counsel did not perform deficiently and that the Petitioner did not establish prejudice
from the alleged deficient performance. Trial counsel moved for a dismissal of Count 1 at
the beginning of the trial but acknowledged, consistent with the law, that the State might
be able to prove Count 1 despite the lack of forensic proof. The trial court declined to rule
until the close of the State’s proof. The jury heard evidence about the pills that were the
subject of Count 1, and the court ultimately granted the defense’s motion for judgment of
acquittal on Count 1. The jury was instructed to disregard Count 1 from its consideration,
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and the proof as to the remaining counts was overwhelming. The post-conviction court did
not err in denying relief on this issue.
II
Lack of Objections to Evidence
The Petitioner contends that the post-conviction court erred in denying relief on his
ineffective assistance of counsel claims related to counsel’s failure to object to the
introduction of the search warrant, with its affidavit containing factual statements about
other crimes, and to the text and Facebook messages containing other crimes evidence. He
argues that counsel should have objected on the basis that the evidence was inadmissible
under Tennessee Rules of Evidence 801, 403, and 404(b), related to exclusion for hearsay,
danger of unfair prejudice, and evidence of prior bad acts. The State responds that the
court did not err in denying relief because the Petitioner failed to prove his claims by clear
and convincing evidence. We agree with the State.
Trial counsel explained at the post-conviction hearing that his trial strategy was
premised upon the Petitioner’s desire to testify, even though counsel thought it was not a
good idea. Counsel acknowledged that the State had a strong case against the Petitioner.
Counsel knew that the Petitioner would be subject to cross-examination about his alleged
drug-related activity, including the activities which were described in the search warrant
affidavit and in the text and Facebook messages. When these evidentiary items were
admitted during the State’s case-in-chief, counsel did not object, believing that the
Petitioner was going to testify in his defense. However, the Petitioner elected not to appear
for the second day of trial, after the evidence in question had been admitted, and he was
unavailable to testify in his defense, given his absence. Moreover, the search warrant and
text and Facebook messages had already been admitted, and counsel’s opportunities to
lodge contemporaneous objections had lapsed once the Petitioner chose to absent himself
from the proceedings and forego his right to testify.
The post-conviction court found that the Petitioner failed to prove that trial
counsel’s performance was deficient and that he was prejudiced by the alleged deficient
performance. Counsel articulated a reasonable, strategic decision, based upon the
Petitioner’s desire to testify at his trial, not to object to evidence about which the Petitioner
would be subject to cross-examination. The Petitioner thwarted his own defense strategy
by failing to appear for the second day of the trial to testify, and by this point, counsel had
lost the opportunity to object to the admission of the evidence in question. No evidence
suggests that counsel could have known that the Petitioner’s attendance at the trial was in
doubt and should have formulated a different trial strategy that involved objecting to the
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admission of the evidence at the time it was offered. The record does not preponderate
against the post-conviction court’s findings regarding deficient performance.
With regard to prejudice, as we noted previously, the evidence of the Petitioner’s
guilt was overwhelming. He was found in possession of multiple drugs and drug
paraphernalia. He inculpated himself in the statement he gave the police at the scene.
Additional evidence of his drug activities, aside from those related to the present case, was
not prejudicial in the face of the State’s proof of his guilt of the present charges. In reaching
this conclusion, we have considered the Petitioner’s assertion in his reply brief that the trial
court did not give a limiting instruction as to the use of the disputed evidence. Although
the Petitioner is correct, our focus remains on the overwhelming strength of the State’s
proof, aside from this evidence.
Because the Petitioner failed to prove this claim, the post-conviction court did not
err in denying relief on this basis.
III
Failure to Request a Limiting Instruction
The Petitioner contends that the post-conviction court erred in denying relief on his
claim that trial counsel provided ineffective assistance by failing to request a limiting
instruction on prior bad act evidence. The State responds that the court did not err, and we
agree.
This claim is, again, related to the admission of the search warrant and the text and
Facebook messages, all of which contained broader evidence of the Petitioner’s drug-
related activities. The record reflects that, before giving the jury its final instructions, the
trial court listed a series of instructions and stated its intention not to give the pattern
instruction related to “[e]vidence from other crimes.” Trial counsel did not object, which
the Petitioner claims was deficient performance.
Regarding the limiting instruction that the Petitioner alleged trial counsel should
have requested, the post-conviction court found that the other crimes evidence was
probative of the Petitioner’s intent in possessing the drugs. The court found that trial
counsel’s strategy “was completely gutted whenever [the Petitioner] chose not to come
back for day two [of the trial]. That left [counsel] hampered and left him unable to move
forward with his strategy to rebut any of those text messages and/or rebut the affidavit in
support of the search warrant by his client not showing up.”
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We acknowledge that, in the wake of the Petitioner’s decision to abandon the second
day of his trial and to forego his opportunity to testify in his defense, trial counsel could
have requested a limiting instruction as to the evidence of the Petitioner’s other bad acts,
given that the Petitioner was not present to testify in accord with the original trial strategy.
However, the post-conviction court found that the Petitioner was not prejudiced, and the
record does not preponderate against its determination. The proof of the Petitioner’s guilt
of the charged offenses was overwhelming. Additional proof of his other drug-related
activities was inconsequential to the State’s evidence of his guilt. The post-conviction
court did not err in denying relief on this basis.
In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.
s/Robert H. Montgomery, Jr.
ROBERT H. MONTGOMERY, JR., JUDGE
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