State of Tennessee v. Bryan Keith Thomas

04/25/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 18, 2018

STATE OF TENNESSEE v. BRYAN KEVIN THOMAS

Appeal from the Circuit Court for Blount County

No. C-19606 David R. Duggan, Judge

No. E2017-02247-CCA-R3-CD

The Defendant, Ryan Kevin Thomas, was indicted for first degree premeditated murder;

first degree felony murder; and theft of property valued at more than $500 but less than

$1000; a Class E felony. See Tenn. Code Ann. §§ 39-13-202, -14-103, -14-105 (2010).

Following a jury trial, the Defendant was convicted of the lesser-included offense of

second degree murder, a Class A felony, and of the charged offenses of first degree

felony murder and theft. See Tenn. Code Ann. § 39-13-210 (2010). The trial court later

merged the second degree murder conviction into the first degree felony murder

conviction and imposed a total effective sentence of life. On appeal, the Defendant

contends that (1) the evidence was insufficient to sustain the Defendant’s convictions for

first degree felony murder and second degree murder; (2) the trial court erred in admitting

an autopsy photograph; (3) the trial court erred in excluding hearsay testimony from a

proposed witness for the defense; and (4) the trial court erred in approving the jury’s

verdict as the thirteenth juror.1 Following our review, we affirm the judgments of the

trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE

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

Ashley Morris Bentley, Maryville, Tennessee, for the appellant, Bryan Kevin Thomas.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant

Attorney General; Michael L. Flynn, District Attorney General; and Shari Lynn Tayloe,

Matthew Dunn, and Ryan Kevin Desmond, Assistant District Attorneys General, for the

appellee, State of Tennessee.

1

We have reordered and renumbered the issues as they appear in the Defendant’s brief for clarity.

OPINION

FACTUAL BACKGROUND2

Kristi Dixon met the Defendant at the Thornhill Trailer Park in November 2010.

When asked to describe her relationship with the Defendant, Ms. Dixon testified that they

“[s]mok[ed] crack cocaine” together. Sometime during the night of November 23 and

early morning hours of November 24, 2010, Ms. Dixon was told to leave the Thornhill

Trailer Park. Ms. Dixon recalled that the Defendant had no money or drugs with him

while they were at the trailer park. The Defendant also did not have a cell phone, but he

used someone else’s phone and “called for a ride.” According to Ms. Dixon, the

Defendant was wearing “black, wind-breaker type pants . . . and a green pullover . . .

sweatshirt” with a T-shirt with rolled up or ripped off sleeves underneath. Ms. Dixon

recalled that before they left the trailer park, the Defendant got “a change of clothes.”

The Defendant got “a T-shirt, and a pair of socks and boxers wrapped up in a pair of

pants.”

The victim, Steven Payne, picked up the Defendant and Ms. Dixon at the trailer

park and drove them to his apartment. Ms. Dixon testified that she had never met the

victim before. Once at the victim’s apartment, they watched television in the living

room. Ms. Dixon recalled that the Defendant drank a beer. Ms. Dixon drifted in and out

of sleep as they watched television. At some point, the Defendant went to the victim’s

bedroom and then called for Ms. Dixon. In the bedroom, the Defendant told Ms. Dixon

that the “TV and stuff” in the living room was his and that the victim was just keeping it

for him until he had “a place to put it.” Ms. Dixon testified that, “a minute” later, the

Defendant said, “I’m going to have to knock this mother f--ker out.” Ms. Dixon thought

the Defendant was just “talking crap” because “he said that . . . about other people,” but

had “never followed through with anything like that.”

Ms. Dixon fell asleep in the bedroom, but woke up when she overheard the

Defendant making phone calls with the victim’s cell phone. Ms. Dixon recalled that the

Defendant was giving someone directions to the victim’s apartment. Ms. Dixon

eventually went back to the living room. Ms. Dixon recalled that the victim was lying

down on the couch and was coved up to his chest “with a beige blanket.” Ms. Dixon fell

asleep in the living room. The Defendant eventually woke her and told her to go to the

bathroom because they were “fixing to leave.” On her way to the bathroom, the

Defendant stopped her and whispered to her that she should “stay in there for a few

minutes.”

2

This section will address the factual background of the Defendant’s convictions. The factual

background of the Defendant’s procedural issues will be discussed in the relevant portions of our analysis.

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In the bathroom, Ms. Dixon used the toilet, washed her hands, and checked her

makeup. Ms. Dixon estimated that she was in the bathroom between two to four minutes.

However, Ms. Dixon admitted that she did not actually know how long she was in the

bathroom that morning. Ms. Dixon recalled that she could not hear anything in the

bathroom because the fan “was really, really loud.” As she was getting ready to exit the

bathroom, the Defendant opened the door. According to Ms. Dixon, the Defendant “had

a blank kind of stare on his face.” Ms. Dixon noticed that all of the lights in the

apartment were off and that the Defendant “had [the] pathway [back to the living room]

blocked” with the victim’s television “and a black garbage bag.” Ms. Dixon also noticed

that there was a red jacket covering the victim’s face that had not been there when she

went to the bathroom. Ms. Dixon saw the victim’s arm drop and thought he was asleep.

According to Ms. Dixon, the Defendant “pushe[d] [her] out of the apartment.”

They waited outside in the cold while the Defendant used the victim’s cell phone to give

someone directions to the victim’s apartment. Eventually, a car backed up to the victim’s

door. The car was driven by Nicholas Buchanan. Ms. Dixon had never met Mr.

Buchanan before that morning. Ms. Dixon got in the front seat of Mr. Buchanan’s car

while the Defendant and Mr. Buchanan went into the victim’s apartment and got the

television. The Defendant and Mr. Buchanan put the television in the backseat of Mr.

Buchanan’s car. The Defendant then put the black garbage bag on the back floorboard.

The Defendant also took off his sweatshirt, turned it inside out, and put it on the front

passenger floorboard.

Mr. Buchanan drove the Defendant and Ms. Dixon to a nearby hotel. On the way,

Ms. Dixon noticed that the Defendant was “acting really funny.” Ms. Dixon explained

that the Defendant “kept looking in the rearview mirror, kept looking in the passenger

side mirrors, kept looking behind him[,] and stuff.” According to Ms. Dixon, the

Defendant told Mr. Buchanan as they drove to the hotel that he “might want to get that

f--king [cell phone] number changed.” When asked why, the Defendant replied, “[D]on’t

worry about it. This ain’t my first rodeo.”

After arriving at the hotel, the Defendant paid for a room and got the garbage bag

and his sweatshirt out of Mr. Buchanan’s car. The Defendant and Ms. Dixon went to

their room where they smoked “some dope.” Ms. Dixon recalled that the Defendant put

the garbage bag under the sink in the bathroom and did not let her get near it. At some

point, the Defendant left and returned with items he bought at a convenience store along

with “more dope.” Before they checked out, the Defendant changed his clothes and put

the clothes he had been wearing in the garbage bag. Ms. Dixon and the Defendant then

made their way back to the Thornhill Trailer Park where they parted ways.

Ms. Dixon admitted that she never saw the Defendant hit the victim. Ms. Dixon

also admitted that she saw no blood in the victim’s apartment or on the Defendant’s

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clothing. However, Ms. Dixon “didn’t look” for blood that morning. Ms. Dixon further

admitted that she was unaware that the victim was dead until she spoke to detectives

several days later.

Mr. Buchanan testified at trial that he knew the Defendant “through a mutual

friend” and that they had “a business kind of relationship.” Mr. Buchanan explained that

he sold drugs and that in November 2010 he had told the Defendant that he would trade

drugs for a television. The Defendant told Mr. Buchanan that “he would let [Mr.

Buchanan] know when he got the television.” During the early morning hours of

November 24, 2010, the Defendant texted Mr. Buchanan and said that “he had something

for [Mr. Buchanan]” and “to come pick it up,” but that it had to be done “before sunrise.”

The Defendant then called Mr. Buchanan and gave him directions to the victim’s

apartment. Mr. Buchanan had never been to the apartment before and did not know the

victim.

Mr. Buchanan met the Defendant outside of the victim’s apartment. Mr.

Buchanan spoke to the Defendant, and Ms. Dixon got into Mr. Buchanan’s car. Mr.

Buchanan and the Defendant then went to the victim’s door. According to Mr.

Buchanan, a television and a Blu-ray player were by the victim’s door. Mr. Buchanan

claimed that he took only “one step” inside the victim’s apartment as he helped the

Defendant carry the television back to his car. Mr. Buchanan admitted that he did not see

any blood in the victim’s apartment, but the apartment was dark and he was not looking

for blood. Mr. Buchanan also did not see any blood on the Defendant’s clothes, but he

again was not looking for blood and could not recall what the Defendant was wearing

that morning. The Defendant and Mr. Buchanan put the television and the Blu-ray player

in Mr. Buchanan’s car. Mr. Buchanan recalled that the Defendant also had “a little

plastic bag” with “clothes or something” that he put in Mr. Buchanan’s car.

Mr. Buchanan drove the Defendant and Ms. Dixon to a nearby hotel. Along the

way, Mr. Buchanan asked to buy the cell phone the Defendant had with him, but the

Defendant said “he couldn’t sell it to” Mr. Buchanan. Mr. Buchanan recalled that the

Defendant “may have told [Mr. Buchanan] to change his number or something.” At the

hotel, Mr. Buchanan paid the Defendant for the television and Blu-ray player. The

Defendant went inside and rented a room and came back to get Ms. Dixon. Mr.

Buchanan sold the television and Blu-ray player to his cousin. Later that day, Mr.

Buchanan met the Defendant at the Thornhill Trailer Park to pay the Defendant the rest

of the money he owed for the television and Blu-ray player.

On the evening of November 25, 2010, the victim’s family called police to request

a welfare check on the victim because he did not show up for Thanksgiving dinner and

did not answer his phone. The responding officers found the victim’s car parked outside

his apartment and the door locked. The officers entered the apartment and it “smelled

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like death.” The only light on in the apartment was in a bathroom by the front door. The

apartment was messy but there were no “signs of struggle” inside. The officers found the

victim’s body lying on the couch. The victim was covered with a blanket up to his chest,

his “arms exposed,” and a red jacket covering his head. There was “a lot of blood in the

area where [the body] was laying” as well as “blood splatter on the wall and . . . on the

ceiling.” The responding officers exited the apartment and called for investigators to

respond to the scene.

Maryville Police Department Sergeant Ronnie Pryor was the investigator “on call”

that evening. Sgt. Pryor recalled that there was a red “fleece jacket covering the

[victim’s] head” that “was soaked in blood” and that had dried blood and “some skull

fragments” in the area where it had covered the victim’s wounds. Former Maryville

Police Department Investigator Donnie Debuty3 recalled that the victim’s “skull was

busted open[,] . . . it was just like his head was flat in places.” “The majority” of the

blood from the victim’s wounds had seeped “down into the arm of the couch.” The

investigators also found “some bone fragments down in [that area of] the couch.” Blood

spatter was found throughout the living room, but most of it was concentrated in the area

around the couch.

The investigators found a box for a cell phone but were unable to locate the

victim’s cell phone in his apartment. The investigators obtained the records for the

victim’s cell phone. The victim’s cell phone records revealed that there were thirteen

phone calls to and from the victim’s cell phone and Mr. Buchanan between 2:43 and 4:44

a.m. on November 24, 2010. There was also a text message from the victim’s cell phone

to Mr. Buchanan at 3:20 a.m. that morning which stated that it was “Kevin,” that he had

“that,” and that Mr. Buchanan needed to call him “back tonight” or he was doing

“something else with it” because he could not “keep it till dawn.”

Using Mr. Buchanan’s cell phone number found in the victim’s cell phone records,

the investigators located Mr. Buchanan and questioned him. Mr. Buchanan told the

investigators about the television and Blu-ray player he had bought from the Defendant

and that he had dropped off the Defendant and Ms. Dixon at a Comfort Inn Suites. The

investigators retrieved a receipt from the hotel showing that “Bryan Thomas” had

checked in at 5:15 a.m. on November 24, 2010, and paid for his room with cash. The

investigators also found security camera footage from a convenience store located near

the hotel showing the Defendant’s making a purchase at approximately 9:00 a.m. on

November 24, 2010, and wearing the clothing described by Ms. Dixon.

3

Investigator Debuty was the lead investigator in this case but had been terminated from the Maryville

Police Department prior to trial for his mishandling of evidence in an unrelated case.

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Mr. Buchanan arranged for the investigators to meet his cousin so they could seize

the television and Blu-ray player. The serial numbers on the television and Blu-ray

player matched the serial numbers found on boxes at the victim’s apartment. The

investigators found what they believed to be blood stains on the television and Blu-ray

player and took samples for forensic testing. Later forensic testing by the Tennessee

Bureau of Investigation showed that the sample taken from the television was negative

for the presence of blood. However, the sample taken from the Blu-ray player tested

positive for blood and was a partial match to the victim’s DNA.

Mr. Buchanan also took the investigators to the Thornhill Trailer Park where he

had last seen the Defendant. The investigators took the Defendant into custody at the

trailer park. When they interviewed the Defendant, he initially denied being at the

victim’s apartment on the morning of November 24, 2010. However, the Defendant

eventually admitted to being at the victim’s apartment and stealing the victim’s television

and Blu-ray player. The Defendant insisted that he did not kill the victim. One of the

investigators saw what he believed to be blood on the Defendant’s shoes and seized them.

Later forensic testing by the Tennessee Bureau of Investigation revealed that there was

blood on the Defendant’s shoes and that it matched the victim’s DNA. The Defendant

claimed that when he was arrested, he was wearing the same clothes he wore on

November 24, 2010, but, except for his shoes, the clothes were not the same as those seen

on security camera footage from the convenience store.

No weapon was ever found. Neither was the black bag Ms. Dixon testified that

the Defendant had that morning nor the clothes the Defendant was wearing. The

investigators searched Mr. Buchanan’s car, but found no evidence of blood inside it. The

investigators did not attempt to recover fingerprints from the victim’s television stand or

the television and Blu-ray player. The investigators did obtain a recording of a phone call

the Defendant made from jail to his mother on November 28, 2010. In the recording, the

Defendant stated that he was “in trouble” and that “[h]e scared me, Mama, he scared

me[,] . . . I thought he was going to kill me, Mama.” The investigators also obtained a

recording of a jail phone call the Defendant made to his mother on November 29, 2010.

In that recording, the Defendant said that Ms. Dixon was lying because she was in the

bathroom and “she didn’t even see nothing [sic] was going on.”

Doctor Steven Cogswell, an expert in forensic pathology, performed an autopsy on

the victim’s body on November 26, 2010. Dr. Cogswell noted that when he examined the

victim’s body, rigor mortis had “faded” and lividity had set in. Dr. Cogswell also noted

that “some early decomposition had started” as evidenced by greenish discoloration

“mostly prominent around his head and neck area, primarily in his face.” Given that

decomposition had started in the victim’s body, Dr. Cogswell opined that the victim had

been dead “probably about two days or so” prior to the autopsy.

-6-

The victim suffered a laceration along his left jawline and abrasions on his left

neck and chest. The victim “had a significant number of blunt force injuries, primarily

on the front and right side of his head.” The lacerations to the front of the victim’s head

were “quite deep and actually [went] through the skull and into the brain” with “multiple

skull fractures associated with them.” On the right side of the victim’s head above the

victim’s ear were three lacerations in the shape of an “H.” In total, Dr. Cogswell

identified eight major lacerations suggesting “at least eight distinct blows” to the victim’s

head. Dr. Cogswell explained that the lacerations were “all linear . . . but not all running

parallel” and this “most likely” meant that they each represented “a separate blow.”

Dr. Cogswell explained that when the victim’s head was raised “a little bit,” “all of

the underlying skull . . . all the way down to the face and certainly up into the area

covering the brain, ha[d] been fractured. And fractured into enough small pieces that [the

victim’s head] actually starting to sink in.” Put another way, “[t]hat whole area [was]

crushed in.” Dr. Cogswell also found that the victim’s brain had been “pulped.” Dr.

Cogswell explained that the “[f]rontal parietal and temporal lobes” of the victim’s brain

had “been essentially chopped up mostly by the edges of . . . the broken pieces of the

skull being driven into them by the multiple hits.” The combination of “all the blows that

essentially crushed in the right side of [the victim’s] skull . . . were ultimately fatal,” and

the victim likely died within a few minutes of being struck.

Dr. Cogswell was unable to determine if the victim had been hit by a single object

or multiple objects. Dr. Cogswell was also unable to determine specifically what was

used to hit the victim, but could generalize that it was “a relatively heavy blunt object.”

Dr. Cogswell consulted with a forensic anthropologist, Doctor Murray Kevin Marks, to

reconstruct the victim’s skull and attempt to determine how many times the victim was

struck. Dr. Marks reconstructed the victim’s skull, but some of the bone fragments were

“broken to such a fine degree that [he] couldn’t glue them back together.” Dr. Marks

determined that the victim suffered “at least four strikes to the skull, four penetrating

wounds; two to the front and two to the side.” Dr. Marks opined that the wounds were

inflicted “[w]ith a lot of force.”

Paulette Sutton, an expert in blood stain pattern analysis, testified at trial on behalf

of the Defendant. Ms. Sutton opined that the victim was lying down when he was struck.

Based on the fact that some of the blood on the couch had clotted, Ms. Sutton opined that

the victim was struck and that at least six to eight minutes passed before he was struck

again. Ms. Sutton also opined that the victim was initially struck without the red jacket

covering his face, that the jacket was placed over his head “later in the assault,” and that

the victim was then struck again.

Ms. Sutton opined that “it would be very difficult for . . . an assailant not to have

gotten blood spatter on them” given “the amount of distribution of the spatter” at the

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crime scene. Based on the stains on the Defendant’s shoes and the forensic testing

showing that the stains were caused by the victim’s blood, Ms. Sutton opined that the

Defendant’s shoes “were in the proximity of a spatter-producing event.” Ms. Sutton

admitted that “a covering over [the] torso,” like an apron, would allow a person to leave

the crime scene without having blood spatter on their clothes. Ms. Sutton also admitted

that it would be more difficult to see blood spatter on dark clothing or in dim lighting.

Based upon the foregoing, the jury convicted the Defendant of first degree felony

murder, theft of property valued at more than $500 but less than $1000, and the

lesser-included offense of second degree murder. The trial court held a sentencing

hearing on July 15, 2013, where it merged the Defendant’s second degree murder

conviction into his first degree murder conviction and imposed a total effective sentence

of life. A motion for new trial was filed on August 9, 2013. On October 30, 2017, the

trial court held a hearing on the Defendant’s motion for new trial where it denied the

motion and approved the jury’s verdict as the thirteenth juror.4 The Defendant now

appeals to this court.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to sustain his

convictions for first degree felony murder and second degree murder. The Defendant

essentially argues that the State failed to prove that he was the perpetrator of the offense.

Specifically, the Defendant argues that he would not have been able to kill the victim in

the two to four minutes Ms. Dixon testified that she was in the bathroom, that the victim

was killed more than forty-eight hours prior to the autopsy, and that the perpetrator would

likely “have been covered in blood at least from the waist up.” The State responds that

the evidence was sufficient to sustain the Defendant’s convictions for first degree felony

murder and second degree murder.

An appellate court’s standard of review when the defendant questions the

sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury

has resolved all conflicts in the testimony and drawn all reasonable inferences from the

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness

4

There is no explanation in the record for the four-year delay between the filing of the motion for new

trial and the motion for new trial hearing.

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credibility, conflicts in testimony, and the weight and value to be given to evidence were

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely

upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d

125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s

proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.

1983). Put another way, the State is not burdened with “an affirmative duty to rule out

every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at

326.

The foregoing standard “applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”

State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and

circumstantial evidence should be treated the same when weighing the sufficiency of

such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this

court “on appeal of a conviction is not to contemplate all plausible inferences in the

[d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of

the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011). Additionally, the identity of

the perpetrator “is an essential element of any crime.” State v. Rice, 184 S.W.3d 646,

662 (Tenn. 2006). However, the perpetrator’s identity “may be established solely on the

basis of circumstantial evidence.” State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010).

Here, first degree felony murder is the “killing of another committed in the

perpetration of or attempt to perpetrate . . . [a] theft[.]” Tenn. Code Ann. § 39-13-

202(a)(2) (2010). “No culpable mental state is required for conviction” of first degree

felony murder, “except the intent to commit the enumerated” offense. Tenn. Code Ann. §

39-13-202(b) (2010). Theft occurs when a person, “with intent to deprive the owner of

property, . . . knowingly obtains or exercises control over the property without the

owner’s effective consent.” Tenn. Code Ann. § 39-14-103 (2010).

“The felony murder rule applies when the killing is ‘done in pursuance of the

unlawful act, and not collateral to it.’” State v. Thacker, 164 S.W.3d 208, 223 (Tenn.

2005) (quoting Farmer v. State, 296 S.W.2d 879, 883 (Tenn. 1956)). Nonetheless, “[t]he

killing may precede, coincide with, or follow the felony and still be considered as

occurring ‘in the perpetration of’ the felony offense, so long as there is a connection in

time, place, and continuity of action.” Id. (internal quotation marks omitted) (quoting

State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999)). The jury “may reasonably infer

from a defendant’s actions immediately after a killing that the defendant had the intent to

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commit the felony prior to, or concurrent with, the killing.” Id. (internal quotation marks

omitted) (quoting Buggs, 995 S.W.2d at 106).

Also as pertinent to our review, second degree murder is the “knowing killing of

another.” Tenn. Code Ann. § 39-13-210(a)(1) (2010). Second degree murder is a result

of conduct offense. State v. Brown, 311 S.W.3d 422, 431 (Tenn. 2010). Therefore, 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.” Tenn. Code Ann. §

39-11-302(b).

Here, there was ample evidence to establish the Defendant’s identity as the

perpetrator of the victim’s murder. Ms. Dixon testified that while they were at the

victim’s apartment, the Defendant stated that he was “going to have to knock this mother

f--ker out.” The Defendant also made numerous phone calls with Mr. Buchanan

arranging to sell the victim’s television and Blu-ray player to him and giving him

directions to the victim’s apartment. The Defendant told Ms. Dixon that they were about

to leave and to go to the bathroom. On her way to the bathroom, the Defendant

whispered to her that she should “stay in there for a few minutes.” The Defendant later

opened the door to the bathroom with “a blank kind of stare on his face.”

When Ms. Dixon exited the bathroom, all of the lights in the victim’s apartment

were off and the Defendant had blocked the path to the living room with the victim’s

television. Ms. Dixon saw a red jacket covering the victim’s face that had not been there

when she went to the bathroom. Ms. Dixon testified that the Defendant “pushe[d] [her]

out of the apartment” and that they waited for Mr. Buchanan outside in the cold. The

Defendant removed his sweatshirt and turned it inside out prior to getting into Mr.

Buchanan’s car. The Defendant also had a black garbage bag that he eventually put his

clothes into and that he would not let Ms. Dixon near once they arrived at their hotel

room. Blood was found on the victim’s Blu-ray player that was a partial match to the

victim’s DNA. More importantly, the victim’s blood was found on the Defendant’s

shoes. The Defendant also made incriminating statements during phone calls to his

mother shortly after his arrest.

The Defendant argues that “[t]he timelines and the physical evidence . . . do not

support” the conclusion that he murdered the victim during the theft of the victim’s

television and Blu-ray player. However, the questions of how long Ms. Dixon was in the

bathroom, the victim’s exact time of death, and why Ms. Dixon and Mr. Buchanan did

not recall seeing blood on the Defendant are all questions regarding witness credibility,

conflicts in testimony, and the weight and value to be given to evidence that were

resolved by the jury. See Bland, 958 S.W.2d at 659. We will not disturb the jury’s

determinations on appeal. Accordingly, we conclude that the evidence was sufficient to

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sustain the Defendant’s convictions for first degree felony murder and second degree

murder.

II. Autopsy Photograph

The Defendant contends that the trial court erred in admitting an autopsy

photograph. The Defendant argues that the photograph was overly gruesome, did not aid

the trier of fact, and was duplicative of “other photographs admitted” into evidence. The

State responds that the trial court did not abuse its discretion in admitting the photograph.

Prior to Dr. Cogswell’s testimony, the trial court held a jury-out hearing on six

autopsy photographs the State sought to admit. Dr. Cogswell testified that the first

photograph showed the victim “as-is” at the start of the autopsy and the second

photograph showed the injuries to the left side of the victim’s face, neck, and chest.

These photographs were in color to show “the extent of decomposition.” Dr. Cogswell

testified that these photographs needed to be shown in color to show the discoloration and

decomposition of the victim’s body in order to estimate the victim’s time of death.

The next photograph showed the destruction of the victim’s skull with the head

“kind of collapsing [on] the right side of the face.” The State sought to have this

photograph admitted in color. The next three photographs illustrated a sequential “walk

around from the front to the right side [of the victim’s head] . . . to track the series of

injuries.” Dr. Cogswell explained that in each photograph of the series, “a particular

injury or a pair of injuries [was] seen more clearly than in [the] other photographs.” Dr.

Cogswell testified that no one photograph could show all of the victim’s injuries given

the curve of the victim’s head and that it was impossible to understand the full extent of

the victim’s injuries without showing all three photographs in sequential order.

At the conclusion of the Dr. Cogswell’s jury-out testimony, defense counsel

objected to the admission of the second of the three sequential photographs. Defense

counsel argued that this photograph was duplicative of the other two. The trial court

noted that it did not believe that the photographs were overly gruesome. The trial court

allowed the first two photographs to be shown in color, but ordered that the remaining

photographs be shown in black and white. The trial court ruled that the objected

photograph was not duplicative. The trial court accredited Dr. Cogswell’s testimony that

it demonstrated some injuries more clearly than the other photographs and was necessary

to demonstrate the full extent of the victim’s injuries.

The admissibility of photographs is governed by Tennessee Rules of Evidence 401

and 403. See State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). Under these rules, the

trial court must determine, first, whether the photograph is relevant. Tenn. R. Evid. 401;

Banks, 564 S.W.2d at 949. Next, the trial court must determine whether the probative

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value of the photograph is substantially outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 403; Banks, 564 S.W.2d at 950-51. “Unfair prejudice” is an “undue

tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.” Banks, 564 S.W.2d at 951.

Tennessee courts follow a liberal policy in the admission of photographs in both

civil and criminal cases. Banks, 564 S.W.2d at 949. As such, whether to admit a

photograph rests within the sound discretion of the trial court and will not be reversed

absent a clear showing of an abuse of that discretion. Id.; see also State v. Dickerson,

885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692 S.W.2d 651, 654 (Tenn.

Crim. App. 1985).

“Graphic, gruesome, or even horrifying photographs of crime victims may be

admitted into evidence if they are relevant to some issue at trial and probative value is not

[substantially] outweighed by their prejudicial effect.” State v. Brock, 327 S.W.3d 645,

694 (Tenn. Crim. App. 2009). Autopsy photographs, in particular, must never be used

“solely to inflame the jury and prejudice them against the defendant” and must be

relevant to prove some material aspect of the case. Banks, 564 S.W.2d at 951.

Additionally, this court has held that “photographs are not necessarily rendered

inadmissible because they are cumulative of other evidence or because descriptive words

could be used.” State v. Derek Williamson, No. M2010-01067-CCA-R3-CD, 2011 WL

3557827, at *9 (Tenn. Crim. App. Aug. 12, 2011).

Here, the trial court held a jury-out hearing to review all of the photographs the

State sought to admit. The Defendant challenged only one of the photographs, the second

of the three sequential photographs. In allowing admission of the photograph, the trial

court accredited Dr. Cogswell’s testimony that the photograph demonstrated some

injuries more clearly than the other two and was needed to help demonstrate the full

extent of the victim’s injuries. Accordingly, we conclude that the trial court did not

abuse its discretion in admitting this photograph.

Moreover, the challenged photograph was no more gruesome than the other

autopsy photographs the Defendant did not challenge. In fact, it was less gruesome than

the photograph showing the destruction of the victim’s skull with the head “kind of

collapsing [on] the right side of the face,” which the Defendant did not object to.

Therefore, even if the admission of the challenged photograph was error, it would

ultimately have been harmless error. See State v. Foust, 482 S.W.3d 20, 49 (Tenn. Crim.

App. 2015) (holding that admission of the challenged autopsy photograph was harmless

error when “several other graphic and gruesome autopsy photographs [were] admitted”

without objection from the defendant).

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III. Hearsay Testimony

The Defendant contends that the trial court erred in excluding hearsay testimony

from a proposed witness that, a few weeks prior to the murder, the victim was “worried”

because his car was vandalized. The Defendant argues that this testimony fell “under the

[hearsay] exception of the declarant’s then existing state of mind.” The Defendant sought

to use this testimony to argue that the victim was killed by an unknown third person and

to “impeach the reliability of the police investigation.” The State responds that the trial

court did not err in excluding the testimony.

During a jury-out hearing, the Defendant presented the testimony of Shannon

Malanga. Ms. Malanga testified that she was a friend of the victim. Ms. Malanga

testified that she had a conversation with the victim while they were at work “[a] few

weeks prior” to the victim’s murder. According to Ms. Malanga, the victim told her that

he and a man he had met at a local bar were “playing pool at [the victim’s] house.” This

man “was not aware that [the victim] was homosexual and when that came out[,] . . . this

man got angry.” Ms. Malanga testified that the victim told her that the man “had thrown

a rock through his window and his car.” Ms. Malanga testified that the victim was “[n]ot

scared,” but “was frustrated” and “[w]orried.” Ms. Malanga further testified that the

victim told her that “if anything happened to him to investigate” the bar where he had met

the man and that he had asked his landlord to install security cameras “in his parking lot.”

The trial court ruled that Ms. Malanga’s testimony was not relevant to this case

and that it did not satisfy the hearsay exception for the declarant’s then existing state of

mind because it was being offered to prove the conduct of a third party rather than the

declarant.

“Hearsay” is defined as “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). A “statement” is “(1) an oral or written assertion or (2)

nonverbal conduct of a person if it is intended by the person as an assertion.” Tenn. R.

Evid. 801(a). Hearsay is not admissible except as allowed by the rules of evidence or

other applicable law. Tenn. R. Evid. 802. The questions of whether a statement is

hearsay or fits under one of the exceptions to the hearsay rule are questions of law and

subject to de novo review by this court. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.

2015), cert. denied, 136 S. Ct. 335 (2015).

One exception to the prohibition against hearsay is “[a] statement of the

declarant’s then existing state of mind, emotion, sensation, or physical condition (such as

intent, plan, motive, design, mental feeling, pain, and bodily health)[.]” Tenn. R. Evid. §

803(3). “[D]eclarations of mental state will be admissible to prove [the] mental state at

issue or subsequent conduct consistent with that mental state.” Tenn. R. Evid. § 803(3),

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Advisory Comm’n cmt. However, “only the declarant’s conduct, not some third party’s

conduct is provable by this hearsay exception.” Id.; see also State v. Howard, 504

S.W.3d 260, 282-83 (Tenn. 2016) (quoting the Advisory Commission Comment and

holding that the state of mind hearsay exception does not apply to a third party’s

conduct). We agree with the trial court that the hearsay testimony was not offered to

prove the victim’s then state of mind or subsequent conduct, but to prove the conduct of a

third party. Specifically, the Defendant sought to introduce the testimony to prove that an

unknown third person killed the victim or to “impeach the reliability of the police

investigation.” Accordingly, we conclude that the trial court did not err in excluding Ms.

Malanga’s testimony.

The Defendant also argues that the trial court’s exclusion of Ms. Malanga’s

testimony violated his constitutional right to present a defense. However, the Defendant

raises this argument for the first time on appeal. As such, the Defendant has waived

plenary review of this issue. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim.

App. 1996) (stating that “issues raised for the first time on appeal are waived”). Nor has

the Defendant established that plain error review is warranted. Here, consideration of the

Defendant’s argument is not necessary to do substantial justice. State v. Minor, 546

S.W.3d 59, 67 (Tenn. 2018). The evidence of the Defendant’s guilt in this case was

overwhelming. Moreover, the Defendant spent a significant portion of the trial

attempting to “impeach the reliability of the police investigation.” Likewise, the

Defendant cross-examined Ms. Dixon and Mr. Buchanan extensively in an attempt to

show that the victim was still alive when the Defendant left his apartment. Accordingly,

we conclude that plain error review of this argument is not warranted.

IV. Thirteenth Juror

The Defendant contends that the trial court failed to fulfill its duty as the thirteenth

juror. The Defendant argues that the trial court should have rejected the jury’s verdicts

because the evidence was not sufficient to sustain the Defendant’s convictions. The State

responds that the trial court fulfilled its duty as the thirteenth juror when it stated that it

approved the jury’s verdicts.

Tennessee Rule of Criminal Procedure 33(d) provides that “[t]he trial court may

grant a new trial following a verdict of guilty if it disagrees with the jury about the weight

of the evidence.” This is the modern equivalent of the thirteenth juror rule and “imposes

upon a trial court judge the mandatory duty to serve as the thirteenth juror in every

criminal case, and that approval by the trial judge of the jury’s verdict as the thirteenth

juror is a necessary prerequisite to imposition of a valid judgment.” State v. Biggs, 218

S.W.3d 643, 653 (Tenn. Crim. App. 2006) (internal quotation marks omitted) (quoting

State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)).

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It is only when “the record contains statements by the trial judge expressing

dissatisfaction with the weight of the evidence of the jury’s verdict, or [evidence]

indicating that the trial court absolved itself of its responsibility to act as the thirteenth

juror, [that] an appellate court may reverse the trial court’s judgment” on the basis that

the trial court failed to carry out its duty as the thirteenth juror. Carter, 896 S.W.2d at

122. “[T]he accuracy of a trial court’s thirteenth juror determination is not a subject of

appellate review.” State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995).

Here, the record is clear that the trial court fulfilled its duty as the thirteenth juror.

The trial court expressly stated at the conclusion of the Defendant’s motion for new trial

hearing that it approved the jury’s verdicts as the thirteenth juror. Additionally, the trial

court denied the Defendant’s motion for new trial. See Biggs, 218 S.W.3d at 653

(providing that we “may presume the trial court approved the verdict as the thirteenth

juror” when it has overruled a motion for new trial without comment). The Defendant’s

thirteenth juror claim is merely an attack on the sufficiency of the convicting evidence. A

claim that the trial court failed to fulfill its duty as the thirteenth juror “is not a proper

vehicle to challenge the sufficiency of the convicting evidence.” State v. Leath, 461

S.W.3d 73, 115 (Tenn. Crim. App. 2013). Accordingly, we conclude that this issue is

without merit.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of

the trial court are affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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