State of Tennessee v. Douglas McArthur Wilson

lN THE COURT OF CRIl\/IINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 17,2018 Session

STATE OF TENNESSEE v. D()UGLAS MCARTHUR WILSON

Appeal from the Criminal Court for Smith County F § L

No. 2012-CR-250 Brody N. Kane, Judge E D

MAY 0 7 2018

NO. M2017-00432-CCA-R3-CD §;ec’.§ ;’y‘"e Appe"a‘@ C<>urfs

_`___.__"'_~"'_‘_~_

Defendant, Douglas l\/chrthur Wilson, Was indicted for attempted first degree murder in

2012. After a jury trial, Defendant was convicted of the lesser included offense of

attempted second degree murder. The trial court sentenced Defendant to ten years in

incarceration After the denial of a motion for new trial, Defendant presents a multitude

of issues on appeal. After a thorough review of the record and applicable authorities, We

affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Aff`lrmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in Which THOMAS T.

WoooAl_,L, P.J., and RoBERT L. HoLLoWAY, Jr., J., joined.

Jacky O. Bellar, Jamie D. Winkler, and Samantha L. Key, Carthage, Tennessee, for the

appellant, Douglas l\/chrthur Wilson.

Herbert H. Slatery lll, Attorney General and Reporter; Clark B. Thornton, Assistant

Attorney General; Tom P. Thompson, District Attorney General; and Jacl< Bare and Javin

Cripps, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

F actual and Proceduml Background

On the evening of September 23, 2012, emergency medical personnel Were

summoned to a home in rural Smith County based on a report of a stabbing or cutting.

Upon their arrival, they found Timothy Bennett, the victim, at the home of Judith Brown.

He was bleeding profusely from a large gash in his neck that extended nearly from one

side of his neck to the other. The victim was transported via helicopter to Vanderbilt

Hospital in Nashville for treatment He survived. Defendant was arrested and

transported to the police station that night. The next morning, Defendant was read his

Mz`ranclcz rights and questioned by police. The interview room was equipped with video

recording equipment, which recorded the interaction between Defendant and the police.

As a result, Defendant was eventually indicted by the Smith County Grand Jury for one

count of attempted first degree murder.

I. Hearing on Moi‘z`on to Suppress

ln l\/larch of 2013, Defendant filed a motion to suppress the statement given to

police the day after the incident The trial court held a hearing on the motion on April 8,

20l3.l At the hearing, the trial court heard testimony from Shannon Hunt, a Lieutenant

with the Detective division of the Smith County Sheriff’ s Department. Lieutenant Hunt

was on call the night of the incident and responded to the scene from his residence.

When Lieutenant Hunt arrived on the scene, the victim was already being transported by

helicopter to Nashville and Defendant was in custody in the back of a patrol car.

Lieutenant Hunt attempted to talk to Defendant when he arrived on the scene but

Defendant was “heavily intoxicated on alcohol or pills” and “could barely stand”.

Defendant’s family informed the officer that Defendant was on medication, but the

officer was not certain how many pills Defendant had taken or what kind of pills

Defendant had taken. Lieutenant Hunt “didn’t think it would be fair . . . to talk to him at

that time,” so he made the decision to postpone the interview of Defendant to a later time.

Defendant was transported to and held at the Smith County Sheriff` s Department.

At approximately 9:12 a.m. the next morning, Lieutenant Hunt assessed

Defendant’s condition and believed that Defendant “didn’t appear intoxicated.” In fact,

Lieutenant Hunt explained that “[i]f [Defendant] had something left over in his system at

the time [he] talked to [Defendant] that morning, it didn’t appear.” Lieutenant Hunt

believed that Defendant “understood” his rights and what was going on that morning

During questioning by Lieutenant Hunt, Defendant “explained the prior night in detail.”

Defendant testified at the suppression hearing. He explained that at the time of his

arrest, he was taking allergy medicine, antibiotics, an anti-inflammatory, and Xanax.

Defendant insisted that “three or four days” prior to the incident, he had refilled a

~l At the hearing in April of 2013, the trial judge was the honorable David E. Durham. Judge

Durham retired prior to the trial in this matter.

_ 2 _

prescription for “niiiety of the Xanax.” Defendant explained on the night of September

23, he drank eight beers and took “all” of the Xanax, which would have amounted to

approximately eighty pills. Defendant claimed that he was taken to the jail and placed

“in a cell with not even a bathroom.” Defendant claimed that he was not taken to the

hospital, and that he did not “reinember [the interview] at all.”

The trial court reviewed the videotaped interview and issued an oral ruling

denying the motion to suppress2 In the ruling, the trial court noted that Defendant was

clearly “in custody” at the time of the interview The officers present during the

interview “fully advised” Defendant of his Mz'mnda rights. The trial court noted that

Defendant “clearly did not sign a waiver” but that Defendant was “very cooperative,

never refused to answer [any] questions, [gave] no indication at all that he didn’t want to

talk or tell his side of the story, and at no time did he ever ask for a lawyer even though

he was advised of that particular right.” The trial court noted Defendant’s “cooperative,”

“spontarieous” answers to questions, and determined that Defendant knowingly and

voluntarily waived his rights. The trial court observed that Defendant never requested a

lawyer and that the statements were voluntary.

ln September of 2014, for reasons unclear to this Court, Defendant filed a second

motion to suppress the statement The second motion to suppress raised basically the

same issues as the first motion to suppress The record contains neither a transcript from

a hearing on this motion nor an order disposing of this motion. However, at trial, defense

counsel renewed the motion during the testimony of Lieutenant Hunt when the State

attempted to introduce the videotape of the interview. At that time, the trial court upheld

“the ruling [the original trial judge] previously made [on the motion to suppress].”

II. Trz`al Testz`mony

The victim was twenty-two years old at the time of the incident He explained that

there were three houses on a “family compound” down the gravel road where the incident

occurred. The first house belonged to Ruth Bedgood, Defendant’s mother-in-law.

Defendant’s house was in the center. Defendant lived at the house with his stepson, Kate

Cortez, Jr.; l\/lr. Cortez’s girlfriend; and Deborah Wilson, Defendant’s wife. l\/lrs. Wilson

was the sister of Judith Brown, whose house was the last house on the road. The victim

was unemployed and lived with Judith Brown. Several other people lived at the Brown

residence, including Stetson Brown, Erica Brown, Larry Stump, and Trisha Brown. The

victim had been living there a few months and was “acquainted” with Defendant; he

explained that they did not have “much of a relationship” but had not had any conflicts.

2 There is no order disposing of the motion to suppress in the technical record on appeal

_ 3 _

The victim helped Defendant split wood on several occasions The victim had a blue

“mohawk” at the time of the incident

ln the early evening of the incident, the victim was “getting wood” for a bonfire

for Erica Brown’s birthday. The victim had a “couple of beers” around 7:00 p.m.

Stetson Brown helped the victim get the fire started. The victim admitted that he had

“used drugs” in the past but denied taking any medication or drugs the night of the

incident other than drinking a few beers. That night, the victim planned to “have a good

time” and “hang out” by the bonfire.

The victim recalled that he was “sitting on a rock” by the bonfire. He had a

machete with him that night that he “used to cut stuff up for the bonfire.” Apparently, the

victim routinely carried a machete around with him. The victim described the machete as

a “regular store bought machete” about “two feet long” that he bought at Walmart a few

weeks prior to the incident. According to the victim the machete was about forty to fifty

feet away from where he was sitting.

After the fire was started, several of the people left to go to the store to get more

alcohol. The victim was sitting at the fire drinking a beer, “waiting on [his] friends to

come back with some drinks, and [Defendant] just come up behind and slit - - cut [his]

throat.” The victim testified that Defendant got him in a “choke hold, like [he] was going

to be in [a] headlock.” Then, the victim “felt something warm and wet go down [his]

chest and . . . noticed it was blood.” The victim claimed that there was no verbal

exchange between him and Defendant prior to the attack.

Judith Brown was inside her house at the time of the incident. When she came

outside during the bonfire she “saw [the victim and Defendant] brawling,” or what she

thought was “brawling,” because it looked like Defendant “was kind of on top of [the

victim].” She ran outside and grabbed Defendant and asked him “what’s going on.” The

victim was able to recall that Judith Brown removed Defendant from the victim. Judith

Brown saw Defendant run around to the back of the house. Judith Brown admitted that

she and the victim were drinking that night and even described herself as “drunk.”

After Judith Brown separated the two men, the victim ran into the house, thinking

that he was “going to die.” The victim collapsed when he got inside. The next thing the

victim recalled was being placed on a stretcher. At trial, the victim showed his scar,

which extended from behind his right ear all the way around his neck, stopping under his

chin on the left side of his neck. He complained that he still had no feeling in half of his

face as a result of the injuries.

The victim identified a knife from the area surrounding the bonfire as a knife that

he saw “[p]robably a few days before the incident” at Defendant’s house. The victim

denied Defendant’s allegations that he was throwing cans out of a car trying to hit people.

On cross-examination, the victim denied that he attempted suicide four days prior

to the incident and denied that he reported to medical personnel a day or two after the

incident that he had “seven different personalities” including “an Irish guy, a gay guy,

two guys you don’t want to mess with, a little kid” and other personalities that he could

not recall. ln fact, the victim denied “seeing a psychologist or psychiatrist.” The victim

admitted that he did not remember taking pain medication the day of the incident but that

it was possible that he took pain medication When questioned, the victim agreed that he

was a peaceful person. The victim did not recall Defendant telling emergency medical

personnel that the incident occurred because Defendant thought the victim was flirting

with his wife. The victim also did not recall Defendant touching him prior to the attack.

John Wesley Hiett with the Smith County Emergency Medical Services (“EMS”)

was one of the first responders on the scene. He found the victim inside Judith Brown’s

home lying on his “right side holding [a piece of cloth or towel to] his throat.” There was

a “large amount of blood on the floor.” With the help of one of the police officers on the

scene, l\/lr. Hiett was able to place a spine board under the victim and roll him to his back.

When the towel was removed from the victim’s neck a “very large laceration [was

visible],” which spanned from “jawline to jawline.” The victim was obviously in shock

but was otherwise awake and alert. l\/lr. Hiett and several other officers had to drag the

victim to the door of the house before carrying him outside to be placed on a stretcher.

l\/lr. Hiett described the victim as a “large” man. The victim was taken by ambulance to a

helicopter for transport to Vanderbilt hospital.

Sergeant Dusty Hailey was dispatched to the scene upon a report of an “altercation

involving a knife.” When he received the call, he notified EMS and took two deputies

with him. Sergeant Hailey arrived at Judith Brown’s house where he found the victim on

the floor in “a very large pool of blood.” The victim identified Defendant as the

perpetrator

Sergeant Hailey assisted Lieutenant Shannon Hunt and Kit Jenkins in processing

the scene. Sergeant Hailey located a knife next to the fire pit. He also collected the

victim’s bloody clothing from the hospital. Sergeant Hailey placed the clothing in a

paper bag and took the clothing to his office to dry before it was sent to the Tennessee

Bureau of Investigation (“TBI”) for processing

Detective Jenkins helped to process the crime scene by taking photographs and

collecting evidence Blood was found near the fire pit and a trail of blood led to the

_5_

house. A knife was found near the fire pit. The blood on the knife matched the victim.

The handle of the knife contained DNA from three individuals, with the major

contributor profile being a mixture of the victim’s DNA and an unknown male. The

unknown male DNA matched the DNA profile obtained from a blue sweatshirt belonging

to Defendant.

After the victim was transported from the scene, Defendant emerged from the

woods He was taken into custody and transported to the police station but was not

questioned because he appeared to be heavily intoxicated The next morning, Defendant

was questioned by Lieutenant Hunt and Detective Jenkins. Defendant did not appear

impaired at that point and spoke freely to the officers At trial, Defendant renewed his

motion to suppress the videotape of the interview. The trial court upheld the prior ruling

denying the motion to suppress

The videotape of the interview was played for the jury. During the videotape,

Defendant is asked if he knows why he is in jail. Defendant responds that he “cut a fat

piece of shit.” Defendant then informed the officers that his stepson told him that the

victim was throwing bottles and cans out of a car at old people. This made Defendant

“angry,” so he decided to “teach [the victim] a lesson.”

Defendant testified at trial. Defendant was forty-nine years old at the time of trial.

He suffered from a heart murmur, arthritis, and knee pain. Defendant had one “artificial

knee.” Defendant explained that he was unemployed at the time of the incident but held

a regular job at the time of trial. Defendant also often worked in the neighborhood

farming and cutting wood. Defendant recalled a time prior to the incident when the

victim asked to help cut wood. Defendant taught the victim to “split wood” and

described the victim as c‘excited” to learn this skill. On one particular occasion, the

victim got overheated while they were working together so Defendant gave him a glass of

water. Defendant continued to work and, after a few minutes, “looked around” and did

not see the victim. Defendant found the victim inside his house “sitting against”

Defendant’s wife, who was “laid out” on “pain medication” because she had a broken

leg Defendant asked the victim to get up. The victim got up and sat down next to l\/lr.

Cortez’s girlfriend Defendant asked the victim to go outside.

On the night of the incident, Defendant described it as a “normal night.” He knew

that the neighbors were going to have a bonfire. Around 8:()0 or 8:3() p.m. that night, he

got a call from Erica Brown asking for help in lighting the bonfire. Defendant walked

next door and saw the victim sitting in front of the fire. The victim had cut his hair into a

mohawk and dyed it blue. Defendant thought it was “kind of funny,” so he “played with

[the victim’s] hair.” According to Defendant, everyone was having a good time, laughing

and enjoying the evening Defendant noticed “a lot of beer cans and a lot of drinking

_6_

going on” and that a few of the people were underage. He made the underage people go

inside the house. Defendant turned around and saw the victim laughing The victim

asked Defendant “what?” Defendant told him he “shouldn’t be going around and

throwing trash out of there because in our neighborhood it’s a small community.” At this

point, Defendant claimed the victim “got mad and stood up.” Defendant did not know if

the victim was kidding or not so Defendant “reached up” and “pinched his chest” and

“took a step back.” The victim “grabbed” a machete that was “sticking out of the

ground” and came toward Defendant. At that point, Defendant grabbed for the machete

because he thought the victim “was going to cut [him] with it.” Defendant recognized it

as the victim’s machete. Defendant “tackled” the victim and claims that he did not

“know what happened in the struggle.” He recalled being pulled off of the victim and

being hollered at to stop. As Defendant left, the victim was facing the other way. The

victim turned around and yelled that he was c‘sorry” for touching Defendant’s wife.

Defendant saw the victim “run around the house” to the front door. Defendant went

home. When he got there he discovered that he had blood on his hand. He was

“overwhelmed” because he had lost his job “because of his knees,” he had bills, his wife

had a broken leg, and he thought that he hurt the victim. Defendant grabbed his jacket

and his “pill bottles” and ran to the barn By the time he got to the barn there was an

ambulance arriving on the property. Defendant took the “entire bottle of Xanax” before

surrendering to police. Defendant did not recall giving a statement to police and could

not recall “parts” of “the hearing” [police interview].

At the conclusion of the jury trial, Defendant was found guilty of the lesser

included offense of attempted second degree murder and, after a sentencing hearing, was

sentenced to ten years’ incarceration Defendant filed a motion for new trial, in which he

memorialized multiple complaints about his trial. The trial court held a hearing on the

motion, at which Defendant presented the testimony of several witnesses The trial court

denied the motion after the hearing Defendant filed a timely notice of appeal.

On appeal, Defendant raises the following issues for our review: (l) whether the

trial court improperly denied the motion to suppress; (2) whether the trial court erred in

admitting clothing and a weapon into evidence where the State failed to establish chain of

custody; (3) whether the trial court improperly excluded the victim’s Facebook posts; (4)

whether the trial court improperly excluded medical records of the victim; (5) whether

the trial court erred in admitting the videotape of Defendant’s statement; '(6) whether the

trial court erred by permitting the jury to view the videotape multiple times; (7) whether

the trial court properly instructed the jury with respect to the videotape; (8) whether the

trial court erred by refusing to grant a mistrial after the videotape malfunctioned; (9)

whether the trial court erred by restricting Defendant’s examination of witnesses; (l())

whether the evidence was sufficient to support the verdict; (l l) whether the trial court

erred in denying a mistrial after improper jury conduct; (lZ) whether newly discovered

_7_

evidence warrants a new trial; (13) whether the trial court improperly denied the motion

for judgment of acquittal; (l4) whether court personnel influenced the verdict; (15)

whether the trial court improperly instructed the jury on flight; and (16) whether the

sentence was excessive

Analysis

I. Denz`al ofthe Motz'on to Suppress

Defendant argues that the trial court erred in denying the motion to suppress his

statement Defendant insists that he has “no recollection” of the interview or waiver of

rights due to his high level of intoxication and, therefore, the trial court should have

granted the motion to suppress The State, on the other hand, argues that there is “no

merit” to Defendant’s claim.

In reviewing a trial court’s ruling on a motion to suppress, this Court will uphold

the trial court’s findings of fact “unless the evidence preponderates otherwise.” State v.

Bell, 429 S.W.3d 524, 528 (Tenn 20l4) (citing State v. Clz'mer, 400 S.W.3d 537, 556

(Tenn 2013)). Witness credibility, the weight and value of the proof, and the resolution

of conflicts in the proof “are matters entrusted to the trial court as the trier of fact.” Id. at

529. “The party prevailing in the trial court is entitled to the strongest legitimate view of

the evidence adduced at the suppression hearing as well as all reasonable and legitimate

inferences that may be drawn from that evidence.” State v. Bz`nette, 33 S.W.Sd 215, 217

(Tenn 2000) (quoting State v. Oa’om, 928 S.W.2d 18, 23 (Tenn 1996)). The trial court’s

resolution of questions of law and application of the law to the facts are reviewed de novo

with no presumption of correctness State v. Day, 263 S.W.3d 891, 900 (Tenn 2008).

On appeal, the losing party bears the burden of demonstrating that a trial court’s decision

concerning a motion to suppress was erroneous State v. Harz‘s, 7 S.W.3d 78, 84 (Tenn

Crim. App. 1999). “[l]n evaluating the correctness of a trial court’s ruling on a pretrial

motion to suppress, appellate courts may consider the proof adduced both at the

suppression hearing and at trial.” State v. Hennz'ng, 975 S.W.2d 290, 299 (Tenn 1998).

Both the state and federal constitutions guarantee an accused the right to the

assistance of counsel and the right against self-incrimination The Fifth Amendment to

the United States Constitution guarantees that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” Article l, section 9 of the Tennessee

Constitution similarly provides that “in all criminal prosecutions the accused . . . shall

not be compelled to give evidence against himself.” The test for voluntariness under the

Tennessee Constitution is broader and more protective of individual rights than under the

Fifth Amendment. State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996). The Sixth

Amendment to the United States Constitution provides: “ln all criminal prosecutions the

_3_

accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” See

Gz'a’eon v. Waz'nwright, 372 U.S. 335, 339 (1963) (holding that Sixth Amendment right to

counsel in criminal proceedings applies to states through Fourteenth Amendment).

Similarly, Article l, section 9 of the Tennessee Constitution provides: “That in all

criminal prosecutions the accused hath the right to be heard by himself and his counsel.”

Tennessee courts have consistently interpreted the right to counsel under Article I,

section 9 of the Tennessee Constitution as identical to the Sixth Ainendinent right to

counsel. See State v. Willz's 496 S.W.3d 653, 702-03 (Tenn. 2016), cert denied, l37 S.

Ct. 1224 (2017).

Statements made during the course of a custodial police interrogation are

inadmissible at trial unless the State establishes that the defendant was advised of his

right to remain silent and his right to counsel and that the defendant then waived those

rights Mirana’a v. Arizona, 384 U.S. 436, 471-75 (1966); see also Dz`ckerson v. United

States 530 U.S. 428, 444 (2000); Stansbury v. Calz`fornz`a, 511 U.S. 3l8, 322 (1994). A

defendant’s rights to counsel and to remain silent may be waived as long as the waiver is

made voluntarily, knowingly, and intelligently. Mirana’a, 384 U.S. at 478; State v.

Mz'a’a’lebrooks, 840 S.W.2d 317, 326 (Tenn 1992). The voluntariness of a confession

“remains distinct from Mz`randa.” Clz'mer, 400 S.W.3d at 568 (citing Dickerson, 530 U.S.

at 434-35). ln order to determine the voluntariness of a statement a court must “examine

the totality of the circumstances surrounding the giving of a confession, ‘both the

characteristics of the accused and the details of the interrogation.”’ Clz'mer, 400 S.W.3d

at 568 (quoting Dz'ckerson, 530 U.S. at 434)); See also Monts v. Staze, 400 S.W.2d 722,

733 (Tenn 1966). Factors relevant to this determination include:

the age of the accused; his lack of education or his intelligence level; the

extent of his previous experience with the police; the repeated and

prolonged nature of the questioning; the length of the detention of the

accused before he gave the statement in question; the lack of any advice to

the accused of his constitutional rights; whether there was an unnecessary

delay in bringing him before a magistrate before he gave the confession;

whether the accused was injured[,] intoxicated[,] or drugged, or in ill health

when he gave the statement; whether the accused was deprived of food,

sleep[,] or medical attention; whether the accused was physically abused;

and whether the suspect was threatened with abuse.

Ia’. (alterations in original) (quoting State v. Hua’dleston, 924 S.W.2d 666, 671 (Tenn.

1996)); See State v. Blacksz‘ock, l9 S.W.3d 200, 208 (Tenn 2000) (recognizing that no

single factor is necessarily determinative). With respect to a defendant’s impairment

“intoxication does not render a confession invalid if the evidence shows that the

defendant was capable of understanding and waiving his rights.” State v. James David

_9_

Johnson, No. W2006-01842-CCA-R3-CD, 2008 WL 540505, at *5 (Tenn Crim. App.

Feb. 6, 2008) (citing State v. Bell, 690 S.W.2d 879, 882 (Tenn Crim. App. 1985)), no

perm app. flled; see also State v. Anz‘hony Porrazzo, No. E2014-02335-CCA-R3-CD,

2015 WL 9259996, at *5-6 (Tenn Crim. App. Aug. 18, 2015),perm. app. denied (Tenn

l\/lay 5, 2016).

ln this case, the record does not support Defendant’s claim that his statement was

involuntarily given We have reviewed the videotape of the statement Defendant, who

attended high school until the tenth grade, was provided with Mz'randa warnings and

orally waived his rights He expressed familiarity with Mz`randa based on his prior

interaction with authorities Defendant was not sick or injured during his interview.

There is no evidence that Defendant was abused or deprived of food or sleep prior to or

during the relatively short interview. Although Defendant claimed to be heavily

intoxicated because he was under the influence of “a bottle” of Xanax, his demeanor and

speech belied that contention Defendant coherently answered the questions Though not

Shakespearean, Defendant was polite and able to provide fairly detailed descriptions of

his actions that evening ln fact, officers recognized Defendant was intoxicated when he

was arrested and waited until around 9:00 a.m. the next morning to initiate the interview.

In our view, the circumstances surrounding the statement support the trial court’s

determination that Defendant knowingly and voluntarily waived his rights Defendant is

not entitled to relief on this issue. '

II. Introductz`on ofClothz`ng and Weapon into Evz`dence

Defendant challenges the trial court’s refusal to exclude the physical evidence,

namely his clothing and the alleged weapon, on the basis that the chain of custody was

not properly established by the State. l\/loreover, Defendant claims that “no reliable DNA

evidence linked the alleged weapon to Defendant” and that the State should not have

been permitted to ask Defendant about the DNA evidence on cross-examination The

State disagrees pointing to the testimony of TBI Agent Charly Castelbuono to

substantiate the chain of custody. The State also argues that Defendant was not asked to

testify about DNA evidence, rather he was asked by the State if he was “surprised” to

hear that the blood on a sweatshirt seized from Defendant matched the blood on the

handle of the knife.

Though not acknowledged by either party, Defendant did not object to the chain of

custody at trial and, thus has waived the issue on appeal. 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.”); Tenn R. Evid. 103(a)(1) (requiring a

timely objection as a prerequisite to a finding of error based on the trial court’s admission

_10_

of evidence). Thus Defendant is only entitled to relief if he can establish plain error.

The doctrine of plain error applies when all five of the following factors have been

established:

(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 must not have waived the issue for tactical reasons and

(e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 184 S.W.3d 223, 230-31 (Tenn 2006) (quoting State v. Terry, 118 S.W.3d

355, 360 (Tenn 2003)) (internal brackets omitted). “An error would have to [be]

especially egregious in nature, striking at the very heart of the fairness of the judicial

proceeding, to rise to the level of plain error.” Id. at 231.

As we have previously recognized, it is “‘well-established that as a condition

precedent to the introduction of tangible evidence, a witness must be able to identify the

evidence or establish an unbroken chain of custody.”’ State v. Seotr, 33 S.W.3d 746, 760

(Tenn. 2000) (quoting State v. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App.

1998)); see also Tenn R. Evid. 901. This evidentiary rule is designed to insure “‘that

there has been no tampering, loss substitution or mistake with respect to the evidence.”’

Id. (quoting State v. Braa’en, 867 S.W.2d 750, 759 (Tenn Crim. App. 1993)).

Even though each link in the chain of custody should be sufficiently established,

this rule does not require that the identity of tangible evidence be proven beyond all

possibility of doubt; nor should the State be required to establish facts which exclude

every possibility of tampering Scoi‘t, 33 S.W.3d at 760. The State is not required to ca11

every single person who handled the item prior to its admission as evidence. See State v.

Johnson, 673 S.W.2d 877, 881 (Tenn Crim. App. 1984). “Accordingly, when the facts

and circumstances that surround tangible evidence reasonably establish the identity and

integrity of the evidence, the trial court should admit the item into evidence.” State v.

Cannon, 254 S.W.3d 287, 296 (Tenn 2008). However, if the State does not offer

sufficient proof of the chain of custody, the “evidence should not be admitted . . . unless

both identity and integrity can be demonstrated by other appropriate ineans” Scott, 33

S.W.3d at 760 (quoting Neil P. Cohen et. al., Tennessee Law ovaidence § 901.12, at 624

(3d ed. 1995)).

Defendant insists that the chain of custody was not properly established with

regard to the knife and the sweatshirt because the items were sent to the TBl for analysis

on multiple occasions and Agent Castelbuono was only in contact with the evidence on

one of those occasions ln fact, she admitted she had no idea where the evidence had

_11_

been or who had come in contact with it prior to her testing At trial, Agent Castelbuono

testified that the items were submitted for serology testing by another person in the lab at

the TBl before being sent back to the sheriffs office. The items were ultimately returned

to her lab at the TBI for DNA testing, a procedure she claimed was not unusual. Both the

witnesses from the sheriff s office and the witness from the TBl testified as to the chain

of custody procedures they typically followed. None of the witnesses expressed any

inconsistency with their operating procedure with regard to the evidence at issue.

Consequently, Defendant has not shown that the trial court breached a clear and

unequivocal rule of law by admitting the evidence. The testimony provided by the State

was more than enough to “reasonably establish the identity and integrity of the evidence.”

Cannon, 254 S.W.3d at 296. Defendant is not entitled to plain error review of this issue.

As to Defendant’s companionargument that he was improperly cross-examined

about information in the DNA report when he was asked if he “was surprised to hear that

blood or hemoglobin found on the sweatshirt that was taken from [him] and the t-shirt

taken from [him] at the jail matched one blood or hemoglobin stain found on the handle

of the knife,” we determine that there was no abuse of discretion Defendant was not, as

he contends being asked to testify as an expert To the contrary, Defendant was being

cross-examined by counsel for the State. The propriety, scope, manner, and control of

the cross-examination of witnesses rests within the sound discretion of the trial court.

State v. Dz`shman, 915 S.W.2d 458, 463 (Tenn Crim. App. 1995). The trial court did not

abuse its discretion in overruling Defendant’s objection to the State’s cross-examination

Defendant is not entitled to relief on this issue.

111. Facel)ook Posts by Victi)n

Defendant complains that the trial court erred in excluding Facebook posts from

the victim’s Facebook page for impeachment purposes preventing him from presenting a

complete defense. The State disagrees

At trial, during cross-examination counsel for Defendant asked the victim, “[d]o

you consider yourself a peaceful person?” The victim agreed that he considered himself

to be a peaceful person Counsel for Defendant then asked the victim if he was a

peaceful person in 2012, on the specific date of the incident, in 2013, and in 2014. The

victim replied “yes” that he considered himself a peaceful person at all of those times

The State objected “on the basis of relevance.” Counsel for Defendant explained that

Defendant “opened the door” to introduction of Facebook posts that “show just the

opposite of [peacefulness].” The State commented that the Facebook posts are

“absolutely not relevant.” Counsel for Defendant informed the trial court that he is

entitled to “impeach [the victim]. . . if he says he’s a peaceful person” Counsel for

Defendant reminded the trial court that they are “seeking self-defense” so the victim’s

_12-

role as aggressor was “entirely relevant,” and asked the trial court to “admit” the posts or

have the victim identify them. The State argued that “what [the victim’s] posted in the

years since this is absolutely not relevant.” Counsel for Defendant countered that the

victim claimed “he was peaceful before and he’s the same as he was then . . . so [w]hat he

has done after is absolutely relevant to his state of mind and where he has been consistent

throughtout the years.”

The State requested a jury-out hearing, again insisting that the Facebook posts

were “not relevant at all.” The trial court had a jury-out hearing during which counsel for

Defendant moved to introduce Facebook posts from the victim’s personal Facebook page

Defendant argued that the posts were “relevant for a couple of different reasons.”

Counsel for Defendant argued the posts were relevant to “impeach” the victim, and

questioned the victim’s credibility. The State continued to maintain that nothing the

victim posted after the incident was relevant

The trial court excluded the Facebook posts as irrelevant but accepted an offer of

proof. Defendant introduced various Facebook posts from an account that the victim

confirmed belonged to him at the time of the incident The Facebook posts consist

mainly of inemes3 dealing with death, murder, and violence For example, one post

consists of a picture of a white kitten with the caption, “the voices are telling me to kill

you,” while another post consists of a picture of “Grumpy Cat”4 with the caption

“twinkle[,] twinkle little star[,] 1 want to hit you with a car[,] throw you off a tree so

high[,] hope you break your neck and die.” The victim acknowledged that he posted

these items on his Facebook “wall.”

At the conclusion of the offer of proof, Counsel for Defendant argued that the

whole collection of posts should be admitted and in the least, the posts “posted prior to

this incident” should be admitted. The State continued to maintain that the posts were not

relevant The trial court determined that they were ‘fnot relevant.”

ln the written order denying the motion for new trial, the trial court commented

that the Facebook posts were “not relevant.” The trial court also commented that even

“[t]hough some may view some or all of the posts as strange or odd, the posts would not

tend to make the events . . . more or less probable than without the [posts].”

3 A ineine is “an ainusing or interesting item (sucli as a captioned picture or video) or genre of

items that is spread widely online especially through social media.” https://www.merriam-

webster.coin/dictionai'y/ineme (last visited February 21, 2018).

4 “Grumpy Cat” is an actual cat with a perpetually grumpy looking face The cat became an

internet sensation in 2012 and is depicted in numerous memes and official merchandise

https://www.grumpycats.com/ (last visited February 21, 2018).

_ 13 -

Additionally, the trial court noted that “the Facebook posts in and of themselves [were]

not ‘violent’ as argued by the defense, but merely photographs or jokes the victim chose

to post on his Facebook account in the years before and after the night the victim’s throat

was slashed.” Finally, the trial court determined that if the posts were at all relevant, any

relevance would have been outweighed by “the danger of unfair prejudice.”

On appeal, Defendant argues that the Facebook posts were admissible to

“impeach” the victim pursuant to Tennessee Rule of Evidence 404. The State continues

to maintain that the evidence was not relevant Rule 404 applies to situation to rebut

proof with substantive evidence At trial, Defendant asserted that the Facebook posts

were admissible to impeach the victim’s credibility_which is not substantive evidence

and is governed by Tennessee Rule of Evidence 608. Even if the questions about the

victim’s Facebook posts are relevant, Rule 608(b) prohibits using extrinsic evidence to

prove specific instances of conduct Defendant consistently argued at trial that the

Facebook posts were relevant to impeach the victim’s claim that he was a peaceful

person, not to show that he was the first aggressor. Defendant is not permitted to rely

upon a different theory for the admission of evidence than that asserted in the trial court

See e.g., State v. Garland, 617 S.W.2d 176, 186 (Tenn. Crim. App. 1981); Tenn R. App.

P. 36(a) (explaining that “relief may not be granted in contravention of the province of

the trier of fact.”). Thus, Defendant is limited on appeal to challenging the trial court’s

determination that the evidence was not relevant Evidence must be relevant to be

admissible Tenn R. Evid. 402. 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. We agree with the trial court that questions concerning the victim’s Facebook posts

were not relevant to impeach the victim’s testimony of his peacefulness. While the posts

may indicate that the victim has an unusual or even questionable sense of humor, we

decline to see the relevance to the victim’s credibility. The trial court did not abuse its

discretion Defendant is not entitled to relief on this issue

IV. Introduction of Medz`cal Records

Defendant argues on appeal that the trial court improperly excluded the victim’s

medical records when Defendant sought to use the records to impeach the victim’s

testimony under Tennessee Rules of Evidence 608(b) and 609. Defendant also argues

that the trial court limited and restricted his direct and cross-examination of the victim at

trial, preventing him from presenting a complete defense Defendant points to specific

limitations placed on his ability to question the victim about his drug use and medical

records among other things The State counters that Defendant was permitted to

question the victim about his past drug use and psychiatric treatment without the

_14_

introduction of the medical records and that Rule 608(b) prohibits proof of specific

incidents of conduct by extrinsic evidence

At trial, the victim admitted that he drank a few beers on the day of the incident

On cross-examination the victim denied using drugs that day. However, he admitted that

he had “used drugs” in the past Defendant then was allowed to impeach the victim by

asking him about his use of specific drugs Counsel for Defendant specifically asked if

the victim had used the following drugs: marijuana, cocaine, methamphetamine heroin

LSD, PCP, acid, mushrooms Soina, Hydrocodone, Lortabs Oxycodone, Xanax, or

alcohol. Counsel for Defendant next asked the victim if he had attempted suicide four

days prior to the incident and about other details of his psychiatric treatment The victim

denied or could not recall making any statements attributed to him in the medical report

ln return counsel quoted from several passages from the victim’s medical records

indicating that the victim had attempted suicide days prior to the incident and was

regularly abusing drugs

Tennessee Rule of Evidence 608 provides for impeachment of a witness with

specific instances of conduct “for the purpose of attacking or supporting the witness’s

character for truthfulness.” The rule specifically provides that specific instances of

conduct “may not be proved by extrinsic evidence” but, “if probative of truthfulness or

untruthfulness and under the following conditions [may] be inquired into on cross-

examination of the witness concerning the witness’s character for truthfulness or

untruthfulness” Id.

Despite the rule’s prohibition of extrinsic evidence to prove specific instances of

conduct, Defendant nevertheless argues that the trial court improperly excluded the

medical records of the victim. The trial court has discretion to admit evidence at trial.

Rol)i`nson, 146 S.W.3d at 490. The trial court herein properly followed Rule 608(b),

declining to permit introduction of the medical records Defendant was however,

permitted to cross-examine the victim about his statements to medical professionals ln

so doing, counsel for Defendant actually read from the medical records essentially

getting the records into evidence without their admission as an exhibit Moreover, the

medical report was later admitted into evidence during the testimony of a police witness

as a statement for the purpose of medical diagnosis and treatment as well as evidence of a

prior inconsistent statement See Tenn. R. Evid. 613(b), 803(4), 803(6). At that point,

the jury was free to examine the medical records and note any inconsistencies with the

victim’s testimony. Lastly, to the extent that Defendant claims his cross-examination of

the victim was somehow unfairly restricted, the record does not support his claim.

Defendant sought to ask the victim whether he had thoughts about hurting Defendant

after the incident We fail to see how this question is relevant to whether Defendant

-15_

committed the crime for which he was on trial. Defendant has failed to establish that the

trial court abused its discretion Defendant is not entitled to relief on this issue

V. Vz`deotaped State)nent

A. lntrodaction of Malfunetl`onz`ng Vz`deotape

Defendant claims that the videotape of Defendant’s statement malfunctioned

during trial in that the video and audio portions of the tape were “off by a substantial

amount of time.” This was in his viewpoint, unfairly prejudicial under Tennessee Rule

of Evidence 403. Defense counsel requested that the videotape be excluded after it was

shown to the jury and malfunctioned The trial court denied the request and the

subsequent request for a mistrial, instead instructing the jury specifically on how to treat

the videotape as evidence before allowing the jury to view the videotape multiple times in

the jury room.

The jury was excused while the parties discussed the issues When the jury

returned, the trial court commented: §

As you can see, as the video was being played there was a

discrepancy between the video that you saw and the sound that you heard

You will receive an instruction at the end of this case about observing the

demeanor of the witnesses and that sort of thing lt is problematic as far as

what you were observing that Defendant doing or [Lieutenant] Hunt doing

as the questioning was going on

lt was not what was occurring - did not keep in time with what was

being said, and it’s my understanding that from the beginning that’s been

the case So you’ll just have to keep that in mind as you go through your

deliberations l’m going to go ahead and we’re going to continue to play

the - 1 think there’s just a little bit left of the audio. We’re not going to look

at the video at this time

During a jury-out hearing, the trial court ruled that the recording was properly

authenticated and admitted as an exhibit The trial court stated the following during the

hearing:

A technical glitch resulted in the audio and video not being in sync with

each other unbeknownst to those watching until close to the conclusion of

the recording

_16_

The two detectives and Defendant began to exit the interview room

while the audio portion continued lt’s a matter of a few seconds

difference Defense counsel has expressed concern about as far as

observing the demeanor of Defendant during the questioning based on it

being - his demeanor may be in response to a different question than what

may have been intended based on viewing the video.

l’m going to keep the video as it is lt’s certainly going to be able to

go back with the jury at the conclusion of the trial. This exhibit like any

other can be reviewed and watched by them as many times as they like

Should they go back and deliberate and want to see the video, then they’ll

come back in to the courtroom. l’m going to assign either [the in-court

clerk] or someone else that’s independent that can operate this equipment

will be available to let them watch that as many times as they want

[The in-court clerk] will be instructed not to discuss it with any other

person the deliberations or anything like that sort that he might hear during

the video should they choose to watch it. Unfortunately, again there was a

glitch there, but 1 don’t think there’s going to be any prejudice to the

Defendant based on this

1 will also give an instruction when they come back just kind of

touching base on - l’m going to use the Defendant’s statement instruction

just to kind of show them at this time it’s basically their call how much

weight to give it based on what they heard, what they could hear based on

this recording So that’s my ruling with respect to that issue

Again relevant evidence is that “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. Where the

probative value of relevant evidence is substantially outweighed by the danger of unfair

prejudice it may be inadmissible Tenn R. Evid. 403. ln this case, however, the trial

court determined that the evidence was more probative than prejudicial. We agree The

tape, even if “out of sync” for a few seconds accurately represented the interview with

Defendant and did not delete any words/phrases or images The trial court did not abuse

its discretion in admitting the videotape

B. Jury Instruetz`on Related to Tape Insayj”lcz'ent to Cure Error

Defendant citing only Defendant’s “constitutional right to a correct and complete

charge of the law” also complains about the trial court’s curative jury instruction

_17_

insisting that it was not sufficient to overcome the prejudice suffered by Defendant. The

State disagrees

At trial, after the trial court determined that the videotaped statement was

admissible the trial court informed the jury that they were going to receive an instruction

regarding the videotaped statement immediately prior to viewing the videotape and at the

conclusion of the proof prior to deliberations The trial court instructed the jury that the

statement was ruled admissible, but reminded the jury that they were charged with

“judg[ing] its truth.” The trial court commented to the jury:

You must consider all the statements made by Defendant, whether

favorable or unfavorable to hiin, and you must not disregard any of them

without good reason . . .

You are the sole judges of what weight should be given to those

portions of the statement which you believe, and you should consider them

along with all other evidence in the case in determining . . . guilt or

innocence

[Y]ou’ll get a copy of all exhibits This disk will go back . . . and

you’ll have a chance to . . . watch this video again . . .

lt will be made available to you. lf you would like, once you go

back to deliberate, to watch that video, we’ll bring you back. We’ll clear

the courtroom, other than [the in-court officer], and he’ll play it for you and

you can watch it to your heart’s content . . .

At the conclusion of the proof, the trial court again instructed the jury as follows:

Evidence of a statement by the Defendant has been introduced in this case

The court has ruled that the statement is admissible in evidence, but

it is your duty to judge its truth. ln so judging, you should consider the

circumstances under which the statement was obtained as well as any

evidence which contradicts all or part of the statements made You must

consider all the statements made by the Defendant whether favorable or

unfavorable to hiin and you must not disregard any of them without good

reason lf the evidence in the case leads you to believe that the statement or

_13_

any part of it is untrue or was never made, you should disregard it or that

portion which you do not believe

You are the sole judge of what weight should be given to those

portions of the statement which you believe, and you should consider them

along with all other evidence iii the case in determining the Defendant’s

guilt or innocence

A trial court has a “duty to give a complete charge of the law applicable to the

facts of the case.” State v. Harrz's, 839 S.W.2d 54, 73 (Tenn 1992). Anything short ofa

complete charge denies a defendant his constitutional right to trial by a jury. State v.

McAfee, 737 S.W.2d 304, 308 (Tenn Crim. App. 1987). However, Tennessee law does

not mandate that any particular jury instructions be given so long as the trial court gives a

complete charge on the applicable law. See State v. West, 844 S.W.2d 144, 151 (Tenn.

1992). A trial court commits prejudicial error “if it fails to fairly submit the legal issues

or if it inisleads thejury as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352

(Tenn 1997) (citing State v. Forl)es, 918 S.W.2d 431, 447 (Tenn Crim. App. 1995);

Grahain v. State, 547 S.W.2d 531 (Tenn. 1977)). ln determining whether jury

instructions are erroneous this Court must review the charge in its entirety and invalidate

the charge only if, when read as a whole, it fails to fairly submit the legal issues or

inisleads the jury as to the applicable law. State v. Vann, 976 S.W.2d 93, 101 (Tenn

1998). Because the resolution of issues regarding jury instructions is a mixed question of

law and fact, the standard of review is de novo, with no presumption of correctness

State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

We conclude that the trial court’s instruction adequately addressed the

sound/picture anomaly on the videotape We have viewed the videotape multiple times

with no issues However, despite our inability to replicate the anomaly that apparently

occurred at trial, we acknowledge that the trial court instructed the jury to independently

judge the credibility of the statement The jury is presumed to follow the trial court’s

instructions State v. Walker, 910 S.W.2d 381, 397 (Tenn. 1995). Defendant is entitled

to a fair trial, not a perfect one. State v. Davidson, 509 S.W.3d 156, 193 (Tenn 2016)

(citing Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); State v. Hutchison, 482

S.W.3d 893, 921 (Tenn. 2016)). The trial court’s instruction was adequate to address any

anomaly on the videotape Defendant is not entitled to relief on this issue

C. Error in Permz'ttz'ng Tape to be Shown Malz‘z`ple Tz'mes

Without citing to authority to support his proposition Defendant argues that the

trial court erred by allowing the jury to view the videotaped statement multiple times He

_]9_

claims this practice was prejudicial, especially in light of the fact that court personnel

were inside the room during deliberations while the videotape was shown multiple times

When the jury retired to deliberate they immediately asked to watch the

videotape The in-court officer, Deputy Evan Davenport was charged with the operation

of the playback equipment Deputy Davenport testified at the hearing on the motion for

new trial that he played the videotape approximately ten times while jurors watched in

groups of three or four. About half of the time, the videotape malfunctioned so that the

audio and video portions were not in sync with each other. The jury foreman Tony

Collins, explained that all of the jury wanted to re-watch the video because it was a key

piece of evidence Additional jurors l\/lartha Holliday and Janice Miller complained that

the jury needed to watch the videotape several times because it was difficult to hear

during trial.

Defendant has waived this issue for failure to cite authority to support his

proposition See Tenn Ct. Crim. App. R. 10(b) (“lssues which are not supported by

argument citation to authorities or appropriate references to the record will be treated as

waived in this court.”). l\/loreover, Defendant would not be entitled to relief. Tennessee

Rule of Criminal Procedure 30.1 provides that “[u]nless for good cause the court

determines otherwise the jury shall take to the jury room for examination during

deliberations all exhibits and writings except depositions that have been received in

evidence.” We have already determined that the trial court properly admitted the

videotaped statement into evidence Further, Defendant did not object to this procedure

at the time of the viewing of the videotape by the jury.5 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.” . The trial court did not err by

permitting the jury to view the properly admitted exhibit in the jury room during

deliberation

D. Faz'lure to Grant Mz'sm`al

5 We are aware that after the trial in this matter, the Tennessee Supreme Couit decided in

Davidson that “when a jury requests to view or hear evidence that cannot be appropriately examined in

the jury room, the trial court should bring the jury into the courtroom with the parties and counsel present

to view the evidence.” 509 S.W.3d at 204. ln this case, the jury viewed the videotape in the couitroom

where the equipment was located, albeit without the presence of counsel or the parties The in-court

officer was the only person present other than the jury. There was no objection made to this procedure by

Defendant. Additionally, the iii-court officer testified that he did not hear deliberations and merely

operated the equipment so that the jury could view the videotape Thus any error in this procedure was

harmless

_ 20 _

Though not addressed separately, Defendant argues tangentially that the trial court

erred in refusing to grant a mistrial after permitting the jury to review the tape despite its

malfunction Defendant insists that the malfunctioning of the videotape led to a manifest

necessity for a mistrial. The State on the other hand, insists that a mistrial was not the

proper remedy.

The determination of whether to grant a mistrial rests within the sound discretion

of the trial court State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing

court should not overturn that decision absent an abuse of discretion State v. Brown, 53

S.W.3d 264, 284 (Tenn. Crim. App. 2000). A mistrial is an appropriate remedy when the

trial cannot continue or a miscarriage of justice would result if it did. State v.

McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The party seeking the

mistrial has the burden of establishing the necessity for it. State v. Williams, 929 S.W.2d

385, 388 (Tenn Crim. App. 1996).

We have already determined that the videotape statement was properly admitted

into evidence that the trial court did not err by permitting the jury to view the tape

multiple times and that the trial court properly issued a curative jury instruction to deal

with the allegedly malfunctioning videotape Defendant has failed to establish that a

mistrial was necessary. The trial court did not abuse its discretion in refusing to grant a

mistrial. Defendant is not entitled to relief on this issue

V[. Denl'al of Mistrz'al After linproper Jury Conduct

Defendant insists that he was prejudiced because the jury engaged in deliberations

prior to being instructed to do so by the trial court To support his argument Defendant

points to the fact that the jury retired to deliberate and almost immediately asked to see

the videotaped statement Defendant insists that the jury asked to see the videotape prior

to electing a foreman Defendant argues that the prejudice arose because the trial court

did not hold a hearing to determine whether there was actual jury misconduct Defendant

also insists that court personnel influenced the jury verdict because they were present

during deliberations to monitor the playback of the videotape of Defendant’s statement

The State disagrees

Under both the Sixth Amendment to the United States Constitution and Article l,

section 9 of the Tennessee Constitution every criminal defendant has the right to a trial

by an impartial jury. State v. Ada)ns, 405 S.W.3d 641, 650 (Tenn 2013) (citing State v.

Sexton, 368 S.W.3d 371, 390 (Tenn. 2012)). “Jurors must render their verdict based only

upon the evidence introduced at trial, weighing the evidence in light of their own

experience and knowledge” Id. (citing Cala’araro ex rel Caldararo v. Vanderbz'lt Univ.,

794 S.W.2d 738, 743 (Tenn Ct. App. 1990)). lf the jury has been exposed to extraneous

_21_

prejudicial information or subjected to an improper outside influence the validity of the

verdict is questionable and a new trial may be warranted Id. (citing State v. Blackwell,

664 S.W.2d 686, 688 (Tenn. 1984)).

“A party challenging the validity of a verdict must produce admissible evidence to

make an initial showing that the jury was exposed to extraneous prejudicial information

or subjected to an improper outside influence.” Id. at 651 (citing Caldararo, 794 S.W.2d

at 740-41). Once such a showing has been made “a rebuttable presumption of prejudice

arises and the burden shifts to the State to introduce admissible evidence to explain the

conduct or demonstrate that it was harmless.” Id. (citing Walsh v. State, 166 S.W.3d 641,

647 (Tenn 2005)). Whether the constitutional right to an impartial jury has been violated

is a mixed question of law and fact which we review de novo, granting a presumption of

correctness only to the trial court’s findings of fact Id. at 656 (citing Fields, 40 S.W.3d

at 45 8).

“[A] defendant is entitled to a fair trial, not a perfect trial, and our ultimate inquiry

is whether the jury that tried the case was actually fair and impartial.” State v. Leaz‘h, 461

S.W.3d 73, 110-11 (Tenn Crim. App. 2013) (internal quotation omitted). “lt is virtually

impossible to shield jurors from every contact or influence that might theoretically affect

their vote Thus, it would be unreasonable and perhaps unwise to expect juries to be

completely sterilized and free of any external influences.” Caldararo, 794 S.W.2d at

743-44 (citing Smith v. th‘llz`ps, 455 U.S. 209, 217 (1982)). Thus our courts have

generally defined extraneous prejudicial information as information “coming from

without,” or more specifically as “information in the form of either fact or opinion that

was not admitted into evidence but nevertheless bears on a fact at issue in the case.”

Adams, 405 S.W.3d at 650 (citations omitted). Similarly, an improper outside influence

has been defined as “any unauthorized private communication contact or tampering

directly or indirectly, with a juror during a trial about the matter pending before the jury.”

Id. at 650-51 (internal quotation omitted). These categories “often overlap” and may be

considered together. Neil P. Cohen et al., Tennessee Law ovaz`denee § 6.06[6], at 6-54

(5th ed 2005) (citing Blackwell, 664 S.W.2d at 688-89). However, Tennessee courts

have drawn a “dis'tinction between extrinsic and intrinsic influence” on the jury.

Caldararo, 794 S.W.2d at 742. “External influences that could warrant a new trial if

found to be prejudicial include: (l) exposure to news items about the trial, (2)

consideration of facts not admitted in evidence and (3) communications with non-jurors

about the case.” Id. (citations omitted). On the other hand, internal influences such as

“(1) discussions among jurors (2) intimidation or harassment of one juror by another, (3)

a juror’s personal experiences not directly related to the litigation and (4) a juror’s

subjective thoughts fears and emotions” are not reason enough for a new trial. Id.

(citations omitted).

_22_

Tennessee Rule of Evidence 606(b) provides clear guidance on the type of

evidence that is admissible when challenging a jury’s verdict:

Upon an inquiry into the validity of a verdict or indictment a juror may not

testify as to any matter or statement occurring during the course of the

jury’s deliberations or to the effect of anything upon any juror’s mind or

emotions as influencing that juror to assent to or dissent from the verdict or

indictment or concerning the juror’s mental processes except that a juror

may testify on the question of whether extraneous prejudicial information

was improperly brought to the jury’s attention whether any outside

influence was improperly brought to bear upon any juror, or whether the

jurors agreed in advance to be bound by a quotient or gambling verdict

without further discussion nor may a juror’s affidavit or evidence of any

statement by the juror concerning a matter about which the juror would be

precluded from testifying be received for these purposes

“The rule precludes inquiries into the jury’s deliberative process while allowing juror

testimony concerning objective incidents or events that constitute external or extraneous

influences on the jury.” Caldararo, 794 S.W.2d at 742. ln other words “a juror may

testify to any facts bearing upon the question of the existence of any extraneous

influence although not as to how far that influence operated upon his mind.” Walsh, 166

S.W.3d at 649 (internal quotation omitted). The rationale behind this rule has been

explained as follows:

[Rule] 606(b) represents a compromise between important public policies

lt enables the courts to protect the litigants from verdicts tainted by

extraneous prejudicial information or outside influence At the same time

it recognizes the importance of the inviolate nature of a jury’s deliberations

. . . . Thus it insures that jurors will not be guarded in their deliberations for

fear of later scrutiny by others lt also prevents jurors whose views are in

the minority from manipulating the system by repudiating the verdict and

thereby requiring a new trial.

Caldararo, 794 S.W.2d at 741-42; see also Carrathers v. State, 145 S.W.3d 85, 92-93

(Tenn. Crim. App. 2003) (noting that the public policy considerations behind Rule 606(b)

“include the prevention of jury harassment encouragement of free and open jury

deliberation promotion of finality of verdicts and the reduction of the incentive for jury

tampering”).

As an initial matter, Defendant has failed to produce any evidence to make the

initial showing that the jury was exposed to extraneous prejudicial information or

_23_

subjected to an improper outside influence See Adams, 405 S.W.3d at 651. The record

reflects that the jury was sent to deliberate at 3:10 p.m. Soon thereafter, the in-court

officer reported that the jurors requested to see the videotaped statement The jury

returned to the courtroom at 3 : 12 p.m. At the hearing on the motion for new trial, Deputy

Davenport opined that it was impossible for the jury to elect a foreman between 3:10 and

3:12 p.m. Chief Deputy Eugene Roberts recalled that the jury room door did not even

fully shut prior to the jury making the request to see the videotape However, Chief

Roberts thought that the request was made by Tony Collins the foreman of the jury. l\/lr.

Collins testified that he could not recall how long after they retired that he was elected

foreman At least three other jurors including l\/lartha Holiday, Tina Grishain and Ricky

Brown testified at the hearing on the motion for new trial and confirmed that the jury

elected the foreman soon after retiring to deliberate There was no testimony at the

hearing that the jurors were exposed to any outside influence or extraneous prejudicial

information or that the jury began deliberations before directed to do so. The trial court

specifically credited the testimony of the court officer, the deputy clerk, and the jurors in

this regard The trial court determined that there was no proof of juror misconduct or

improper deliberation finding that Deputy Davenport “had no discussions with the jury

other than playing the videotape at the jury’s direction” as instructed by the trial court.

Defendant did not establish an improper outside influence which would raise a

presumption of prejudice thus the burden never shifted to the State to rebut such a

presumption Adams, 405 S.W.3d at 651. Defendant is not entitled to relief on this issue

VII. Newly Dz'scovered Evz`dence

Defendant argues that the victim’s impact statement in the presentence report

completely contradicts the victim’s trial testimony and qualifies as newly-discovered

evidence that would warrant a new trial. Without explaining the contradiction Defendant

insists that he is entitled to a new trial.

At trial, the victim testified that he was sitting around the campfire when

Defendant attacked him. The victim testified that he could not recall stating to a

psychiatrist that Defendant “touched his head,” which made him angry and led to a fight

The victim could not recall Defendant “touching” him on the night of the incident ln the

presentence report the victim impact statement completed by the victiin described the

incident as follows:

l was around a camp fire drinking a beer waiting on my friends to get back

from the store when [Defendant] came up to me the first time [and] played

with my hair[.] l didn’t think anything of it [and] went back to drinking

beer. [Defendant] came up a second time and cut my throat

_24_

When a defendant seeks relief in a motion for a new trial based upon newly

discovered evidence the defendant must show that he exercised “reasonable diligence in

seeking the newly discovered evidence” that the evidence is material, and “that the

evidence will likely change the result of the trial.” State v. Nichols, 877 S.W.2d 722, 737

(Tenn. 1994); see State v. Goswick, 656 S.W.2d 355, 358-60 (Tenn. 1983). Generally,

evidence that only “contradicts or attempts to impeach” witness testimony is insufficient

to entitle a defendant to a new trial. State v. Shey§fzeld, 676 S.W.2d 542, 554 (Tenn.

1984). Nevertheless, a trial court may grant a request for a new trial “if the impeaching

evidence is so crucial to the defendant’s guilt or innocence that its admission will

probably result in an acquittal.” State v. Singlei‘on, 853 S.W.2d 490, 496 (Tenn 1993).

The decision to grant or to deny a motion for a new trial on the basis of newly discovered

evidence is “within the sound discretion of the trial court.” State v. Caldwell, 977 S.W.2d

110, 117 (Tenn. Crim. App. 1997) (citing Hawkz'ns v. State 417 S.W.2d 774, 778 (Tenn.

1967)).

We determine that the trial court did not abuse its discretion in refusing to grant a

new trial on the basis of newly discovered evidence The victim was impeached at trial

when he failed to recall that he had made statements to a psychiatrist about Defendant

touching his hair prior to the attack. The victim’s impact statement was consistent with

the statements made to the psychiatrist thus it was not new evidence Moreover, the

evidence if considered impeaching, was not so crucial that it would probably result in an

acquittal. Singleton, 853 S.W.2d at 496. Defendant is not entitled to relief on this issue

VIII. Jury Instructz`ons

Defendant argues that the trial court erred by giving the jury an instruction on

flight where the proof did not support the instruction The State insists that the facts at

trial supported the instruction

A defendant in a criminal case “has a right to a correct and complete charge of the

law, so that each issue of fact raised by the evidence will be submitted to the jury on

proper instructions.” State v. Garrison, 40 S.W.3d 426, 432 (Tenn 2000); see State v.

Leatlz, 461 S.W.3d 73, 105 (Tenn. Crim. App. 2013). When reviewing jury instructions

on appeal to determine whether they are erroneous this Court must “review the charge in

its entirety and read it as a whole.” Hodges, 944 S.W.2d at 352. A jury instruction is

considered “prejudicially erroneous” only “if it fails to fairly submit the legal issues or if

it inisleads the jury as to the applicable law.” Id. Because the propriety of jury

instructions is a mixed question of law and fact the standard of review is de novo with no

presumption of correctness Carpenter v. State 126 S.W.3d 879, 892 (Tenn 2004);

Smiley, 38 S.W.3d at 524.

_25-

The trial court provided the jury with the following jury instruction on flight:

The flight of a person accused of a crime is a circumstance which

when considered with all the facts of the case may justify an inference of

guilt Flight is the voluntary withdrawal of oneself for the purpose of

evading arrest or prosecution for the crime charged Whether the evidence

presented proves beyond a reasonable doubt that the defendant fled is a

question for your determination

The law makes no precise distinction as to the manner or method of

flight it may be open or it may be a hurried or concealed departure or it

may be a concealment within the jurisdiction However it takes both a

leaving the scene of the difficulty and a Subsequent hiding out evasion or

concealment in the community, or a leaving the community for parts

unknown to constitute flight

lf flight is proved, the fact of flight alone does not allow you to find

that the defendant is guilty of the crime alleged However, since flight by a

defendant may be caused by a consciousness of guilt you may consider the

fact of flight if flight is so proven together with all the other evidence

when you decide the guilt or innocence of the defendant On the other

hand, an entirely innocent person may take flight and such flight may be

explained by proof offered, or by the facts and circumstances of the case

Whether there was flight by the defendant the reasons for it and the

weight to be given to it are questions for you to determine

“ln order for a trial court to charge the jury on flight as an inference of guilt there

must be sufficient evidence to support such instruction” State v. Berry, 141 S.W.3d 549,

588 (Tenn 2004). Sufficient evidence exists supporting a jury instruction on flight where

there is evidence of both a leaving the scene of the crime and subsequently hiding in the

community. State v. Bnrns, 979 S.W.2d 276, 289-90 (Tenn 1998).

satisfy the subsequent hiding requirement by presenting proof from which a jury might

infer that the defendant committed this act State v. Terranee Wilks, No. W1999-00279-

CCA-R3-CD, 1999 WL 1097832, at *4 (Tenn. Crim. App. Nov. 22, 1999), no perm app

fled Even a brief evasion of authorities can support the giving of the flight instruction

State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989).

The State may

We conclude that the trial court properly instructed the jury as to the flight The

evidence at trial showed that Defendant cut the victim then left the fire walked to his

house grabbed his coat and his medicine and hid out in the woods and barn until after

_26_

the ambulance took the victim from the scene While Defendant eventually surrendered

to police the evidence is sufficient to support the flight instruction because it shows that

Defendant left the scene of the crime and hid to avoid being arrested for this crime

Accordingly, the trial court did not err in instructing the jury on flight Defendant is not

entitled to relief as to this issue

[X Denz`al of Moz‘z'on for Judgment of Acquittal/Sujj”zciency of the Evz'dence

Defendant alleges that the trial court erred in denying the motion for judgment of

acquittal both at the conclusion of the State’s proof and at the conclusion of the proof at

trial. Defendant also claims that the evidence is insufficient to support the conviction for

attempted second degree murder. Specifically, Defendant insists that “[a]ll credible facts

set forth in the record support [Defendant’s] version of the events at issue and not that of

[the victim].”

Because “[t]he standard by which the trial court determines a motion for judgment

of acquittal at the end of all the proof, is in essence the same standard which applies on

appeal in determining the sufficiency of the evidence after a conviction” we will resolve

both Defendant’s challenge to the denial of the motion for judgment of acquittal and

sufficiency of the evidence together. State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn

Crim. App. 2000). When a defendant challenges the sufficiency of the evidence this

Court is obliged to review that claim according to certain well-settled principles A

guilty verdict removes the presumption of innocence and replaces it with a presumption

of guilt State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to

the defendant on appeal to demonstrate why the evidence is insufficient to support the

conviction State v. Taggle, 639 S.W.2d 913, 914 (Tenn. 1982). The relevant question

the reviewing court must answer is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt See Tenn R.

App. P. l3(e); Jackson v. Vz'rgz`nz`a, 443 U.S. 307, 319 (1979). On appeal, “the State is

entitled to the strongest legitimate view of the evidence and to all reasonable and

legitimate inferences that may be drawn therefrom.” State v. Elkz`ns, 102 S.W.3d 578,

581 (Tenn. 2003). As such, this Court is precluded from re-weighing or reconsidering

the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380,

383 (Tenn. Crim. App. 1996); State v. Matl‘hews, 805 S.W.2d 776, 779 (Tenn Crim.

App. 1990). l\/loreover, we may not substitute our own “inferences for those drawn by

the trier of fact from circumstantial evidence” Matthews, 805 S.W.2d at 779. Further,

questions concerning the credibility of the witnesses and the weight and value to be given

to evidence as well as all factual issues raised by such evidence are resolved by the trier

of fact and not the appellate courts State v. Praetz, 788 S.W.2d 559, 561 (Tenn 1990).

“The standard of review ‘is the same whether the conviction is based upon direct or

_27_

circumstantial evidence”’ State v. Doranz‘es, 331 S.W.3d 370, 379 (Tenn 2011)

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

Defendant was convicted of attempted second degree murder. Second degree

murder is defined as the “knowing killing of another.” T.C.A. § 39-13-210(a)(1). “A

person acts knowingly with respect to a result of the person’s conduct when the person is

aware that the conduct is reasonably certain to cause the result T.C.A. § 39-11-302(b).

Criminal attempt requires a defendant to act “with the kind of culpability otherwise

required for the offense . . . [and] with intent to cause a result that is an element of the

offense and believe[] the conduct will cause the result without further conduct on the

person’s part.” T.C.A. § 39-12-101(a)(2).

Viewed in the light most favorable to the State the proof showed that Defendant

approached the unarmed victim from behind and cut his throat from ear to ear. Judith

Brown came outside when she saw Defendant and the victim struggling and separated the

two men The victim ran to Judith Brown’s house where he collapsed He was flown to

Nashville based on the severity of his injuries During his statement Defendant claimed

that he “cut the fat piece of shit” for throwing bottles at “old people” Defendant told

police that the victim did not try to attack him. However, at trial, Defendant claimed self-

defense insisting that the victim came at him with a machete Defendant also points to

inconsistencies between the victim’s testimony at trial, where he alleged Defendant

attacked him with no warning, and the victim’s statements to psychiatrists at Vanderbilt,

where he alleged that Defendant touched his hair to start the incident to support his

argument that the evidence was insufficient Nevertheless the jury chose to accredit the

victim’s version of events As we have reiterated time and time again the determination

of issues of witness credibility and the resolution of conflicts in testimony rest squarely

within the province of the jury. Bland, 958 S.W.2d at 659. Defendant is not entitled to

relief on this issue

X. Sentencz`ng

Defendant complains that his sentence is illegal because it was excessive and

because he did not receive probation Defendant cites Tennessee Rule of Criminal

Procedure 36.1 to support his argument The State claims that Defendant waived the

issue for failure to include a copy of the transcript from the sentencing hearing in the

record However, the trial court supplemented the record with‘ two transcripts from the

sentencing hearing Therefore we will consider the sentencing issue

A. Length

_28_

When a defendant challenges the length or manner of service of a within-range

sentence this Court reviews the trial court’s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness State v. Caadle, 388 S.W.3d

273, 278-79 (Tenn 2012); State v. Bz`se, 380 S.W.3d 682, 708 (Tenn. 2012). This

presumption applies to “within-range sentencing decisions that reflect a proper

application of the purposes and principles of the Sentencing Act.” Bz`se, 380 S.W.3d at

707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an

injustice to the party complaining.” State v. Shack, 953 S.W.2d 662, 669 (Tenn 1997)

(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn 1996)). The defendant bears the

burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sent. Comm’n

Cmts.

ln reaching its decision the trial court must consider the following factors: (1) the

evidence if any, received at the trial and the sentencing hearing; (2) the presentence

report; (3) the principles of sentencing and arguments as to sentencing alternatives (4)

the nature and characteristics of the criminal conduct involved; (5) evidence and

information offered by the parties on enhancement and mitigating factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement by the defendant in his own

behalf; and (8) the potential for rehabilitation or treatment See T.C.A. § 40-35-102, -

103, -210(b); see also Bz`se, 380 S.W.3d at 697-98. Additionally, the sentence imposed

“should be no greater than that deserved for the offense committed” and also “should be

the least severe measure necessary to achieve the purposes for which the sentence is

imposed.” T.C.A. § 40-35-103(2), (4).

This Court will uphold the sentence “so long as it is within the appropriate range

and the record demonstrates that the sentence is otherwise in compliance with the

purposes and principles listed by statute.” Bz'se, 380 S.W.3d at 709-10. The weighing of

various enhancement and mitigating factors is within the sound discretion of the trial and

we will not disturb the sentence even if we had preferred a different result See State v.

Carz‘er, 254 S.W.3d 335, 346 (Tenn. 2008).

At the sentencing hearing, the victim testified at length as to his continued health

issues as a result of his injury. The victim testified that he had constant numbness in his

face and neck along with a large scar that spanned from one ear to the other. The victim

claimed that his injury forced him to quit at least one job and hampered his ability to

secure additional employment The victim acknowledged his past drug and alcohol

problems but explained that he had been sober since the night of the incident

_29_

Defendant’s sister testified as to his “peaceful” nature Defendant’s fiancee

Jacqueline Atwood testified that Defendant was “compassionate, funny, kind, and

caring.” Defendant relayed his numerous health issues to the trial court including the

fact that he had a knee replacement and was injured in a car accident when he was “really

young.” Defendant informed the trial court that he had a pretty complete employment

history. Defendant acknowledged that he had a cocaine possession charge in California

in 1993 but stated that he had not used drugs since completing a “challenge” program in

1997. Defendant did not express remorse for his actions maintaining that he and the

victim argued after Defendant touched the victim’s hair and the victim said something

about Defendant’s wife

The trial court discussed the mitigating factors proposed by Defendant and the

enhancement factors proposed by the State The trial court determined that there were

not “any mitigating or enhancing factors that apply given the facts in this case.” The trial

court found Defendant was a Range l, standard offender and imposed a sentence of ten

years which is within the appropriate range and is presumed reasonable See T.C.A. §

40-35-112(a)(2) (listing sentencing range of “not less than eight (8) nor more than twelve

(12) years” for a Class B felony). The trial court discussed the average sentence of all “B

felony” offenses and sentenced Defendant to a inid-range sentence of ten years

C)ther than complaining about the fact that his sentence was “not in accordance

with the applicable sentencing statutes” and “excessive” Defendant has not shown that

the trial court abused its discretion in sentencing him to an effective sentence often years

Defendant is not entitled to relief on this issue

B, Probatz'on

Defendant was eligible for probation on his attempted second degree murder

conviction because the trial court imposed a sentence of ten years or less See T.C.A. §

40-35-303(a). Attempted second degree murder, however, is a Class B felony, see

T.C.A. §§ 39-13-210(0), 39-12-107(a), so Defendant was not considered a favorable

candidate for probation See T.C.A. § 40-35-102(6) (providing that a defendant “who is

an especially mitigated or standard offender convicted of a Class C, D or E felony, should

be considered as a favorable candidate for alternative sentencing options in the absence

of evidence to the contrary”). l\/loreover, no criminal defendant is automatically entitled

to probation as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn 1997).

lnstead, the defendant bears the burden of proving his or her suitability for alternative

sentencing options State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A. §

40-35-303(b)). To do so, the defendant must show the alternative sentencing option

imposed “will subserve the ends of justice and the best interests of both the public and the

-30_

defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn 1956), overruled on other

grounds State v. Hooper, 29 S.W.3d l, 9-10 (Tenn. 2000).

Further, “convicted felons committing the most severe offenses possessing

criminal histories evincing a clear disregard for the laws and morals of society and

evincing failure of past efforts at rehabilitation shall be given first priority regarding

sentencing involving incarceration” T.C.A. § 40-35-102(5). Before imposing a sentence

of full confinement the trial court should consider whether:

(A) Confinement is necessary to protect society by restraining a defendant

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses or

(C) l\/leasures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C). Our Supreme Court has noted that:

Actions that are the result of intentional, knowing, or reckless behavior . . .

are probably more deterrable than those which are not the result of a

conscience effort to break the law. lndeed, this is the very rationale that

underlies the deterrence aspect of punitive damages in tort law. See Hodges

v. S.W. Toof& Co., 833 S.W.2d 896, 901 (Tenn 1992). Common sense

tells us that we may have less ability to deter crimes which are the result of

provocation sudden and extreme passion or even negligent behavior,

irrespective of whether others who commit similar crimes are incarcerated

or given probation

State v. Hooper, 29 S.W.3d 1, 11 (Tenn 2000). ln addition the sentence imposed should

be (l) “no greater than that deserved for the offense cominitted,” and (2) “the least severe

measure necessary to achieve the purposes for which the sentence is imposed.” T.C.A. §

40-35-103(2), (4). The party appealing a sentence bears the burden of establishing that

the sentence was improper. T.C.A. § 40-35-401, Sent. Comm’n Cmts Again we review

a trial court’s sentencing determinations including a denial of probation or another

alternative sentence under an abuse of discretion standard, and grant a presumption of

reasonableness to within-range sentences reflecting an appropriate application of the

purposes and principles of the Sentencing Act. Caudle, 388 S.W.3d at 278-79.

“lf the seriousness of the offense forms the basis for the denial of alternative

sentencing, Tennessee courts have held that the circumstances of the offense as

_31_

committed must be especially violent horrifying, shocking, reprehensible offensive or

otherwise of an excessive or exaggerated degree and the nature of the offense must

outweigh all factors favoring a sentence other than confinement.” State v. Trotter, 201

S.W.3d 651, 654 (Tenn 2006) (quotations omitted). Our Supreme Court recently

addressed the propriety of denying probation based on the seriousness of the offense in

State v. Trent, 533 S.W.3d 282, 292-93 (Tenn 2017). When doing so, the court noted “a

trial court may not consider factors that constitute elements of the offense in determining

whether the circumstances of an offense are sufficient to deny an alternative sentence”

Id. at 293 (citation and internal quotations omitted). Therefore when denying probation

on the sole basis of the offense itself, “the circumstances of the o]j‘"ense as particularly

committed in the case under consideration must demonstrate that the defendant

committed the offense in some manner more egregious than is contemplated simply by

the elements of the offense.” Id. at 292-93. This necessarily requires the trial court to

examine and make findings regarding the particular circumstances surrounding the

defendant’s commission of the convicted offenses

At the hearing, the trial court went on to deny probation in order to avoid

depreciating the seriousness of the offense The trial court acknowledged that Defendant

“might be able to successfully complete a probationary sentence” but noted that “[l]ife

[was] tough enough [for the victim] without having the added insult of having a so[-

jcalled Columbian necktie scar around your neck.” The trial court ultimately determined

that the “seriousness of the offense overrides any and all potential that [Defendant] might

have to serve this sentence on probation” When doing so, the trial court found any

factors supporting the appropriateness of probation were heavily outweighed by the facts

and circumstances surrounding the offense and the nature of the criminal conduct which

included the severity and brutality of the victim’s `injury.

The trial court did not base its denial of probation for the attempted second degree

murder conviction solely on the elements of that offense lnstead, the trial court denied

the defendant probation to avoid depreciating the seriousness of offense and to provide

effective deterrence to others likely to commit similar offenses ln the course of its

ruling the trial court properly examined and made findings regarding the egregious

circumstances of the crimes “[A] trial court’s decision to grant or deny probation will

not be invalidated unless the trial court wholly departed from the relevant statutory

considerations in reaching its determination” State v. Sihapanya, 516 S.W.3d 473, 476

(Tenn 2014) (per curiam). Based on our review of the record, the victim suffered a life

threatening injury, had to be flown to Nashville for treatment and experienced continued

health problems as a result of his injury. Consideration as to whether confinement is

necessary to avoid depreciating the seriousness of the offense and/or particularly suited to

provide effective deterrence to others likely to commit similar offenses are valid

_32_

considerations under Tennessee Code Annotated section 40-35-103. Defendant is not

entitled to relief on this issue

Concltision

F or the foregoing reasons the judgment of the trial court is affirmed

Tll\/IOTHY L. EASTER, JUDGE

-33_