State of Tennessee v. Antoine Dewayne Clark

01/31/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 15, 2018

STATE OF TENNESSEE v. ANTOINE DEWAYNE CLARK

Appeal from the Criminal Court for Davidson County

No. 2015-D-2592 Monte Watkins, Judge

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No. M2017-02525-CCA-R3-CD

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A jury convicted the Defendant, Antoine Dewayne Clark, of aggravated arson, and he

was sentenced to serve thirty years in prison. On appeal, he alleges that the trial court

erred in limiting defense counsel’s questions during voir dire; in allowing testimony

regarding the injuries suffered by the victims; in denying a mistrial based on the

introduction of evidence that the Defendant was wearing an ankle monitor; and in

permitting hearsay testimony. After a thorough review of the record, we affirm the

judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Marie Stacey (at trial and on appeal) and Frank Brazil (at trial), Nashville, Tennessee, for

the appellant, Antoine Dewayne Clark.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; Glenn Funk, District Attorney General; and Roger Moore, Deputy

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The evidence at trial showed that the Defendant deliberately set a fire in the

hallway of an abandoned hotel outside the door of a room occupied by several homeless

individuals. The State presented evidence that the Defendant was angry with a man he

knew to be inside a fourth-floor room and that he subsequently kindled the fire outside

the door of the room, knowing that the man and others would be trapped in the room.

Two of those present sought shelter on the balcony but were physically unable to escape

until they were rescued by firefighters. The Defendant suggested that the co-defendant,

Mr. Joshua Brooks, who testified at trial, was an unreliable witness who may have set the

fire himself, noting that those inside the room were unable to see who started the fire.

The Harding Inn, the hotel damaged in the fire, had not been in operation for

approximately seven to ten years, and a previous fire had damaged one entrance, leaving

it open to the public. When the hotel ceased operating, the contents remained, and many

of the rooms were still furnished. Mr. Nish Jobalia was one member of a limited liability

company which purchased the property in May 2015, and in July 2015, the owners were

attempting to secure the premises to exclude the numerous homeless residents. Mr.

Jobalia testified that the building’s utilities were not connected and that his company was

in the process of beginning to clean up and remodel the building. He was not acquainted

with the Defendant or with Mr. Brooks, and he had not given anyone permission to set

the building on fire.

Ms. Stacy Craig and Mr. Jonathan Watts were homeless in July 2015 and were

living in the Harding Inn. Mr. Watts had lived there approximately one year, and Ms.

Craig had lived there for approximately six months. When Ms. Craig moved in, the two

relocated to a room on the fourth floor. Ms. Craig testified that while the hotel was

generally in bad shape in that it was filled with graffiti and garbage, the room on the

fourth floor was furnished and undamaged, although it, like the rest of the hotel, had no

utilities. The room had only one entrance. A sliding glass door led onto a balcony, but

there was no exit from the balcony.

Ms. Craig was acquainted with the Defendant, whom she knew as “Boo,” through

a man identified in the record only as “Craig.” She had seen the co-defendant, who went

by the name “Amy,” in passing. On July 7, 2015, Craig, Ms. Craig, Mr. Watts, and a

man identified as “Shamon” were in the room shared by Ms. Craig and Mr. Watts. Ms.

Craig testified that Mr. Watts was extremely intoxicated, to the point where he could not

walk straight. Mr. Watts denied that he was so intoxicated that he could not stand but

acknowledged he had consumed six beers and “had a buzz.”

Ms. Craig testified that she left the room briefly and saw the Defendant, the co-

defendant, and the Defendant’s cousin, Ms. Monica Matthews, in a hallway, looking for

Craig. Because she was aware that there was a conflict between the Defendant and

Craig, she told them that she did not know where Craig was, despite the fact that he was

in her room. After Ms. Craig had returned to her room, the Defendant and his

companions began shouting through the door, insisting that Craig come out. The security

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latch was fastened but allowed the door to be opened a crack, and Shamon cracked the

door and told the offenders that it was not Craig’s room and that they should leave. The

people in the hallway began to shout that they would “burn down the room if [the

occupants] didn’t come out.” Ms. Craig testified that the people in the hallway were

cursing, kicking at the door, and threatening to set the room on fire. A person in the

hallway was shouting that “he wanted his stuff back.” Mr. Watts testified that he was on

the balcony but could hear people banging on the door and yelling about a bag. Mr.

Watts heard a man say, “I’m going to set this building on fire if you don’t give me my

bag back.” On cross-examination, Ms. Craig acknowledged that she could not identify

the Defendant’s voice and only assumed that he was one of the individuals in the

hallway. She also acknowledged that she did not know who started the fire or what

materials were used to start the fire. Mr. Watts likewise acknowledged that he did not see

who started the fire but testified that Craig said, “shut up, Boo,” to the person outside the

door.

After a short period of quiet, the occupants of the room saw smoke coming in

under the door. Ms. Craig stated that they tried to open the door but it was “engulfed

already.” Mr. Watts testified that they tried to open the door but that the doorknob was

too hot and smoke was billowing into the room. Ms. Craig went to the balcony, and she

saw the Defendant, co-defendant, and Ms. Matthews walking up a hill. She shouted at

them, “[W]hy did you do this, we’re going to die up here, we have no way down.” Ms.

Craig testified that the Defendant responded, “I hope you b****es die up there. I hope

you burn alive.”

Because the Defendant wanted to avoid the introduction of proof that he was

wearing an ankle monitor, he entered into a stipulation that he was present at the hotel

during the time the fire was set.

The co-defendant confirmed much of Ms. Craig’s and Mr. Watts’s testimony. The

co-defendant testified that he knew Craig and the Defendant as residents of the

abandoned hotel and that he had met Ms. Craig in the hallway. At the beginning of the

co-defendant’s testimony, he stated that he and the Defendant had come to the Harding

Inn “to look for Craig to try to find Boo’s purse with [Boo’s] ankle monitor charger in it.”

The defense immediately objected to the testimony and moved for a mistrial. The

prosecutor stated that the witness had been instructed not to mention the monitoring

device. The trial court refused to grant a mistrial, observing, “You had a stipulation and

he was instructed not to mention it and it came out. These things happen. I’m not going

to grant the mistrial for this one statement, but I will be mindful of any other statements.”

The co-defendant testified that on the drive to the hotel, the Defendant had spoken

to Craig on the co-defendant’s telephone, and the Defendant believed Craig was at the

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hotel. Ms. Matthews joined them after they arrived at the hotel. They proceeded to hunt

for Craig room-to-room.

According to the co-defendant, at one point they “pass[ed]” Shamon and informed

him they were searching for Craig in order to recover the purse, but Shamon denied that

Craig was in the hotel. They had seen the room Shamon entered, approached that room,

and heard Craig’s voice. The co-defendant peeped through a hole created by a missing

doorknob and thought he saw Craig. He described an argument in which the three in the

hallway demanded that Craig come out and the people in the room denied he was there.

According to the co-defendant, the Defendant then said, “I wish I had some gas[;] I’d

burn this motherf***er down.” The Defendant began to pile items, including sheets and

plastic bags, by the door to the room. The co-defendant stated there were no large items

and that the items consisted entirely of four to five sheets and three to four plastic bags.

The co-defendant stated that he and Ms. Matthews walked down the hallway but that he

was able to see “little flames” from the Defendant lighting a plastic bag. When they left

the building, they could see large amounts of smoke, and Ms. Craig began to shout at

them. The Defendant responded to Ms. Craig by saying, “I hope y’all motherf***ers

burn alive.” The Defendant left with Ms. Matthews, but they met the co-defendant a

short distance away because the Defendant needed to retrieve a purse from the co-

defendant’s car. They did not watch the fire or call for help. The co-defendant denied

having had any disagreement with Craig and denied that Craig owed him money.

Ms. Craig testified that all the occupants of the room except for herself and Mr.

Watts were able to climb down the balcony to a lower level. Ms. Craig was physically

unable to surmount the railing, and Mr. Watts was too intoxicated. Ms. Craig testified

that she was terrified and thought they would die. She could see the fire coming out of

nearby rooms. A photograph of the fire shows flames leaping out of several windows on

the upper storey of the hotel. Mr. Watts stated that two people had climbed up the

balcony from the third floor to try to open the door to the hallway, but when they were

unsuccessful, they climbed back down.

Captain William Nelms of the Nashville Fire Department responded to the fire.

Flames were emerging from several rooms on the top floor, and the firefighters saw two

people trapped on a balcony. Captain Nelms described his decision to use a ladder

hooked onto the balcony in combination with another ladder because his longest ladder

would not reach the balcony. He noted that the maneuver risked the lives of the

firefighters who rescued Ms. Craig and Mr. Watts because of the possibility that the

balcony of the abandoned hotel would give way. The building suffered damage when the

concrete broke apart due to the high temperatures.

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Investigator Mark Sells of the Nashville Fire Department testified that he

determined the origin of the fire to be in a hallway but testified inconsistently regarding

the floor on which the fire originated, stating at different times that it was the second

floor, that it was the third floor, that it was the top floor of the building, and that it was

not the top floor. There was evidence that the hotel was constructed in a hill and that the

number of floors was not consistent throughout the building. Investigator Sells found the

remains of approximately ten mattresses, marked by springs, in the hallway, as well as

small pieces of linens. He testified that the mattresses would have given off poisonous

gases and copious amounts of smoke and that they would have blocked the egress. A

match or lighter could have started the fire, and he found no evidence of an accelerant.

He stated that four bedsheets and some plastic bags could not have started a fire of that

magnitude. Investigator Billy Deering likewise testified that the area of origin was in a

fourth floor hallway and that the fire quickly spread to several adjoining rooms. The

room that had been occupied was less heavily damaged but had fire and smoke patterns

on the walls.

Ms. Craig and Mr. Watts both testified that they were taken to the hospital for

smoke inhalation. Investigator Sells interviewed them there, and he testified that they

identified the Defendant and co-defendant by their nicknames. The co-defendant was

located through his workplace. Investigator Sells and Investigator Deering

acknowledged that the co-defendant had given inconsistent statements throughout the

investigation. Investigator Deering stated that he interviewed the co-defendant on the

night of the fire and that the co-defendant denied any knowledge of the fire. Investigator

Sells was present for the co-defendant’s second interview, in which he acknowledged

having driven to the hotel but denied having entered the hotel. In his third interview, the

co-defendant implicated the Defendant in setting the fire. Investigator Sells did not recall

if the co-defendant said a lighter was used and denied that the co-defendant asserted

repeatedly that only a few sheets and plastic bags and no mattresses were set on fire. The

video recording of the interview, which is not included in the appellate record, was

played for the jury to demonstrate that the co-defendant had asserted he had not seen any

mattresses in front of the door and that Investigator Sells argued with the co-defendant

regarding the presence of mattresses piled in front of the door.

The co-defendant acknowledged giving numerous false statements to

investigators. When investigators approached him on the night of the fire, he denied any

knowledge of the incident. Two days later, he acknowledged that he was near the

premises with the Defendant but denied having entered the hotel. In his third statement,

made approximately one week after the fire, he acknowledged looking for Craig in the

hotel. The co-defendant insisted that the items in front of the hotel room’s door consisted

of four to five sheets and a few plastic bags. He agreed that after he was asked repeatedly

who was responsible for the fire, he eventually responded, “[W]ell, I guess Boo.” He

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also agreed that he had stated that he and Ms. Matthews had “stuff to lose” while the

Defendant did not.

On cross-examination, defense counsel asked the co-defendant, “Did you and Ms.

Matthews plot to blame [the Defendant] for this fire?” The co-defendant signaled his

attorney, and he was permitted to answer the question out of the presence of the jury.

The co-defendant stated that he “wouldn’t say that it was a plot. She just was like we

cannot go to jail for something that Boo did.” He elaborated that Ms. Matthews told him

to tell the truth. The court noted that Ms. Matthews’s statement would be hearsay, but

the prosecutor stated that the State had no objection and would like the statement to come

in. Defense counsel objected to the statement and asked that the witness be instructed to

give a yes or no answer. The trial court concluded, “And therein that’s what puts a little

twist in it because of what the jury has heard previously, so he will be allowed to

explain.” The prosecution noted it had no objection to an instruction that the statement

should only be considered for its effect on the co-defendant. The co-defendant testified

in front of the jury that Ms. Matthews “said that we cannot go down for something that

her cousin did, that we have to tell the truth.” The court instructed the jury that Ms.

Matthews’s statement was “not being offered for the truth of the matter asserted,” without

further explanation.

The co-defendant acknowledged that he had numerous prior convictions for

aggravated robbery and auto burglary and that he was also charged with aggravated arson

in the current case. He stated that he was not receiving immunity from prosecution but

that he expected “consideration” in the disposition of the charge.

The jury found the Defendant guilty of aggravated arson, and the trial court held a

sentencing hearing and sentenced him to serve thirty years in prison. The Defendant

appeals his conviction.

ANALYSIS

On appeal, the Defendant challenges the limitation of voir dire; the introduction

into evidence of testimony regarding Ms. Craig and Mr. Watts’s injuries; the denial of a

mistrial based on testimony regarding the ankle monitor; and hearsay testimony regarding

Ms. Matthews’s statement that she and the co-defendant should not “go down for

something that her cousin did.”

I. Jury Instructions

While the Defendant does not raise the issue on appeal, we are constrained to note

an obvious error in the trial court’s jury instructions. The Defendant was not required to

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object to the jury instructions at trial in order to preserve the issue, but the Defendant has

also not raised the issue in the motion for a new trial or on appeal. See Tenn. R. Crim. P.

30(b) (“Counsel’s failure to object [to jury instructions] does not prejudice the right of a

party to assign the basis of the objection as error in a motion for a new trial.”). An

appellate court, however, retains “the authority to ‘consider an error that has affected the

substantial rights of a party at any time, even though the error was not raised in the

motion for a new trial or assigned as error on appeal.’” State v. Knowles, 470 S.W.3d

416, 423 (Tenn. 2015) (quoting Tenn. R. App. P. 36(b)). In Knowles, the Defendant

raised a challenge to the sufficiency of the evidence but did not challenge the State’s

improper election of offenses and a related inaccurate jury charge. Id. The Tennessee

Supreme Court noted that this court erred in applying plenary review after raising the

issue sua sponte; instead, we should have reviewed for plain error. Id. at 422-23; see

also State v. Bishop, 431 S.W.3d 22, 45 (Tenn. 2014) (noting that an issue raised by

Court of Criminal Appeals sua sponte should have been reviewed for plain error); State v.

Walton, 958 S.W.2d 724, 727 (Tenn. 1997) (“[P]lain error is an appropriate consideration

for an appellate court whether properly assigned or not.”).

For an error to constitute plain error sufficient to merit relief, the following factors

must be present:

(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. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (quotation omitted).

Additionally, “‘the plain error must be of such a great magnitude that it probably changed

the outcome of the trial.’” Bishop, 431 S.W.3d at 44 (quoting Adkisson, 899 S.W.2d at

642). A court need not consider all the factors if it is clear that the defendant will fail to

establish at least one. State v. Jordan, 325 S.W.3d 1, 58 (Tenn. 2010). An appellate

court’s sua sponte invocation of plain error relief should be exercised sparingly “because

‘appellate courts do not sit as self-directed boards of legal inquiry and research, but

essentially as arbitrators of legal questions presented and argued by the parties before

them.’” Bishop, 431 S.W.3d at 44 (quoting State v. Northern, 262 S.W.3d 741, 766

(Tenn. 2008) (Holder, J., concurring and dissenting)).

The Defendant here was charged with aggravated arson. The statutory definition

of arson is:

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(a) A person commits an offense who knowingly damages any

structure by means of a fire or explosion:

(1) Without the consent of all persons who have a possessory,

proprietary or security interest therein; or

(2) With intent to destroy or damage any structure to collect

insurance for the damage or destruction or for any unlawful purpose.

T.C.A. § 39-14-301. The indictment charged the Defendant under subsection (a)(1) with

having damaged the Harding Inn by means of fire and without the consent of the owners.

Arson becomes aggravated when, as charged here, one or more persons are present in the

structure. T.C.A. § 39-14-302. Accordingly, the jury instructions should have charged

the jury to find that the Defendant knowingly damaged the structure by means of fire or

explosion, without the consent of all the persons who had a possessory, proprietary, or

security interest in it, and while one or more persons were present in the structure.

Instead, the written jury charge listed the elements of the offense as follows:

(1) that the defendant knowingly damaged a structure by means of

fire or explosion;

and

(2)(a) that the defendant did so without the consent of all persons

who have a possessory, proprietary or security interest therein;

or

(b) that the defendant did so with intent to destroy or damage the

structure

and

(3)(a) that one or more persons were present therein.

These instructions attempt to include the language from section 39-14-301(a)(2)

permitting a finding of guilt when the Defendant acts “[w]ith intent to destroy or damage

any structure to collect insurance for the damage or destruction or for any unlawful

purpose.” T.C.A. § 39-14-301(a)(2). Because the Defendant was only charged in the

indictment under subsection (a)(1), having set the fire without the consent of the owners,

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the inclusion of this language was itself error. The error is compounded by the fact that

the key limiting phrase, requiring a finding that the fire was set with the intent to destroy

the property “to collect insurance for the damage or destruction or for any unlawful

purpose,” is omitted entirely. T.C.A. § 39-14-301(a)(2). A jury following these written

instructions could have convicted the Defendant on finding that he knowingly damaged

the structure by means of fire; that he acted with the intent to destroy or damage the

structure; and that one or more persons were present. In essence, the jury could have

convicted the Defendant while omitting one element of the offense, that the Defendant

acted without the consent of the proprietors, and substituting a higher mens rea.

The oral instructions given by the judge were also incorrect. The oral instructions

were identical to the written instructions in including the language based on Tennessee

Code Annotated section 39-14-301(a)(2), despite the fact that the indictment charged the

Defendant under subsection (a)(1). Like the written instructions, the oral instructions

also omitted the key limiting phrase “to collect insurance for the damage or destruction or

for any unlawful purpose.” T.C.A. § 39-14-301(a)(2). The oral instructions, however,

charged the jury to find both that the Defendant set the fire without the consent of all

persons who have a possessory, proprietary, or security interest therein and that he did so

with intent to destroy or damage the structure.

A defendant has a right to a correct and complete jury charge. State v. Garrison,

40 S.W.3d 426, 432 (Tenn. 2000). The right to a correct and complete charge is

constitutional, and each issue of fact raised by the evidence should be submitted to the

jury with proper instructions. State v. Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011). A

jury instruction which misstates an element of an offense so as to lessen the State’s

burden of proof amounts to constitutional error. State v. Page, 81 S.W.3d 781, 789

(Tenn. Crim. App. 2002). Due process requires the conviction to rest upon a jury

determination that the defendant is guilty beyond a reasonable doubt of every element of

the crime. State v. Ducker, 27 S.W.3d 889, 899 (Tenn. 2000). However, “[t]he failure to

instruct the jury on a material element of an offense is a constitutional error subject to

harmless error analysis.” State v. Faulkner, 154 S.W.3d 48, 60 (Tenn. 2005); see

Cauthern v. State, 145 S.W.3d 571, 600 (Tenn. Crim. App. 2004). Such non-structural

constitutional error places the burden on the State to prove harmlessness beyond a

reasonable doubt. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008).

Reviewing these instructions for plain error, we conclude that while the record

clearly establishes that the jury instructions were erroneous and while this is the breach of

a clear and unequivocal rule of law, no substantial right of the Defendant was affected

and consideration of the error is not necessary to do substantial justice. Initially, the

Defendant is not entitled to relief based on error in the oral instructions because the error

in the oral instructions served only to increase the State’s burden of proof. Furthermore,

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although the error in the written instructions was tantamount to the omission of an

element of the offense, the omission of an element of an offense from the jury

instructions is harmless beyond a reasonable doubt when that element was not contested

at trial and was essentially conceded. See Garrison, 40 S.W.3d at 434-35.

In State v. Ducker, the trial court neglected to instruct the jury that it must find

beyond a reasonable doubt that the victims were under six years of age, an essential

element of the crime of aggravated child abuse. Ducker, 27 S.W.3d at 898-99. The

Tennessee Supreme Court concluded that the error was harmless beyond a reasonable

doubt because all of the evidence in the record indicated that the children were under age

six and because the defendant did not challenge this element at trial. Id. at 899-900; see

Garrison, 40 S.W.3d at 434-35 (concluding that the error in instructing the jury as to one

element of the offense was harmless beyond a reasonable doubt when the element

“effectively ha[d] been conceded”); State v. Tony Martin, No. W2001-02221-CCA-R3-

CD, 2003 WL 261937, at *9 (Tenn. Crim. App. Feb. 7, 2003) (concluding that although

mens rea was improperly defined, the evidence at trial overwhelmingly established that

the defendant’s conduct was knowing and the dispute at trial centered around whether the

defendant acted in self-defense). In the case at bar, the Defendant did not contest the fact

that he did not have permission to burn the building. All of the evidence at trial

supported the conclusion that he was on the premises without the permission of the

owners and that the owners did not consent to the kindling of a fire in the hallway.

Accordingly, we conclude that the error in the written instructions does not merit plain

error relief.

II. Voir Dire

The Defendant raises as error on appeal the trial court’s purported limitation of

defense counsel’s questioning of the members of the venire during voir dire. The

Defendant asserts that he was prevented from asking potential jurors about their

charitable contributions, which would have given him insight into any potential bias they

might have against him based on his gender identity. However, the Defendant has not

included a transcript of voir dire in the appellate record. The appellant has the duty to

prepare a record which conveys “a fair, accurate and complete account of what transpired

with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). “When

the record is incomplete and does not contain information relevant to a particular issue,

this court may not make a ruling.” State v. Richardson, 875 S.W.2d 671, 674 (Tenn.

Crim. App. 1993). Instead, in the absence of a transcript, we presume that the trial

court’s judgments were correct. Id. Here, we are not able to ascertain what happened

during voir dire, and accordingly the Defendant is not entitled to relief.

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III. Testimony Regarding Injuries

The Defendant asserts that the trial court erred in allowing into evidence

statements which showed that Ms. Craig and Mr. Watts were hospitalized for smoke

inhalation after the fire. The Defendant filed a motion in limine prior to trial to exclude

any evidence regarding injuries sustained during the fire. The trial court ruled that the

evidence could come in, concluding, “[I]f they were injured, that’s just … part of the

facts. Simple as that. So, they can bring that up.” The court excluded any evidence that

Ms. Craig was pregnant at the time.

The Defendant argues that testimony regarding the injuries does not establish any

element of the offense and that it accordingly fails the test of relevancy. He also argues

that the prejudicial effect of the evidence substantially outweighed its probative value.

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. Relevant evidence is

generally admissible. Tenn. R. Evid. 402. However, relevant evidence may 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.

Like other decisions regarding the admissibility of evidence, decisions regarding the

relevance of evidence are reviewed for abuse of discretion. State v. Powers, 101 S.W.3d

383, 395 (Tenn. 2003); State v. March, 395 S.W.3d 738, 781 (Tenn. Crim. App. 2011).

A court abuses its discretion when it applies an incorrect legal standard or it reaches a

decision that is against logic or reasoning and that causes an injustice to the complaining

party. State v. Merriman, 410 S.W.3d 779, 791 (Tenn. 2013).

To establish that the Defendant committed aggravated arson as charged, the State

had to show that the Defendant “knowingly damage[d] any structure by means of a fire or

explosion”; that he did so “[w]ithout the consent of all persons who have a possessory,

proprietary or security interest therein”; and that one or more persons were present in the

structure. T.C.A. §§ 39-14-301, -302. The testimony that Ms. Craig and Mr. Watts

suffered from smoke inhalation tended to make the existence of one element of the crime,

that one or more persons were present in the building, more probable than it would have

been without the evidence. Accordingly, the evidence was relevant. On appeal, the

Defendant argues that the evidence should have been excluded because the presence of

Ms. Craig and Mr. Watts in the hotel was not disputed. The cumulative nature of the

evidence does not, however, render it irrelevant. See State v. Rogers, 188 S.W.3d 593,

613 (Tenn. 2006) (noting that evidence which passes the test of relevance may

nevertheless be excluded if it is cumulative under Rule 403).

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While the Defendant sought to exclude the evidence at trial based on relevance,

arguing that it did not establish an element of the offense, he never argued that the

evidence should be excluded under Rule 403 because its probative value was

substantially outweighed by prejudicial impact due to its cumulative nature.

Accordingly, this argument is waived. See Tenn. R. App. P. 36(a); Tenn. R. Evid.

103(a)(1); State v. Howard, 504 S.W.3d 260, 277 (Tenn. 2016). We nevertheless note

that the testimony to which the Defendant objects consists of three passing references to

the fact that Ms. Craig and Mr. Watts were hospitalized for smoke inhalation. There

were no photographs of the injuries, and there was no medical proof or detailed testimony

regarding the nature of the injuries. The prejudicial impact of the passing references

would have been minimal. We conclude that there was no abuse of discretion in

admitting the evidence.

IV. Mistrial After Reference to the Ankle Monitor

The Defendant asserts that the trial court erred in refusing to grant a mistrial after

the co-defendant testified about an ankle monitor charger contained in the purse which

was the subject of the dispute. The State responds that the Defendant has not shown that

the trial court abused its discretion in denying the mistrial.

At the time of the offense, the Defendant was wearing an ankle monitor with GPS

tracking capabilities due to a prior offense. The Defendant and the State entered into a

stipulation prior to trial that the Defendant was on the premises of the Harding Inn at the

time the fire was set. This stipulation was intended to prevent the jury from hearing

evidence that the Defendant was wearing an ankle monitor. When the co-defendant

testified, however, he stated that they had gone to the hotel “to look for Craig to try to

find Boo’s purse with [Boo’s] ankle monitor charger in it.” During the jury-out hearing

that followed, defense counsel moved for a mistrial. The prosecutor stated that he had

instructed the witness not to mention the ankle monitor, and the co-defendant then

volunteered that “[t]hat’s why the purse was important.” The trial court denied the

mistrial, acknowledging that the stipulation had been intended to keep the evidence out

but concluding that the statement in isolation did not merit declaring a mistrial. Defense

counsel was given the option of requesting a curative instruction but made a choice to

avoid calling further attention to the testimony.

“The purpose of declaring a mistrial is to correct damage done to the judicial

process when some event has occurred which precludes an impartial verdict.” State v.

Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007). A mistrial should be declared

only upon a showing of manifest necessity; in other words, a mistrial should be declared

when a miscarriage of justice would result if the trial were to continue. State v. Banks,

271 S.W.3d 90, 137 (Tenn. 2008). The appellant bears the burden of establishing

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manifest necessity. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In

evaluating whether the trial court abused its discretion, the appellate court may consider:

“(1) whether the State elicited the testimony, (2) whether the trial court gave a curative

instruction, and (3) the relative strength or weakness of the State’s proof.” Welcome, 280

S.W.3d at 222. The decision to grant a mistrial lies within the sound discretion of the

trial court. State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003).

Appellate courts have previously upheld a trial court’s refusal to declare a mistrial

after a passing reference to the defendant’s prior imprisonment. See, e.g., State v. Bell,

512 S.W.3d 167, 188 (Tenn. 2015) (concluding that the trial court did not err in not

declaring a mistrial after two witnesses made brief and unsolicited references to the

defendant’s prior incarceration, the defendant refused a curative instruction, and the

evidence implicating the defendant was strong); Saylor, 117 S.W.3d at 251 (holding that

the trial court did not err in refusing mistrial based on the admission of a recording in

which the words “parole” or “on the run” may have been audible); State v. Smith, 893

S.W.2d 908, 923 (Tenn. 1994) (concluding that the trial court did not err in refusing a

mistrial when a witness referenced the defendant serving time in jail where the response

was unsolicited, the court gave curative instructions, and the proof against the defendant

was overwhelming); Welcome, 280 S.W.3d at 222 (concluding that the trial court did not

abuse its discretion in denying mistrial for a reference to the defendant’s incarceration

when the reference was brief, was made in an attempt to explain a response, and the trial

court had given curative instructions).

Here, the reference to the ankle monitor was brief and isolated, and the jury did

not hear any proof regarding the nature of the Defendant’s prior offenses. The State did

not elicit the testimony and had instructed the witness not to mention the ankle monitor,

but the witness disregarded the instruction. Defense counsel was given the option of

having curative instructions issued to the jury but chose to avoid putting any further

emphasis on the testimony. The State’s proof regarding the Defendant’s involvement

with the crime was strong. Ms. Craig testified that she saw the Defendant and his

companions looking for Craig in the hallway and that they subsequently began banging

on the door and demanding for him to come out. The co-defendant testified that they

were searching for the Defendant’s bag, which they believed Craig had stolen. Ms. Craig

heard someone in the hallway demanding the return of property, and Mr. Watts heard

someone say, “I’m going to set this building on fire if you don’t give me my bag back.”

The co-defendant testified that the Defendant kindled the fire. Ms. Craig and the co-

defendant both testified that after leaving the building, the Defendant said that he hoped

the people trapped in the room would burn alive. Considering that the testimony was

spontaneous, that the Defendant chose to forgo a curative instruction, and that the State’s

evidence was strong, we conclude that the trial court did not abuse its discretion in

denying the motion for a mistrial.

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V. Hearsay Testimony

The Defendant’s next assignment of error is that the trial court permitted the co-

defendant to testify to a hearsay statement that the Defendant was the perpetrator of the

crime. The State responds that the Defendant did not properly preserve this issue and that

the statement was not hearsay.

Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.

R. Evid. 801(c). Hearsay is generally not admissible unless it falls under some exception.

Tenn. R. Evid. 802. However, error may only be predicated on the admission of hearsay

evidence when there has been a timely objection. See Tenn. R. Evid. 103(a)(1) (stating

that error may not be predicated on the admission of evidence unless a timely objection

or motion to strike was made and a substantial right of the party is affected); 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.”). A trial court’s factual

findings and credibility determinations regarding a ruling on hearsay are binding on the

appellate court unless the evidence preponderates against them. Kendrick v. State, 454

S.W.3d 450, 479 (Tenn. 2015). This court determines de novo whether a statement

qualifies as hearsay or is admissible under one of the hearsay exceptions. Id.

The statement at issue was the co-defendant’s response to defense counsel’s

question, “Did you and Ms. Matthews plot to blame [the Defendant] for this fire?”

During a jury-out hearing, the co-defendant answered by saying, “I wouldn’t say that it

was a plot. She just was like we cannot go to jail for something that Boo did.” The trial

court initially instructed the witness that the statement would be inadmissible as hearsay.

The prosecutor noted he had no objection and would like the statement admitted, and

defense counsel then asked the court to instruct the witness to give a yes or no answer.

The trial court ruled that “because of what the jury has heard previously,” it would let the

witness answer. The prosecutor noted that the jury could be instructed to consider the

statement not for the truth of the matter asserted but only for its effect on the co-

defendant. The trial court instructed the jury that the co-defendant would testify about

what Ms. Matthews had said but “that since it’s hearsay, it’s not being offered for the

truth of the matter asserted. All right. It will just be what it is. All right.” The trial court

then permitted the co-defendant to testify that Ms. Matthews “did call me and she said

that we cannot go down for something that her cousin did, that we have to tell the truth,

that I can’t go telling them, that I have to go and tell them the truth about what

happened.”

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The State asserts that the Defendant did not adequately object to the proposed

testimony on a hearsay basis. We conclude that defense counsel’s request that the

witness’s response be limited to a yes or no answer, in the context of the discussion

regarding hearsay, adequately preserves the issue for review.

Ms. Matthews’s statement that the co-defendant should tell the truth is not a

hearsay statement but a command. See State v. Oneal Sanford, No. E1999-02089-CCA-

R3-CD, 2001 WL 681312, at *6 (Tenn. Crim. App. June 18, 2001). The testimony,

however, also contains what amounts to an assertion that Ms. Matthews stated that the

Defendant committed the crime. This statement, offered to show that the Defendant

committed the crime, is hearsay. Although the trial court gave the jury a cursory

instruction not to consider what Ms. Matthews said for the truth of the matter asserted,

the trial court never explained the instruction or instructed the jury what the statement

was being offered to show other than the truth of the matter asserted. See State v. McCoy,

459 S.W.3d 1, 11 (Tenn. 2014) (observing that a statement offered to show its effect on

the hearer without regard to truth or falsity is not hearsay); State v. Reece, 637 S.W.2d

858, 861 (Tenn. 1982) (noting that when evidence was only admitted on the issue of

credibility and not for the truth of the matter asserted, the trial court should have

instructed the jury to that effect); see also 7 Tenn. Prac. Pattern Jury Instr. -- Crim. 42.06.

Nevertheless, we conclude that the trial court did not err in allowing the statement.

This is because a hearsay statement becomes admissible when “the defendant himself

both elicited and opened the door to the testimony.” State v. Robinson, 146 S.W.3d 469,

493 (Tenn. 2004) (concluding that there was no error admitting hearsay evidence that a

declarant identified the defendant when the defense elicited the testimony). “‘[O]pening

the door’ is an equitable principle that permits a party to respond to an act of another

party by introducing otherwise inadmissible evidence.” State v. Gomez, 367 S.W.3d 237,

246 (Tenn. 2012). This doctrine, also called curative admissibility, “provides that

‘[w]here a defendant has injected an issue into the case, the State may be allowed to

admit otherwise inadmiss[i]ble evidence in order to explain or counteract a negative

inference raised by the issue defendant injects.’” State v. Land, 34 S.W.3d 516, 531

(Tenn. Crim. App. 2000) (quoting State v. Armentrout, 8 S.W.3d 99, 111 (Mo. 1999));

see also State v. Bennie Edward Jackson, No. M2016-02575-CCA-R3-CD, 2017 WL

4457597, at *7 (Tenn. Crim. App. Oct. 5, 2017) (noting that a witness’s testimony

regarding prior assaults was elicited by the defense and that the defense did not request

curative instructions), perm. app. denied (Tenn. Feb. 14, 2018). In order to “open the

door,” the party against whom the evidence is offered must introduce the matter or put

the matter at issue. Gomez, 367 S.W.3d at 246. The evidence admitted must be relevant

to the same subject matter as the evidence introduced by the party against whom it is

offered. Id. at 247-48.

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Here, the defense asked the co-defendant if he and Ms. Matthews had “plot[ted]”

to blame the Defendant for the crime. The co-defendant’s answer asserted that while the

two did discuss blaming the Defendant, the discussion was not a plot to frame him but a

decision to tell the truth. The question itself called for the co-defendant to testify

regarding out-of-court statements exchanged with Ms. Matthews. Accordingly, we

conclude that the trial court did not abuse its discretion in permitting the witness to

answer the question.

VI. Cumulative Error

Insofar as the Defendant asserts he is entitled to relief for cumulative error, we

have concluded that neither the hearsay statement nor the testimony regarding injuries

was admitted in error, that the trial court did not abuse its discretion in denying a mistrial,

and that the jury instructions do not constitute plain error. The Defendant is not entitled

to relief. See State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010).

CONCLUSION

Based on the foregoing reasoning, we affirm the trial court’s judgment.

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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