# State of Tennessee v. Jeremy Sims and Sherry Brookshire

> Court of Criminal Appeals of Tennessee · September 25, 2015

URL: https://www.frixlaw.com/law-library/cases/3004852

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** September 25, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge James Curwood Witt, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 14, 2015 Session

STATE OF TENNESSEE v. JEREMY SIMS AND SHERRY BROOKSHIRE

Appeal from the Criminal Court for Shelby County
No. 11-06350 James C. Beasley, Jr., Judge

No. W2013-01253-CCA-R3-CD - Filed September 25, 2015

The defendants, Jeremy Sims and Sherry Brookshire, appeal their Shelby County
Criminal Court jury convictions of kidnapping and aggravated robbery. Defendant Sims
claims that the trial court abused its discretion by denying his motion for severance, the
trial court erred by admitting certain witness testimony, the evidence was insufficient to
sustain his conviction of aggravated robbery, the trial court erred by giving certain
instructions to and communicating ex parte with the jury, the trial court erred by denying
his post-trial motion for a mistrial and severance of defendants on the basis of Defendant
Brookshire‟s incompetence to stand trial, and the cumulative effect of these errors
prevented him from receiving a fair trial. Defendant Brookshire also challenges the trial
court‟s denial of the motion to sever, the admission of certain evidence, the sufficiency of
the evidence pertaining to the conviction of aggravated robbery, the trial court‟s
instructions to the jury, and the trial court‟s finding that she was competent to stand trial.
Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, J., joined. THOMAS T. WOODALL, P.J., filed a separate concurring
opinion.

Neil Umsted (on appeal and at trial), and Justin Gee (at trial), Memphis, Tennessee, for
the appellant, Jeremy Sims.

Vicki M. Carriker (on appeal), Memphis, Tennessee; and Lawrence Russell White and
Brooke Hyman (at trial), Assistant District Public Defenders, for the appellant, Sherry
Brookshire.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pamela Fleming and
Kate Edmands, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

In October 2011, the Shelby County Criminal Court grand jury charged the
defendants with the especially aggravated kidnapping and aggravated robbery of David
Mays. The trial court conducted a jury trial in February 2013.

The State‟s proof at trial showed that David Mays1 had allowed Defendant
Sims to live in a spare room in his residence in exchange for Defendant Sims‟s
performing home repairs for Mr. Mays. Although Defendant Sims had lived with Mr.
Mays “off and on” for approximately two years, Defendant Sims had moved out by April
2011.

On April 4, 2011, Mr. Mays was awakened in the night by the voices of
Defendant Sims “and a female” and “feet on the steps coming up the stairway.” Mr.
Mays immediately called 9-1-1 and did not leave his bedroom “until the police arrived.”
While inspecting the house with police officers, Mr. Mays noticed that a window in his
downstairs study had been broken and that a walrus tusk that had been displayed on the
table in front of the window was missing. Mr. Mays estimated the walrus tusk to be
approximately 24 inches long and “not quite as heavy as a baseball bat.” Mr. Mays then
located the walrus tusk upstairs; it had been moved to a piano bench just outside Mr.
Mays‟s bedroom. Concerned about the break-in, Mr. Mays hid his wallet, checkbook,
and car keys inside a chest of drawers and covered the broken window until he “had a
chance to repair” it.

In the early morning hours of April 7, Mr. Mays was again awakened by a
noise in his home. Mr. Mays got out of bed, and as he was retrieving his cellular
telephone to call 9-1-1, he encountered Defendant Sims. Defendant Sims grabbed the
telephone out of Mr. Mays‟s hand and, using the handcuffs from the table by Mr. Mays‟s
bed, Defendant Sims handcuffed Mr. Mays‟s hands behind his back.2 Defendant Sims
demanded to know the location of Mr. Mays‟s money. About this time, Defendant
Brookshire appeared and joined in Defendant Sims‟s demand for money. Defendant
Sims began rifling through Mr. Mays‟s chest of drawers while, a few feet away,
Defendant Brookshire began beating Mr. Mays with the walrus tusk, striking him in the
head, the ribs, and the legs. At some point, Mr. Mays felt four hands grab him and pull
1
Based on the later testimony at trial of Defendant Sims, it appears that Mr. Mays‟s middle name
is Bruce.
2
Mr. Mays was employed by the Hardeman County Correctional Facility.
-2-
him into the bedroom closet, and the defendants placed a sweatshirt over Mr. Mays‟s
head. The defendants continued to demand to know the location of Mr. Mays‟s money.
Fearing that the defendants would beat him to death, Mr. Mays eventually told them that
if they would take him out of the closet, he would give them the money.

The defendants then removed the handcuffs, and Mr. Mays retrieved his
wallet from the chest of drawers. Mr. Mays attempted to hand the defendants only the
cash from his wallet, but Defendant Sims insisted on taking the wallet, checkbook, car
keys, and cellular telephone as well. The defendants then informed Mr. Mays that they
would release him if he “would write a note or something to the effect that [he had]
propositioned [Defendant Sims] for sex,” and Mr. Mays complied. 3 The defendants then
fled from the residence in Mr. Mays‟s white Jaguar sedan.

Mr. Mays waited a few minutes and then ran to his neighbors‟ house to call
9-1-1. Through Mr. Mays‟s testimony, the State introduced into evidence multiple
photographs, including ones depicting the injuries to Mr. Mays‟s leg and head. The State
also introduced into evidence the photographic line-up that Mr. Mays viewed on April 7,
2011, and on which he had circled Defendant Sims‟s photograph and written, “This is the
man who broke into my house. He beat and robbed me. He stole my cell phone,
checkbook and car.”

On cross-examination, Mr. Mays acknowledged that Defendant Sims
attempted to intervene during his beating at the hands of Defendant Brookshire, although
Mr. Mays clarified that Defendant Brookshire had struck him “several times” before
Defendant Sims asked her to stop. With respect to Defendant Brookshire, Mr. Mays
stated that he thought he had only met her once prior to the home invasion and that he
only knew her first name. Mr. Mays conceded that he was unable to identify Defendant
Brookshire from a photographic lineup. Mr. Mays denied having any narcotics in the
house, but he did acknowledge having engaged in sexual intercourse with Defendant
Sims on one occasion while Defendant Sims was residing in his house.

Memphis Police Department (“MPD”) Officer Demar Wells with the crime
scene investigation unit testified that he responded to a call of a burglary and assault at
Mr. Mays‟s residence. Based on his investigation, Officer Wells attempted to locate the
walrus tusk that had allegedly been used to assault Mr. Mays, but he was unable to find it.
Through Officer Wells‟s testimony, the State introduced into evidence a photograph
depicting a knife and a blue knit cap located outside of Mr. Mays‟s residence near the
broken window.

3
During his direct examination, Mr. Mays confirmed that he was homosexual.
-3-
MPD Officer Malcolm Smith testified that, following the call of the home
invasion on April 7, he received information that the suspects were “Jeremy Sims” and a
woman who had a street name of “Shay.” After learning where the two lived, Officer
Smith set up surveillance and located Defendant Sims on April 8. Officer Smith testified
that Defendant Sims fled from police officers and hid underneath a house, forcing
officers to crawl under the house to apprehend him. Officer Smith located Defendant
Brookshire a short time later. Although Defendant Brookshire initially gave Officer
Smith a false name, she eventually admitted that her first name was Sherry. When
Officer Smith asked Defendant Brookshire if she knew why he was there, Defendant
Brookshire responded “that the car was in the 900 block of James Street.” Officer Smith
placed Defendant Brookshire under arrest, and other officers located Mr. Mays‟s missing
Jaguar in the 900 block of James Street.

MPD Officer Richard Hillyard testified that he arrived at a residence at
2645 Whitman after officers had received consent to search the premises. At the
residence, officers located a cellular telephone and two sets of keys.

MPD Sergeant John Simpson testified that he was the case officer assigned
to Mr. Mays‟s case and that it took Mr. Mays “[s]econds” to identify Defendant Sims in
the photographic lineup. After Defendant Sims was arrested, Sergeant Simpson provided
him with Miranda warnings. Defendant Sims signed a waiver of his rights and
proceeded to give a written confession to Sergeant Simpson, in which Defendant Sims
stated, in part, as follows4:

Walked to his house on Trezevant, I had a key and I know the
alarm code because I used to live there, then I went upstairs
and he was sleeping and I told him to give me some money.
He told me he was not going to give me any money and I told
him that he was that I needed some money. He grabbed his
phone and I grabbed his arm and put it behind his back and
handcuffed him. I started to look in the bathroom for money.
I came back in there and he was hollering my name so I
commenced to looking some more. Then I came back in he
was hollering for me and told me that he would give me some
money if I took the shirt off his head. So I took the shirt and
handcuffs off. So, I went to the bathroom and looked under
the sink in the vanity and in the closet and did not find
anything. I came back in there and he told me he would give
me the money if I would just leave. He told me that he would
4
The version of Defendant Sims‟s statement admitted during the State‟s case in chief was redacted
prior to trial to remove references implicating Defendant Brookshire in the offenses.
-4-
write me something that he gave me the money if I would just
leave. He wrote me a note to me that he gave me the money
voluntarily and that he tried to proposition me and signed it.
He took me to a drawer in his bedroom and gave me some
money and the keys and asked me not to take his phone. I
took the phone anyway and I told him that I would bring it all
back to him. I locked the door behind me, took the car to
some side street off Bellevue.

In response to Sergeant Simpson‟s query of why he participated in the robbery,
Defendant Sims responded that he “wanted some money for drugs and to eat.”

When Sergeant Simpson finished taking Defendant Sims‟s statement, he
interviewed Defendant Brookshire. Sergeant Simpson provided Defendant Brookshire
with her Miranda warnings, and Defendant Brookshire executed a written waiver of her
rights, after which she gave a written statement. In response to Sergeant Simpson‟s
question of whether she had participated in the robbery of Mr. Mays, Defendant
Brookshire responded that she had not, stating that she “crawled through the window
when [she] heard yelling to see what was happening.” Defendant Brookshire admitted
taking medication from Mr. Mays‟s house, stating that “[i]t was Adderall and some
Clomopins.” She described the events surrounding the home invasion as follows:

I was standing outside for about five minutes and I crawled
through the window and went upstairs. I saw some pills and I
took them, I was not thinking about anything else. I had what
I wanted and got into Bruce‟s car[,] left[,] and I don‟t know
where because I was drinking and taking pills and I don‟t
remember where. I remember waking up the next morning at
some dude‟s house.

On cross-examination, Sergeant Simpson admitted that, although
Defendant Sims stated that he saw Mr. Mays in the closet, Defendant Sims never stated
that he placed Mr. Mays in the closet. Sergeant Simpson also conceded that Defendant
Sims mentioned that he had seen the walrus tusk but that Defendant Sims neither stated
that he used the walrus tusk in any way, nor admitted to placing a shirt over Mr. Mays‟s
head. Sergeant Simpson acknowledged that he waited one day to conduct the interview
of Defendant Brookshire because at the time of her arrest she “was intoxicated and high
on drugs.”

-5-
With this evidence, the State rested. Following the trial court‟s denial of
both defendants‟ motions for judgments of acquittal and Momon colloquies, both
defendants elected to testify.

Defendant Sims admitted that, in 2008, he had pleaded guilty to four counts
of theft of property valued at $500 or less and that, in 2010, he had pleaded guilty to two
counts of theft of property valued at $1,000 or more but less than $10,000 and one count
of burglary. Defendant Sims testified that, “around 2009,” he was introduced to Mr.
Mays through a mutual friend who thought Defendant Sims might be interested in
performing some house repairs for Mr. Mays. Because Mr. Mays had a room available at
his residence, he permitted Defendant Sims to move into his house.

While Defendant Sims was living with Mr. Mays, Defendant Sims met
Defendant Brookshire, and, at some point in time, Defendant Sims became involved in a
sexual relationship with Defendant Brookshire. Defendant Sims confirmed that
Defendant Brookshire had visited him at Mr. Mays‟s house on prior occasions, and he
estimated that Defendant Brookshire had met Mr. Mays on at least two occasions.

Defendant Sims denied that he was homosexual but admitted that Mr. Mays
had once performed fellatio on him while Defendant Sims was intoxicated and that
Defendant Sims had attempted to engage in sexual intercourse with Mr. Mays but that he
“could not perform.” Defendant Sims stated that Mr. Mays would “openly flirt” with him
on a daily basis while he lived with Mr. Mays and that, when Mr. Mays once flirted with
him in front of others, Defendant Sims told him to stop. Defendant Sims explained that
he stayed because he had nowhere else to go and because Mr. Mays funded a lifestyle for
Defendant Sims that he had never previously known.

Defendant Sims testified that, while living with Mr. Mays, he installed
sheetrock, prepared a slate floor, painted the exterior, caulked and repaired windows, ran
water lines, installed an exterior gazebo, and measured and prepared for the installation
of new cabinets. Defendant Sims explained that his agreement with Mr. Mays “was that I
would live there [and] would not need for money or nothing and that he would also
compensate me with money.”

At some point, Mr. Mays stopped paying Defendant Sims. According to
Defendant Sims, Mr. Mays consumed alcohol and took medication every day, which
would affect his memory. Defendant Sims recalled that Mr. Mays took, among other
things, Adderall and Klonopin. A few months prior to the home invasion, Defendant
Sims moved out. Because he had nowhere to go, he and Defendant Brookshire were
homeless. Defendant Sims admitted that he was addicted to “[c]ocaine, crack, pills, [and]
alcohol” during this time.
-6-
Defendant Sims conceded that, sometime prior to April 4, 2011, he had
used a steak knife to remove the caulk around a window in Mr. Mays‟s residence and to
cut the piece of wood that connected two panes of glass. Defendant Sims entered Mr.
Mays‟s house through the broken window. After disarming the security system,
Defendant Sims opened a side door to allow Defendant Brookshire to enter the house.
Defendant Sims denied seeing Defendant Brookshire holding a walrus tusk that night.
On that occasion, Defendant Sims stole a 54-inch television from the residence.

In the early morning hours of April 7, Defendant Sims and Defendant
Brookshire walked to Mr. Mays‟s residence. When they arrived, Defendant Sims
instructed Defendant Brookshire to wait outside. He entered through the broken window
and slowly made his way upstairs to Mr. Mays‟s room. As soon as he entered the room,
Defendant Sims heard a noise at the bottom of the stairs, which awakened Mr. Mays.
Defendant Sims grabbed Mr. Mays‟s arm when Mr. Mays picked up his telephone, and
Defendant Sims began to demand money. Suddenly, Defendant Sims noticed Defendant
Brookshire standing nearby. Defendant Sims instructed Defendant Brookshire to hold
Mr. Mays‟s arm, and Defendant Sims handcuffed Mr. Mays‟s hands behind his back.
Defendant Sims rummaged through the dresser drawers searching for money and then
entered the adjacent bathroom, where he grabbed pill bottles containing Adderall and
Klonopin. When he reentered Mr. Mays‟s bedroom, he saw Defendant Brookshire strike
Mr. Mays on the leg with the walrus tusk and heard Mr. Mays yelling for him. Defendant
Brookshire was calling Mr. Mays a “[p]unk m***** f*****” and “[f]a***t.” Defendant
Sims “immediately grabbed the tusk from her” and placed it along with the pill bottles on
Mr. Mays‟s dresser.

Defendant Sims demanded to know why Defendant Brookshire had struck
Mr. Mays, stating, “He‟s handcuffed. He‟s old.” Defendant Sims recalled that
Defendant Brookshire appeared to be hurt and looked at Defendant Sims “like [he was]
doing something wrong.” Defendant Sims saw Defendant Brookshire stand near the pill
bottles while he walked downstairs to search for money. As he started back upstairs,
Defendant Sims heard Mr. Mays “hollering my name but it sounded like he was far
away.” When Defendant Sims entered the bedroom, he saw Defendant Brookshire taking
pills from the pill bottles, and he noticed two chairs were propped against the closet door.
Defendant Sims “freaked out,” pushed the chairs away, and opened the closet door.
Defendant Sims removed the handcuffs and the shirt that was covering Mr. Mays‟s face.
Mr. Mays told Defendant Sims that he would give him the money if he would “just get
the „F‟ out of here and take that crazy b**** with” him.

Mr. Mays then retrieved a box from the dresser which contained his wallet,
keys, and checkbook. Defendant Sims took the box and demanded that Mr. Mays write a
-7-
letter “saying that he gave me the money and that he propositioned me.” Defendant Sims
was unsure of the exact amount, but he estimated that he got at least $100 in cash from
Mr. Mays. Defendant Sims conceded that any amount over $100 went to Defendant
Brookshire. Defendant Sims ran downstairs behind Defendant Brookshire. Defendant
Sims “guess[ed]” that Defendant Brookshire crawled through the window, and Defendant
Sims exited through the front door, locking it behind him. Defendant Brookshire
suddenly appeared and jumped into Mr. Mays‟s car with Defendant Sims.

Defendant Sims testified that he intended to return the car after he
purchased “some crack” but that when he returned, he saw lights from police cars and
decided to “ditch” the car. Defendant Sims did not recall where he left the vehicle. He
stated that Defendant Brookshire directed him to a street with which he was unfamiliar.

Defendant Sims denied placing Mr. Mays inside the closet and denied
knowing that Defendant Brookshire intended to hit Mr. Mays with the walrus tusk.
Defendant Sims testified that the plan was “to go in and get some money from” Mr. Mays
so that Defendant Sims could “get some alcohol out [of] the bar and get some pills.”
Defendant Sims testified that he “would never hurt [Mr. Mays] or actually allow him to
be hurt if [he] could stop it.”

Following a hearing out of the presence of the jury, the trial court allowed
Defendant Sims to introduce the entire, unredacted statement that he provided to Sergeant
Simpson prior to trial. That statement, which inculpated Defendant Brookshire in the use
of the walrus tusk to beat Mr. Mays, was substantially the same as the defendant‟s
testimony at trial.

Defendant Brookshire testified that on the evening of April 6, Defendant
Sims insisted that she accompany him to Mr. Mays‟s house. Defendant Brookshire did
not want to go. Eventually, Defendant Sims convinced her to go to the liquor store with
him, and, while en route, Defendant Sims told Defendant Brookshire that they would stop
by Mr. Mays‟s residence to “get some money” which Defendant Sims would use to
purchase drugs for Defendant Brookshire. Defendant Brookshire agreed.

When they arrived at Mr. Mays‟s house, Defendant Sims entered through a
window and instructed Defendant Brookshire to wait for him. Defendant Brookshire
intended to leave, but she heard Mr. Mays yelling and entered the house through the
broken window. She ran upstairs and found Mr. Mays sitting on the bed with his hands
cuffed behind his back. Defendant Brookshire told Defendant Sims to remove the
handcuffs, and Defendant Sims told her to search for the key while he smoked “a crack
pipe.” While attempting to assist Mr. Mays in lying down on the floor, she slipped, and
Mr. Mays hit his head on the dresser. Defendant Brookshire found and ingested some of
-8-
Mr. Mays‟s pills, and Defendant Sims ordered her to leave. As Defendant Brookshire
was leaving, Defendant Sims yelled for her to come back. Defendant Brookshire picked
up the walrus tusk – which she insisted was “heavier than a damn baseball bat” – from a
table outside Mr. Mays‟s bedroom, intending to hit Defendant Sims with it. When she
entered the bedroom, she tripped and dropped the tusk on Mr. Mays‟s leg. Defendant
Brookshire apologized to Mr. Mays and asked if he was alright.

Defendant Sims demanded that Mr. Mays write a letter stating that he had
propositioned Defendant Sims for sex. After Mr. Mays wrote the letter, Defendant Sims
ordered Mr. Mays into the closet and told him to stay there until Defendant Sims and
Defendant Brookshire had left. As Defendant Brookshire was helping Mr. Mays sit
down in the closet, Mr. Mays hit his head, and a shirt from the closet fell on top of Mr.
Mays‟s head. As the defendants fled from the house, Defendant Sims demanded that
Defendant Brookshire take the walrus tusk with her. The two then drove away in Mr.
Mays‟s vehicle.

Defendant Brookshire denied receiving anything from the robbery other
than pills. Defendant Brookshire admitted that, in 2012, she had been convicted of two
counts of felony forgery; that she was convicted of fraudulent use of a credit card in
2006; that she was convicted of domestic assault in 2005; and that she was twice
convicted of assault in 2004 arising out of two separate incidents.

Based on this evidence, the jury convicted both defendants of the charged
offense of aggravated robbery and the lesser included offense of kidnapping. Following a
sentencing hearing, the trial court sentenced Defendant Sims as a standard offender to a
term of four years‟ incarceration to be served at 30 percent for the kidnapping conviction
and to be served concurrently with the term of 11 years to be served at 85 percent that the
court imposed for the aggravated robbery conviction, for a total effective sentence of 11
years. With respect to Defendant Brookshire, the trial court imposed a sentence of four
years as a standard offender for the kidnapping conviction, to be served concurrently with
the sentence of nine years at 85 percent service the court imposed for the aggravated
robbery conviction, for a total effective sentence of nine years.

Following the denial of their timely motions for new trial, both defendants
filed timely notices of appeal. In this appeal, Defendant Sims argues that the trial court
abused its discretion by denying his severance motion, that the trial court erred by
permitting Defendant Brookshire to cross-examine Mr. Mays about his sexual
relationship with Defendant Sims, that the evidence was insufficient to sustain his
conviction of aggravated robbery, that the trial court erred by giving certain instructions
to and communicating ex parte with the jury, that the trial court erred by denying his
post-trial motions for mistrial and severance on the basis of Defendant Brookshire‟s
-9-
incompetence, and that the cumulative effect of these errors prevented him from
receiving a fair trial. Defendant Brookshire contends that the trial court erred by denying
“trial counsel‟s” motion for severance, that the trial court erred by permitting the State to
question her about her prior convictions of assault, that the evidence was insufficient to
sustain her conviction of aggravated robbery, that the trial court erred in its instructions to
the jury, and that the trial court erred by finding her competent to stand trial. We will
consider each claim in turn.

I. Severance

Defendant Sims first contends that the trial court abused its discretion by
denying his pretrial severance motion. Despite that his pretrial motion mentioned only
the admission of the redacted statement of Defendant Brookshire, Defendant Sims
claimed during trial, and reiterates on appeal, that the redactions to his confession altered
the substance of his statement by removing substantially exculpatory information, which,
in turn, prevented a fair determination of his guilt or innocence.

Defendant Brookshire also argues that the trial court erred by denying “trial
counsel‟s” severance motion. However, a review of the record reveals that the first time
Defendant Brookshire raised the issue of severance was in her motion for new trial. As
such, she has waived our consideration of this issue for failure to timely raise it. See
Tenn. R. Crim. P. 14(a)(1)(A).

“The grant or denial of a motion for severance of defendants is a matter that
rests within the sound discretion of the trial court, and [the reviewing court] will not
disturb the trial court‟s ruling absent clear abuse of that discretion.” State v. Dotson, 254
S.W.3d 378, 390 (Tenn. 2008) (citing Hunter v. State, 440 S.W.2d 1, 6 (Tenn. 1969);
State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988)). “The test is whether or
not the defendant was clearly prejudiced in his defense by being jointly tried with his co-
defendant.” State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000) (citing State
v. Wiseman, 643 S.W.2d 354 (Tenn. Crim. App. 1982)); see also Dotson, 254 S.W.3d at
390 (“The test to be applied . . . in determining whether the trial court abused its
discretion is whether the [d]efendant was „clearly prejudiced.‟” (quoting Hunter, 440
S.W.2d at 6)). “The record must demonstrate that „the defendant was clearly prejudiced
to the point that the trial court‟s discretion ended and the granting of [a] severance
became a judicial duty‟ before an accused is entitled to a reversal of his conviction.”
Burton, 751 S.W.2d at 447 (quoting Hunter, 440 S.W.2d at 6); see also State v. Price, 46
S.W.3d 785, 803 (Tenn. Crim. App. 2000).

Rule 8 of the Tennessee Rules of Criminal Procedure provides that “[a]n
indictment, presentment, or information may charge two or more defendants . . . if each
- 10 -
of the defendants is charged with accountability for each offense included.” Tenn. R.
Crim. P. 8(c)(1). If the defendant‟s motion for severance is based upon a co-defendant‟s
out-of-court statement which “makes reference to the defendant but is not admissible
against the defendant,” the trial court must first determine if the State plans to offer the
statement into evidence at trial. Tenn. R. Crim. P. 14(c)(1). If the State does so intend, it
must choose one of the following:

(A) a joint trial at which the statement is not admitted in
evidence or at which, if admitted, the statement would not
constitute error;

(B) a joint trial at which the statement is admitted in evidence
only after all references to the moving defendant have been
deleted and if the redacted confession will not prejudice the
moving defendant; or

(C) severance of the moving defendant.

Id. A defendant may also seek severance on the basis that it is necessary “to promote a
fair determination of the guilt or innocence of one or more defendants.” Tenn. R. Crim.
P. 14(c)(2)(A).

The provisions of Rule 14(c)(1)(B) can be at odds with the completeness
rule, which provides that, if the State introduces into evidence only a portion of the
defendant‟s confession at trial, the defendant “is normally entitled to prove the whole of
what was said in order for the jury to be able to weigh the whole statement” unless the
confession “involv[es] a non-testifying co-defendant.” Denton v. State, 945 S.W.2d 793,
801 (Tenn. Crim. App. 1996) (citing Curry v. State, 397 S.W.2d 179 (Tenn. 1965); State
v. Brett Patterson, No. 88-245-III (Tenn. Crim. App, Nashville, Dec. 8, 1989), perm. app.
denied (Tenn. Mar. 5, 1990)). “To hold otherwise would be to render impossible the use
of a redacted statement in joint trials involving a Bruton situation.” Denton, 945 S.W.2d
at 801. In Bruton v. United States, the Supreme Court held that admission of a statement
of a non-testifying co-defendant which incriminates the complaining defendant violates
the complaining defendant‟s constitutional right of confrontation. Bruton v. United
States, 391 U.S. 123, 126 (1968); see U.S. Const. amend. VI; Tenn. Const. art. 1, § 9;
Smart v. State, 544 S.W.2d 109, 111-12 (Tenn. Crim. App. 1976). The use of a redacted
statement is acceptable, provided the redaction does not alter the substance of the
statement or remove information that is substantially excuplatory. Denton, 945 S.W.2d at
801-02; see also Tenn. R. Crim. P. 14(c)(1)(B).

- 11 -
In the instant case, Defendant Sims filed a pre-trial motion for severance on
the bases of (1) the use of Defendant Brookshire‟s out-of-court statement, see Tenn. R.
Crim. P. 14(c)(1), and (2) prejudice to a fair determination of his guilt or innocence
occasioned by the presentation of mutually antagonistic defenses, see Tenn. R. Crim. P.
14(c)(2). Following a brief hearing, the trial court denied the motion, finding that the
State “does not intend to use the statements of the defendants” and that mutually
antagonistic defenses “is [not a] sufficient ground[] for” severance.

At trial, however, the State sought to question Sergeant Simpson about the
content of the defendants‟ statements. Concerned that this process would result in
piecemeal introduction of the statements, the trial court, following a lengthy hearing
outside the presence of the jury, determined that the best course of action would be for
the State to introduce into evidence the statements of both defendants, provided that the
statements were redacted to remove any reference to the other defendant to satisfy the
requirements of Tennesee Rule of Criminal Procedure 14(c)(1)(B). Defendant Sims
objected to the introduction into evidence of his own readacted out-of-court statement,
claiming that the redaction altered the context of his statement to such a degree that he
would be forced to testify in order to properly explain the discrepancies. The trial court
disagreed and permitted the State to introduce into evidence, through the testimony of
Sergeant Simpson, the defendants‟ redacted statements.

Defendant Sims later chose to testify and, during his direct examination,
sought to admit into evidence his full, unredacted statement. The State objected to the
admission of the statement on the basis of hearsay. Following a hearing outside of the
jury‟s presence, the trial court ruled as follows:

All right. My gut instinct is to allow it. Obviously I
recognize argument that‟s made routinely that a defendant
can‟t introduce his own self-serving statement that it‟s
hearsay unless it‟s introduced by a party opponent. I‟m
recognizing all of those but my concern is that the defendant
is now here. He‟s testifying. He‟s available for cross-
examination. [Bruton] no longer is an issue. We have issues
regarding the rule of completeness. I have previously ruled
obviously it does not trump [Bruton] but now [Bruton] is not
a problem.

So for a number of reasons I‟m of the opinion that it‟s
admissible. For the record I have conferred with the author of
the TENNESSEE CRIMINAL TRIAL PRACTICE procedure
in reference to Judge Ward‟s treatise on trial procedure,
- 12 -
criminal procedure, I‟m looking at Section 23.6 – actually
Page 719 and his comments, “Defendant cannot introduce his
own self-serving exculpatory statements made prior to trial
unless the defendant testifies and is available for cross-
examination,” and there is a list of cases, numerous cases, that
deal with that issue.

And again the biggest obstacle as far as I‟m concerned
to overcome is the fact that [Defendant] Sims is available for
cross-examination and at that point I don‟t believe that this
issue becomes an issue and therefore I‟m going to allow it if
[Defendant Sims‟s trial counsel] is asking to move his
original statement into evidence. The unredacted version I
think is permissible as a prior consistent statement if that‟s
the status it‟s in but also that I think the defendant has a right
to put on that proof and I‟m not going to interfere with the
defendant‟s right to put on proof. Under these circumstances
I think it‟s permissible so I will allow it.

Defendant Sims‟s statement reads, in relevant part, as follows, with the
redacted portions bracketed and in italics:

[Me and Sherry were talking about getting some money and I
told her we could go to Bruce’s house and get some money.
We] walked to his house on Trezevant, I had a key and I
know the alarm code because I used to live there, then I went
upstairs and he was sleeping and I told him to give me some
money. He told me he was not going to give me any money
and I told him that he was that I needed some money. He
grabbed his phone and I grabbed his arm and put it behind his
back[. That is when she came in] and [then we] handcuffed
him [and she told him to get down on the floor.] I started to
look in the bathroom for money. I came back in there and [I
saw her hit him in the leg with that thing and I told her not to
hit him again.] He was hollering my name, so I commenced
to looking some more. Then I came back in and [she done
put a shirt over his face and she had him in the closet.] He
was hollering for me and told me that he would give me some
money if I would take the shirt off his head. So I took the
shirt and handcuffs off. [She started talking about not taking
the handcuffs off.] So I went to the bathroom and looked
- 13 -
under the sink in the vanity and in the closet and did not find
anything. I came back in there and he told me he would give
me the money if I would just leave. He told me that he would
write me something that he gave me the money if I would just
leave. He wrote me a note to me that he gave me the money
voluntarily and that he tried to proposition me and signed it.
He took me to a drawer in his bedroom and gave me some
money and the keys and asked me not to take his phone. I
took the phone anyway and I told him that I would bring it all
back to him. [So we left and] I locked the door behind me.
[We] took the car to some side street off Bellevue. [She had
called somebody and they met us there. He took us back over
to Whitman.]

....

I did not mean for it to happen like this. [I did not mean for
her to hit him like that,] he is an old guy. I am sorry [for what
we did.]

In this appeal, Defendant Sims contends that because the redactions
distorted his statement and removed exculpatory information that would have supported
his defense, the trial court should have granted his motion for severance. Defendant Sims
relies on Bruton and Denton for the proposition that redacted statements are inadmissible
if the redactions alter the statement‟s substance or removes substantially exculpatory
information. See Bruton, 391 U.S. at 126; Denton, 945 S.W.2d at 801-02.

Defendant Sims‟s reliance on these cases to support his position is
misplaced. Bruton, Denton, and Rule of Criminal Proceudre 14(c)(1) are not designed to
protect the defendant from redaction of his own statement implicating a co-defendant but
rather from the inculpatory statement of a co-defendant through the redaction of the “out-
of-court statement of a co-defendant” who “makes reference to the defendant.” Tenn. R.
Crim. P. 14(c)(1). Defendant Sims, however, is not complaining about the admission of
Defendant Brookshire‟s statement, in which she inculpated Defendant Sims in the crimes
at issue; he is complaining that the redaction of his statement removed references to
Defendant Brookshire‟s role in the crimes. Subsection (B) of Rule 14(c)(1) makes it
clear that severance can be avoided if all references to the “moving defendant,” i.e.,
Defendant Sims, are deleted from the statement of the co-defendant, i.e., Defendant
Brookshire, and the redacted confession “will not prejudice the moving defendant.” Id.
To the extent that Defendant Sims appeals the denial of his severance motion on the basis
of the admission of his own redacted out-of-court statement, we find no abuse of
- 14 -
discretion in such denial because his erroneous reliance on Rule 14(c)(1) avails him
nothing.

Moreover, Defendant Sims‟s assignment of error on the basis that the
admission of the redacted statement forced him to testify in order to introduce the
complete, unredacted version is inapt. Defendant Sims‟s statement was unquestionably
inadmissible hearsay, see Tenn. R. Evid. 801, 802, subject to no exception, see Tenn. R.
Evid. 803. Although the State would have been able to introduce the statement into
evidence as an admission by a party-opponent pursuant to Tennessee Rule of Evidence
803(1.2)(A), no exception to the hearsay rule permitted Defendant Sims himself to
introduce the statement into evidence. Although the trial court ruled that the statement
was admissible as a prior consistent statement, prior consistent statements are
inadmissible as corroborative evidence of the witness‟s testimony unless there has been
an impeaching attack on the witness‟s testimony. State v. Meeks, 867 S.W.2d 361, 374
(Tenn. Crim. App. 1993). Because the statement was admitted into evidence during
Defendant Sims‟s direct examination, no opportunity for impeachment had arisen, and, as
such, it could not qualify as a prior consistent statement. Any error attendant to its
admission, however, is harmless because admission of the statement in its entirety
actually benefitted Defendant Sims.

At any rate, even if Defendant Sims‟s entire, unredacted statement had not
been admitted into evidence, the redacted portions of his statement were not substantial
enough to justify severance to prevent a fair determination of his guilt or innocence
pursuant to Tennessee Rule of Criminal Procedure 14(c)(2)(A). Because, as will be
addressed more fully herein, Defendant Sims was criminally responsible for the actions
of Defendant Brookshire, the fact that references to her involvement were redacted from
his statement does nothing to lessen his cuplability.

Because Defendant Sims has failed to show he was clearly prejudiced by
being jointly tried with Defendant Brookshire, we find no abuse of discretion in the trial
court‟s decision to deny the motion for severance.

II. Evidentiary Issues

A. Defendant Sims

Defendant Sims next contends that the trial court erred when it allowed
Defendant Brookshire to cross-examine Mr. Mays regarding his homosexual relationship
with Defendant Sims, asserting that the testimony was irrelevant and unfairly prejudicial.

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Prior to trial, the trial court issued the following ruling with respect to
Defendant Brookshire‟s cross-examination of Mr. Mays:

[Defendant] Brookshire has a right to defend herself and if
she‟s going to be tried with [Defendant] Sims as a
codefendant, she has a right to attack the credibility of the
victim. And it goes to bias or prejudice. Obviously, it‟s a
relationship – I assume from all of what you‟re telling me a
relationship between the victim and a codefendant. And if
we‟re going to try both defendants together, whether one
chooses not to attack the credibility of the victim or not, the
other one has a right to.

And if that goes to this very relationship, then it‟s
relevant.

At trial, Defendant Brookshire asked Mr. Mays if he had a prior sexual
relationship with Defendant Sims, and Mr. Mays responded, “Not really, we did have sex
one time.” On redirect examination, Mr. Mays clarified that Defendant Sims had
initiated their singular sexual encounter, but Mr. Mays acknowledged that he had
“previously attempted to initiate sexual encounters” by “[k]ind of flirting around.”

The propriety, scope, manner, and control of cross-examination rests within
the sound discretion of the trial court. See State v. Hutchison, 898 S.W.2d 161, 172
(Tenn. 1994); State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim. App. 1994). Absent a
clear abuse of discretion that results in manifest prejudice to the accused, this court will
not interfere with the trial court‟s exercise of its discretion on matters pertaining to the
examination of witnesses. State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App.
1984). In addition, “[a] witness may be cross-examined on any matter relevant to any
issue in the case, including credibility.” Tenn. R. Evid. 611(b). Furthermore, “[a] party
may offer evidence by cross-examination, extrinsic evidence, or both, that a witness is
biased in favor of or prejudiced against a party or another witness.” Tenn. R. Evid. 616.

We see no abuse of discretion in the trial court‟s decision to permit this line
of cross-examination. That Mr. Mays had a prior relationship with Defendant Sims was
certainly relevant to show either bias or prejudice pursuant to Rule of Evidence 616, and
the relationship was further relevant to the issue of Mr. Mays‟s credibility as a witness,
per Rule of Evidence 611(b). As such, we will not interfere with the trial court‟s exercise
of this discretion.

- 16 -
B. Defendant Brookshire

Defendant Brookshire argues that the trial court erred by allowing the State
to cross-examine her about her prior assault convictions, contending that the convictions
were admitted to show propensity to commit the current offenses and were therefore
inadmissible under Tennessee Rule of Evidence 404(b). The State counters that the
questions concerning the prior convictions were proper impeachment under Tennessee
Rule of Evidence 609.

During the State‟s cross-examination of Defendant Brookshire, the State
asked if her “testimony to the jury today was that you were lying to protect [Defendant]
Sims . . . when the police came to arrest you.” Defendant Brookshire responded in the
affirmative and asked if she could explain. When the State acquiesced, Defendant
Brookshire testified as follows:

Being out there with [Defendant Sims] – when I first
met him I had a job with Desoto County Board of Education
and I had a night job too working in a care [sic]. I worked
two jobs. I had my own apartment, my own car. I was a
mother. I was a rent payer. I tried to do right. Things
happened. We got involved. I ended up making the wrong
decisions. I‟m put on the streets somewhere I‟ve never been.

I‟ve [sic] not a spoiled brat but I had an upbringing – I
had a decency placed in me that I grew up with and when he
introduced me to living on the street, that man right there was
my god because he knew more than I did. He protected me
from people. Even though – it‟s hard to explain you-all. He
had me. He had me right there and he used me and it didn‟t
seem like he was using me at the time. I thought he loved
me. It felt like love and I was going to do anything for that
love because he made it seem like he was doing anything for
me.

Don‟t get that look on your face now, [Defendant
Sims], don‟t get that look now. So, yeah, when they asked, I
protected him every way that I could because I thought that‟s
what he was doing for me.

At this point in the testimony, the State requested a bench conference. The trial court
excused the jury, and the State argued that Defendant Brookshire, by vouching for her
- 17 -
good citizenship, had opened the door for questions about the assault convictions she had
amassed prior to meeting Defendant Sims. Defense counsel requested to make “a small
argument just to protect the record,” and then stated as follows:

My argument would be that she stated that she had two
jobs, had an apartment and was paying her bills. She said that
being on the streets with [Defendant Sims] she had to learn
how to be on the streets and survive on the streets and
therefore that‟s why she looked at him as her god. She did
not say anything about I‟ve never gotten in trouble before or
anything like that. It dealt with being able to live on the
streets and therefore I‟d say that – that I don‟t know where
having a domestic violence conviction has anything to do
with surviving on the streets.

Defense counsel made no further argument in support of his objection. The trial court
agreed that Defendant Brookshire had “opened the door” and permitted the State to
question Defendant Brookshire about assault convictions she had received in 2004 and
2005 prior to meeting Defendant Sims in 2007. Defense counsel did not request a
limiting instruction nor was one given.

When the jury returned to the courtroom, the State resumed its cross-
examination of Defendant Brookshire, and the following exchange occurred:

Q: Now, Ms. Brookshire, your difficulties started before
you met [Defendant] Sims. Correct?

A: Sure.

Q: You were in fact convicted of an assault that happened
on March 13th of 2004 in April of 2004. Correct?

A: Yes.

Q: And you were also convicted for an assault that
happened in June of 2004 back in December of 2004.
Correct?

A: That‟s correct.

- 18 -
Q: And you were also convicted of a domestic assault that
happened in September of 2005 in October of 2005.
Correct?

A: That‟s correct.

Q: And all those were in Tipton County before you met
Mr. Sims?

A: That‟s correct.

Q: Nothing further, Judge.

Questions concerning evidentiary relevance rest within the sound discretion
of the trial court, and this court will not interfere with the exercise of this discretion in the
absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);
State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the
trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204
S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)).

Relevant evidence is evidence “having 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.” Tenn. R. Evid. 401. “Evidence which
is not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed
relevant, it may be still be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Tenn. R. Evid. 403.

Generally speaking, “[e]vidence of a person‟s character or trait of character
is not admissible for the purpose of proving action in conformity therewith on a particular
occasion.” Tenn. R. Evid. 404(a). This rule is subject to certain exceptions, however,
including “evidence of a pertinent trait of character offered by an accused or by the
prosecution to rebut the same.” Tenn. R. Evid. 404(a)(1). In addition, “[e]vidence of
other crimes, wrongs, or acts” may be admissible for “other purposes,” such as proving
identity, criminal intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b); State
v. Thacker, 164 S.W.3d 208, 239-40 (Tenn. 2005). To admit such evidence, the rule
specifies four prerequisites:
- 19 -
(1) The court upon request must hold a hearing outside the jury‟s
presence;

(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to
be clear and convincing; and

(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

Subject to certain conditions for admissibility, Tennessee Rule of Evidence
609 authorizes the use of proof of a witness‟s prior convictions to attack a witness‟s
credibility. Tenn. R. Evid. 609(a). The prior conviction must be for a felony or a crime
involving dishonesty or false statement. Id. 609(a)(2).

In the instant case, both Defendant Brookshire and the State are mistaken as
to the evidentiary rule at issue. The crimes the State sought to use in its cross-
examination of Defendant Brookshire were all misdemeanors that did not involve
dishonesty or false statement and, as such, did not qualify for admission under Rule 609.
Similarly, admission of these assaultive crimes does not generally fall within the ambit of
Rule 404(b) because the State was not seeking to admit them to prove identity, intent,
mistake, or the like. Rather, the true nature of the State‟s use of the assault convictions
was to impeach Defendant Brookshire through fact contradiction, a device that is
recognized by our courts. See, e.g., State v. McKinney, 74 S.W.3d 291, 317 (Tenn. 2002)
(appendix). Through fact contradiction, a cross-examining party inquires about facts that
conflict with the witness‟s testimony to show indirectly that the witness is untruthful. See
Neil P. Cohen et al., Tennessee Law of Evidence § 6.07[4][a] (6th ed. 2011). Here, the
State used Defendant Brookshire‟s 2004 and 2005 assault convictions as a means of
contradicting Defendant Brookshire‟s assertions that, prior to meeting Defendant Sims,
she had been a hard-working, “decen[t]” citizen who had “tried to do right” and who had
“ended up making the wrong decisions” after she “got involved” with Defendant Sims.

We recognize that the questions concerning the prior assault convictions
elicited evidence of prior bad acts that tended to show Defendant Brookshire‟s propensity
- 20 -
for violence on specific occasions, which is generally prohibited under Rule of Evidence
404(b). See Tenn. R. Evid. 404(b). The problem with employing a 404(b) analysis at
this juncture is that Defendant Brookshire‟s objection to the introduction of the assault
testimony was not predicated on the grounds of Rule 404(b). See, e.g., Tenn. R. Evid.
103(a) (error may not be predicated upon an evidentiary ruling without a timely objection
that specifically states the ground of objection); State v. Korsakov, 34 S.W.3d 534, 545
(Tenn. Crim. App. 2000) (defendant may not base an objection to the admission of
evidence on one ground at trial and “then base his argument on another ground, such as
the violation of Rule 404(b), Tenn. R. Evid., on appeal”). Rather, Defendant Brookshire
argued that the door to admission had not been opened via her direct examination
testimony. Thus, the possible error in allowing this line of cross-examination will not be
noticed by this court unless it qualifies as plain error.

We consider several factors to determine when to notice plain error:

“(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 and approving factors set forth
in State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). Our supreme
court emphasized that “all five factors must be established by the record before [the
supreme court] will recognize the existence of plain error.” Id. at 283. Moreover,
“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.” Id.

We conclude that we are not presented with a case in which we are
compelled to notice plain error. Because Defendant Brookshire did not base an objection
on Rule 404(b) and did not request a hearing on that basis, see Tenn. R. Evid. 404(b)(1),
the trial court did not “determine that a material issue exist[ed] other than conduct
conforming with a character trait” that would have supported the use of the evidence,
and, if so, it did not determine whether the probative value of the evidence was
outweighed by the “danger of unfair prejudice,” see Tenn. R. Evid. 404(b)(2), (4).
Moreover, the State did not have an opportunity to argue or show that the evidence was
admissible for “other purposes” than propensity. See Tenn. R. Evid. 404(b). Thus, we
are hampered by the inability to discern that a clear and unequivocal rule of law was
necessarily breached. See Smith, 24 S.W.3d at 282.

- 21 -
Furthermore, Defendant Brookshire made no request for a limiting
instruction. In the absence of such an instruction, the evidence of the prior assault
convictions was available for unrestricted use by the jury. See id. at 279 (“A trial court . .
. generally has no duty to exclude evidence or to provide a limiting instruction to the jury
in the absence of a timely objection.”).

In conclusion, we find no plain error with respect to the State‟s cross-
examination of Defendant Brookshire.

III. Sufficiency

Next, both defendants contend that the evidence adduced at trial was
insufficient to support their convictions of aggravated robbery. Specifically, both
defendants argue that the State failed to establish that the walrus tusk was a deadly
weapon. In addition, Defendant Sims asserts that the proof was insufficient to show he
was criminally responsible for Defendant Brookshire‟s actions with respect to the walrus
tusk, and Defendant Brookshire claims that double jeopardy principles prevent her
conviction of aggravated robbery when she was acquitted of both especially aggravated
kidnapping and aggravated kidnapping.

We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

As charged in this case, aggravated robbery is “robbery as defined in § 39-
13-401 . . . [a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §
- 22 -
39-13-402(a)(1). “Robbery is the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Id. § 39-13-401(a). “A
person commits theft of property 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). A deadly weapon is defined as “[a] firearm or
anything manifestly designed, made or adapted for the purpose of inflicting death or
serious bodily injury; or [a]nything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” Id. § 39-11-106(a)(5). “„Bodily injury‟
includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary
illness or impairment of the function of a bodily member, organ, or mental faculty.” Id. §
39-11-106(a)(2). “„Serious bodily injury‟ means bodily injury that involves . . . [a]
substantial risk of death; [p]rotracted unconsciousness; [e]xtreme physical pain;
[p]rotracted or obvious disfigurement; [p]rotracted loss or substantial impairment of a
function of a bodily member, organ or mental faculty; or [a] broken bone of a child who
is eight (8) years of age or less.” Id. § 39-11-106(a)(34) (2010).

Moreover, “[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.” T.C.A. § 39-11-401(a).
Additionally, criminal responsibility for the actions of another arises when the 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. § 39-11-402(2); see State v. Lemacks, 996 S.W.2d
166, 170 (Tenn. 1999) (“As reflected in this case, criminal responsibility is not a separate,
distinct crime. It is solely a theory by which the State may prove the defendant‟s guilt of
the alleged offense . . . based upon the conduct of another person.”).

Here, the proof adduced at trial established that Defendant Sims and
Defendant Brookshire entered Mr. Mays‟s residence in the middle of the night, and
Defendant Sims handcuffed Mr. Mays‟s hands behind his back. When Mr. Mays did not
immediately give in to Defendant Sims‟s demands for money, Defendant Sims began
rifling through a chest of drawers while, a few feet away, Defendant Brookshire beat Mr.
Mays with his own walrus tusk. Mr. Mays testified that Defendant Brookshire beat him
“several times” with the tusk, striking him in the head, ribs, and legs, and photographs
introduced into evidence by the State showed the injuries to his head and leg. Mr. Mays
stated that the walrus tusk was approximately 24 inches long and described it as “not
quite as heavy as a baseball bat,” although Defendant Brookshire testified that the tusk
was “heavier than a damn baseball bat.” Defendant Sims stole Mr. Mays‟s cash, wallet,
checkbook, car keys, cellular telephone, and vehicle, and Defendant Brookshire stole the
walrus tusk. Given the size and similarity to a baseball bat, the walrus tusk was certainly
capable of being used to cause death or serious bodily injury, and this court has
- 23 -
repeatedly recognized that a baseball bat can be a deadly weapon. See State v. Donald
Prescott, No. W2012-02454-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App., Jackson, Apr.
11, 2014); State v. Michael David Fields, No. E2010-02446-CCA-R3-CD, slip op. at 35
(Tenn. Crim. App., Knoxville, Apr. 30, 2013), perm. app. denied (Tenn. Sept. 11, 2013);
State v. Steven Watson, No. W2008-00452-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App.,
Jackson, Aug. 6, 2009). Accordingly, we find the evidence was sufficient to establish
that the walrus tusk used to beat Mr. Mays qualified as a deadly weapon.

In addition, the evidence sufficiently established that Defendant Sims and
Defendant Brookshire entered Mr. Mays‟s residence with the intent to rob him; that
Defendant Sims was a few feet away when Defendant Brookshire was beating Mr. Mays
with a deadly weapon; and that Defendant Brookshire beat Mr. Mays “several times”
before Defendant Sims intervened and told Defendant Brookshire to stop the assault.
Under these circumstances, Defendant Sims was criminally responsible for the actions of
Defendant Brookshire and is therefore guilty of aggravated robbery.

Finally, we find no merit in Defendant Brookshire‟s contention that her
acquittals of especially aggravated kidnapping and aggravated kidnapping – both of
which require the use of a deadly weapon – dictate that double jeopardy principles
prevent a conviction of aggravated robbery. “The rendering of inconsistent verdicts has
always been an exclusive privilege and prerogative of the jury, and it is not [a reviewing
court‟s] duty to unravel the ratiocinations of the jury‟s collective logic.” Jackson v. State,
477 S.W.2d 213, 216 (Tenn. Crim. App. 1971). As the supreme court explained in
Wiggins v. State,

Consistency in verdicts for multiple count indictments is
unnecessary as each count is a separate indictment. Therein
lies the essential reasoning. An acquittal on one count cannot
be considered res judicata to another count even though both
counts stem from the same criminal transaction. This Court
will not upset a seemingly inconsistent verdict by speculating
as to the jury‟s reasoning if we are satisfied that the evidence
establishes guilt of the offense upon which the conviction was
returned.

Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973). Accordingly, no infirmity attends
Defendant Brookshire‟s conviction of aggravated robbery.

In conclusion, the evidence is sufficient to support both Defendant Sims‟s
and Defendant Brookshire‟s convictions of aggravated robbery. Although not raised by
the defendants on appeal, we hold the evidence likewise supports both defendants‟
- 24 -
convictions of kidnapping.

IV. Instructions to Jury

The defendants raise a number of issues concerning the trial court‟s
instructions to or communication with the jury. First, Defendant Sims contends that the
trial court erred by instructing the jury that it had altered the defendants‟ statements “for
legal reasons.” Second, both defendants claim that the trial court erred by charging the
jury with a sequential jury instruction. Finally, Defendant Sims argues that the trial court
erred by engaging in ex parte communication with the jury during deliberations.

A. Defendants’ Statements

While cross-examining Sergeant Simpson, Defendant Sims requested a
hearing outside the presence of the jury to ensure that the questions he intended to ask
regarding the defendants‟ redacted statements were appropriate. The trial court granted
the request, and, following a brief hearing in which counsel for both defendants asked
their proposed questions to Sergeant Simpson, the jury returned, and counsel for
Defendant Sims resumed his cross-examination. When counsel asked Sergeant Simpson
if, during his interview of Defendant Brookshire, she had mentioned “anything about Mr.
Mays being in the closet,” the trial court instructed counsel to approach the bench
because he had asked an unapproved question. Before allowing counsel to continue his
cross-examination, the trial court instructed the jury that the defendants‟ redacted
statements, which had just been admitted into evidence, had “been altered under my
orders for legal reasons” and that they were “not to concern [them]selves with that.”
Defendant Sims did not object to this instruction.

Defendant Sims‟s failure to lodge a contemporaneous objection to the trial
court‟s instruction results in a waiver of plenary review of this issue. See Tenn. R. App.
P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); see also State v. Killebrew, 760
S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies when the defendant fails to
make a contemporaneous objection); State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim.
App. 1987). Moreover, we see no basis for noticing the error despite waiver. See Tenn.
R. App. P. 36(b).

B. Sequential Order Instruction

During jury deliberations in the instant case, the jury made the following
inquiry: “If we cannot all agree on the charge we are currently on, can we move to the
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next lesser charge and then go back to the previous charge if we decide to?” In response,
the trial court sent back the instruction that required the jurors to consider each offense in
sequential order. On appeal, both defendants argue that this instruction was given in
error.

The law on the issue of sequential jury instructions is clear, as reviewed and
set forth by the supreme court in State v. Davis:

[W]here a criminal defendant is entitled to jury instructions
on lesser-included offenses, the trial court shall instruct the
jury to consider the offenses in order from greatest to least
within each count of the indictment and . . . it shall not
proceed to consider any lesser-included offense until it has
first made a unanimous determination that the defendant is
not guilty of the immediately-preceding greater offense.

State v. Davis, 266 S.W.3d 896, 910 (Tenn. 2008). Because the trial court clearly
followed the law in responding to the jury‟s query with the sequential order instruction,
the trial court committed no error.

The defendants‟ sole basis for assigning error to this issue is to urge this
court to follow the “reasonable efforts method” advocated by Justice Wade in his Davis
concurrence:

“Under this method, jurors may render a verdict on a lesser-
included offense if, after full and careful consideration of the
evidence, they are [first] unable to reach agreement with
respect to the charged crime. Thus, the jury may deliberate
on a lesser offense if it either (1) finds the defendant not
guilty on the greater charge, or (2) after reasonable efforts
cannot agree whether to acquit or convict on that charge.”

Davis, 266 S.W.3d at 911 (Wade, J., concurring) (quoting State v. LeBlanc, 924 P.2d 441,
442 (Ariz. 1996)). As we have already indicated, the supreme court has held sequential
jury instructions to be proper, and we are obliged to follow this holding. Accordingly, we
decline the defendants‟ invitation.

C. Ex parte Communication

At some point during jury deliberations, the jury sent a handwritten note to
the trial court, which read, “If it is believed that [Defendant] Sims is guilty of aggravated
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robbery through criminal responsibility – Is he guilty of aggravated robbery?” Beneath
this, the trial judge responded, “Yes,” followed by his signature and the date. Because
the trial transcript contains a full record of the disposition of the sequential jury
instruction request and no record whatsoever of this communication, we must conclude
that the trial court responded to the jury‟s request sua sponte and without the prior
knowledge of the parties. Counsel for Defendant Sims avers that he first learned of the
communication when he reviewed the appellate record.

Trial courts should refrain from communicating with deliberating juries by
passing notes. State v. Mays, 677 S.W.2d 476, 479 (Tenn. Crim. App. 1984). To prevent
even the appearance of judicial partiality or unfairness, any proceedings involving the
jury after it has retired for deliberations should be conducted in open court and in the
defendant‟s presence. State v. Tune, 872 S.W.2d 922, 928 (Tenn. Crim. App. 1993);
Smith v. State, 566 S.W.2d 553, 559-60 (Tenn. Crim. App. 1978). The proper method for
fielding jury questions during deliberations is to recall the jury, counsel for both parties,
the defendant, and the court reporter and to resolve the matter on the record. Mays, 677
S.W.2d at 479.

The failure to follow the proper procedure, however, is subject to harmless
error analysis. Tune, 872 S.W.2d at 928; Mays, 677 S.W.2d at 479. If the defendant has
not been prejudiced by an inappropriate response, reversal is not required. Tune, 872
S.W.2d at 928. Here, the trial judge‟s simple response of “yes” to the inquiry was a
proper statement of the law. As such, his method of response, while inappropriate, did
not prejudice Defendant Sims, and the error is accordingly harmless.

V. Competency of Defendant Brookshire

Defendant Sims asserts that the trial court erred by denying his post-trial
motion for a mistrial and severance, and Defendant Brookshire contends that the court
erred by denying her motion for new trial, on the basis that Defendant Brookshire was
incompetent to stand trial.

“The Fourteenth Amendment to the United States Constitution and article I,
section 8 of the Tennessee Constitution prohibit a mentally incompetent person from
being put to trial.” State v. Reid, 213 S.W.3d 792, 808 (Tenn. 2006) (citing Pate v.
Robinson, 383 U.S. 375, 378 (1966); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn.
2000)). That said, “[i]n Tennessee, a criminal defendant is presumed to be legally
competent.” State v. Johnson, 401 S.W.3d 1, 17 (Tenn. 2013) (citing State v. Reid, 164
S.W.3d 286, 306-07 (Tenn. 2005); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim.
App. 1991)). As such, the defendant bears the burden of establishing his incompetence
by a preponderance of the evidence in the trial court. See Reid, 164 S.W.3d at 306-08.
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The assessment of competency is multi-pronged. To be deemed competent, a defendant
must possess “„the capacity to understand the nature and object of the proceedings
against him [or her], to consult with counsel[,] and assist in preparing his [or her]
defense.‟” Johnson, 401 S.W.3d at 17 (quoting Reid, 164 S.W.3d at 306). “A defendant
may prove his or her incompetency with evidence of the defendant‟s „irrational behavior,
his [or her] demeanor at trial, and any prior medical opinion on competence to stand
trial.‟” Johnson, 401 S.W.3d at 17 (citing State v. Kiser, 284 S.W.3d 227, 246 (Tenn.
2009) (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975))). The trial court‟s findings
regarding the defendant‟s competence “are conclusive on appeal unless the evidence
preponderates otherwise.” Oody, 823 S.W.2d at 559.

Following the defendants‟ February 2013 convictions in the instant case,
the trial court became concerned about the status of Defendant Brookshire‟s competency
based on “some allegations that she made and a lot of letters that she wrote to [the trial
court] and to Mr. White, who was representing her.” After relieving Mr. White as
Defendant Brookshire‟s counsel to avoid any conflicts and appointing Ms. Carriker to
take over, the trial court ordered a competency evaluation of Defendant Brookshire and
conducted a competency hearing in November 2013.

At the hearing, Doctor Wyatt Nichols, a clinical psychologist, testified that,
in response to a court order to determine her competency, he initially evaluated
Defendant Brookshire on April 12, 2012. At that initial meeting, Doctor Nichols learned
that Defendant Brookshire was on an antipsychotic medication to treat bipolar disorder.
Doctor Nichols noted that Defendant Brookshire was “hyper verbal,” “disorganized,” and
“irritable” at the meeting. Athough Doctor Nichols had “some doubts” that Defendant
Brookshire would be “able to control herself or be competent to proceed if she were not
on medication,” he believed her to be competent.

Doctor Nichols next saw Defendant Brookshire on March 7, 2013,
approximately 3 weeks after the conclusion of trial. At that time, Doctor Nichols found
her to be “so psychotic [he] could not hold a conversation with her.” He determined that
Defendant Brookshire had been off her medication for approximately five months at that
time and that she “[p]robably couldn‟t even control herself in the courtroom” during her
trial. After reviewing her trial testimony, Doctor Nichols opined that it was “very
disorganized,” that she “sounded manic,” and that he did not believe she would have been
a competent witness. Based on Defendant Brookshire‟s presentation on March 7, Doctor
Nichols recommended that she be transferred to Memphis Mental Health Institute
(“MMHI”) for further evaluation. Defendant Brookshire was admitted to MMHI on June
19 and discharged on July 8, 2013. Doctor Nichols acknowledged that doctors at MMHI
did not prescribe any medication to Defendant Brookshire.

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Doctor Nichols last saw Defendant Brookshire on October 17, 2013. She
was back on medication, and he found her to be competent at that time. On cross-
examination, Dr. Nichols acknowledged that Defendant Brookshire understood the role
of her attorney at trial; that she understood the prosecutor was “not her friend”; that she
understood the roles of the judge and jury at trial; and that she understood and could
attempt to minimize those things which would negatively impact her at trial. Doctor
Nichols testified that Defendant Brookshire‟s incompetency stemmed from her inability
to “work with her attorney and sit in a courtroom and understand what‟s going on.”
Doctor Nichols conceded, however, that nothing in the transcript indicated that
Defendant Brookshire was ever held in contempt or lost control during trial.

Rita Anagho, a psychiatric nurse at the jail where Defendant Brookshire
was housed, testified that she saw Defendant Brookshire on February 20, 2013, and that
she had been off her medication for approximately two months at that time. Ms. Anagho
stated that Defendant Brookshire exhibited psychotic and delusional behavior, accusing
her attorney of having sexual intercourse with her and stating that her attorney had
“floated on the air and injected syphilis on her.”

Patricia Booker, Defendant Brookshire‟s mother, testified that a family
friend abused Defendant Brookshire when she was four years of age and that Defendant
Brookshire began exhibiting behavioral problems at the age of nine. Defendant
Brookshire was first hospitalized at the age of 12 for one day but was released and told
“she was okay.” Sometime after the hospitalization, Defendant Brookshire was
diagnosed with “oppositional behavior” and bipolar disorder. As a teenager, Defendant
Brookshire spent “[a] couple of years” at an inpatient program called Youth Town, and,
after her release, she developed a substance abuse problem.

Ms. Booker testified that she noticed Defendant Brookshire‟s delusional
behavior prior to trial and that the delusions continued after the trial. Ms. Booker
admitted that Defendant Brookshire did not appear to be afraid of her attorney during the
course of the trial and that Defendant Brookshire never made any delusional statements
during breaks in the trial.

At the April 30, 2014 hearing on Defendant Brookshire‟s motion for new
trial, the trial court made the following findings with respect to Defendant Brookshire‟s
competency:

[T]he issue with regard to [Defendant] Brookshire‟s mental
health really came to light post trial when there was some
allegations that she was delusional in the jail and made some
statements to Mr. White and to staff in the jail that caused
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some concern to the [c]ourt. Obviously caused some concern
to Mr. White. At that point he was relieved because of the
allegations that had been made and Ms. Carriker took over.
And since that time we‟ve had several hearings and
introduced testimony and records as to [Defendant]
Brookshire‟s post trial condition and whether or not any
opinion of the medical professionals this would have
impacted her at the time of trial.

The [c]ourt will take into account all of that testimony.
And I do think that and I have said and I feel that [Defendant]
Brookshire has some mental health problems. I think there
was substance abuse problems coupled with mental health
problems that led her to have some serious issues in her
personal life. However, I observed her demeanor during the
course of this trial. I listened to her testimony and I will
admit that it was colorful in an unflattering way. And yet I
also find that it was very detailed. It was very systematic. It
was very much self-serving. And I do not find that there was
anything that I recall from the testimony that would strike me
as delusional in the nature of the testimony. Again, I think all
of the specifics and detailed information that was provided
was consistent with not only [Defendant] Sim[s]‟s testimony
but with the victim‟s testimony, with the crime scene
investigation of the house. All of the fact[s] were consistent.
And I didn‟t see other than, you know, again, her colorful
language and her emotional testimony that there was anything
delusional about her testimony.

And tak[ing] the statement that you have offered to me
from Mr. White that he was aware of her psychological
history and was aware of the potential for problems and did
not detect anything. And obviously as soon as the trial was
over with and preparation for sentencing, he detected
something and brought it to our attention immediately. And
so we‟ve had all of the subsequent tests and, again, analysis
and testimony. But I‟m satisfied from the statement offered
by Mr. White that he did not detect anything that would
indicate to him that she was not competent. And would not
have gone forward if he felt she was not competent.
Obviously would have brought it to this [c]ourt‟[s] attention if
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he felt she was not competent before he put her on the witness
stand. I think she was voir dired about the testifying. And I
this [c]ourt didn‟t detect anything that would indicate she was
delusional are [sic] non-competent at the time. And,
therefore, I don‟t find that there‟s any proof that‟s been
presented to me that at the time of this trial she was suffering
under such mental disorders that would cause her to be non-
competent in understanding what was occurring and assisting
counsel and testifying in a cohesive manner that was
consistent with all the facts of the case.

I don‟t find that there‟s anything there that would
cause me to believe that she was not in control of her faculties
and was able to assist counsel and able to testify in this case.
So although I do recognize that she suffers from some serious
mental health issues and substance abuse problems . . . I do
not find there was bases [sic] for me to rule that her testimony
nor her actions in the course of this trial indicated a lack of
competent [sic] such that it impacted or affected the proof
that was presented in this case. So I don‟t find that there‟s a
basis for me to grant a new trial based upon that.

The trial court likewise denied Defendant Sims‟s post-trial motion for a mistrial and
severance.

In our view, the record does not preponderate against the findings of the
trial court. Although Doctor Nichols retrospectively questioned Defendant Brookshire‟s
competence to stand trial, he conceded that Defendant Brookshire understood the roles of
the attorneys, judge, and jury in the trial and that she understood and could attempt to
minimize those things which would negatively impact her at trial. Nothing indicated that
Defendant Brookshire was unable “„to understand the nature and object of the
proceedings against [her], to consult with counsel and assist in preparing [her] defense.‟”
Johnson, 401 S.W.3d at 17 (quoting Reid, 164 S.W.3d at 306)). Defendant Brookshire‟s
testimony and behavior at trial, though “colorful in an unflattering way,” was not
indicative of incompetence; indeed, as found by the trial court, her testimony was
“detailed,” “systematic,” “consistent,” and not at all “delusional.”

Defendant Sims likens this case to that of State v. Carruthers, in which the
supreme court reviewed “the effect of one defendant‟s self-representation on a co-
defendant‟s right to a severance.” State v. Carruthers, 35 S.W.3d 516, 553 (Tenn. 2000).
The court determined that pro se litigant Carruthers displayed inappropriate behavior
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during trial, elicited incriminating testimony, and called an unfavorable witness, all of
which prejudiced his co-defendant, and the court reversed the co-defendant‟s conviction
and remanded for a new trial. Id. at 553-554. Defendant Sims is mistaken in his analogy.
Defendant Brookshire‟s testimony and behavior at trial was in no way similar to the
antics of the pro se defendant in Carruthers.

We conclude that the evidence does not preponderate against the trial
court‟s finding that Defendant Brookshire was competent to stand trial. Accordingly, we
find no error in the trial court‟s denial of Defendant Sims‟s post-trial motion for a mistrial
and severance or in the denial of Defendant Brookshire‟s motion for new trial.

VI. Cumulative Error

Finally, Defendant Sims contends that the cumulative effect of the trial
court‟s errors inured to his prejudice. Having considered each of Defendant Sims‟s
issues on appeal and concluded that he is not entitled to relief for any, we need not
consider this issue any further. State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010) (“To
warrant assessment under the cumulative error doctrine, there must have been more than
one actual error committed.”).

Conclusion

The defendants have failed to establish entitlement to relief on any of the
issues presented. Accordingly, the judgments of the trial court are affirmed.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3004852. Public record. Not legal advice.