State of Tennessee v. Humberto Morales, Mario Garcia Flores, and Keyona Martina Newell

09/18/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 14, 2020

STATE OF TENNESSEE v. HUMBERTO MORALES, MARIO GARCIA

FLORES, AND KEYONA MARTINA NEWELL

Appeal from the Circuit Court for Williamson County

Nos. II-CR-068090-C, II-CR-068090-D, II-CR-068090-E Deanna B. Johnson,

Judge

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No. M2019-00435-CCA-R3-CD

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The Defendants, Humberto Morales, Mario Garcia Flores, and Keyona Martina Newell,

(collectively “the Defendants”) were convicted of aggravated robbery, two counts of

aggravated burglary, theft of property valued at $1,000 or more, and conspiracy to

commit aggravated robbery. Mr. Flores also was convicted of possession of a firearm

during the commission of a dangerous felony and employment of a firearm during the

commission of a dangerous felony. After merging various convictions, the trial court

ordered Mr. Morales to serve an effective sentence of forty-eight years, Mr. Flores to

serve an effective sentence of thirty years, and Ms. Newell to serve an effective sentence

of twenty-four years. On appeal, the Defendants, either collectively or individually,

challenge: (1) the sufficiency of the evidence supporting the convictions; (2) the trial

court’s denial of a motion to suppress based upon the constitutionality of the stop of the

vehicle in which some of the perpetrators fled the scene; (3) the trial court’s denial of a

continuance based upon the State’s late disclosure of discovery materials; (4) the trial

court’s decision to admit expert testimony of evidence extracted from the perpetrators’

cell phones; (5) the trial court’s denial of Mr. Morales’s motion for mistrial after Ms.

Newell’s counsel questioned a witness about evidence that the trial court previously ruled

to be inadmissible; (6) the trial court’s failure to issue an accomplice instruction; and (7)

the trial court’s imposition of consecutive sentences. We affirm the judgments of the trial

court.

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

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

GLENN and ROBERT W. WEDEMEYER, JJ., joined.

Eric M. Larsen, Franklin, Tennessee, for the appellant, Humberto Morales.

Cayley J. Turrin, Brentwood, Tennessee (on appeal), and Jonathan Turner, Franklin,

Tennessee (at trial), for the appellant, Mario Garcia Flores.

Nichole Dusche (on appeal) and Sandra Wells (at trial), Franklin, Tennessee, for the

appellant, Keyona Martina Newell.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Kim R. Helper, District Attorney General; and Tammy Rettig and

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

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

The Defendants, along with the co-defendants, Mr. Maurice Chapman, Ms. Emily

Faulkner, and Ms. Elizabeth Pittman, were charged with various offenses in connection

with the home invasion and robbery of the victim, Mr. James Reece Ewton, on February

26, 2014, in Franklin, Tennessee. The State tried Mr. Morales, Mr. Flores, and Ms.

Newell together, and Ms. Faulkner testified for the prosecution. The State presented

evidence at trial that Mr. Morales planned the home invasion, along with Ms. Pittman, the

victim’s former girlfriend. Mr. Flores, Ms. Newell, Mr. Chapman, Ms. Faulkner, and a

man identified as “Raoul” conducted the home invasion and took numerous items from

the victim’s home while holding the victim at gunpoint. They fled in a van and led police

officers on a chase to an apartment complex in Nashville where all but Ms. Faulkner

jumped out of the van and fled on foot before the van crashed into a light pole. Police

officers were able to apprehend and arrest all of the participants of the home invasion

except for Raoul. Mr. Morales was arrested during a traffic stop several days later. The

van contained items from the victim’s home, but many of the items were damaged when

the van crashed.

The State’s Proof at Trial

The victim, who worked out of his home in Franklin, testified that at 8:00 or 9:00

a.m. on the morning of the home invasion, he and his neighbor exchanged text messages

about meeting for coffee. As the victim was getting into the shower prior to the meeting,

he heard the doorbell ring but chose to ignore it because he believed a sales person was

likely at his door. Following his shower, he entered his bedroom located downstairs to

put on his clothes and heard the “door chime,” which indicated that someone was

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opening the front door. Assuming his neighbor had entered his house, the victim yelled,

“Hello.”

The victim testified that a man entered his bedroom and pointed a black revolver

at him. The victim described the man as Hispanic with dark hair, a dark complexion, a

smaller frame, and what appeared to be acne scars on his face. The man was wearing a

light-colored shirt, light gray khaki pants, and gray shoes. The victim was able to see

inside the gun as the man was pointing it in his face and stated that the gun was loaded

with copper, hollow point bullets. The victim was naked, unarmed, and afraid.

The man ordered the victim to get on the ground and told the victim either that

someone had a problem with the victim or that the victim had made someone angry. The

victim noted that the man did not have “much of an accent.” The man motioned for the

victim to go into the bathroom and ordered him to get down on the ground, and the victim

complied. The man then ordered the victim to go into the attached closet, and the victim

crawled into the closet and laid down on his stomach.

The victim testified that another man, who appeared to be Hispanic, entered the

room. The victim described the man as having a small frame and wearing a hoodie with

the word “Affliction” on it. The victim later testified that the man also was wearing a

plaid mask. The man did not appear to speak English, and he and the first man spoke to

each other in Spanish while pointing a gun at the victim’s head. The two men used ties

from the victim’s tie rack to bind the victim’s hands and feet. At one point, the man

wearing the plaid mask pulled the hammer back on the revolver.

A third man also entered the closet. The victim described the man as wearing a

dark shirt, dark pants, a black hoodie, and a black mask with dreadlocks sticking out from

underneath the mask. The victim stated that the man appeared to be speaking to someone

either on a cell phone or through “earbuds.” The man appeared to be listening to

someone and then said, “[U]p top, up top, up top.” The victim believed the men were

searching for his Colt AR-15 rifle that he kept in a gun case on the top shelf of his closet.

The victim said the men knew exactly where the rifle was located. The man in the black

mask grabbed the gun case off the shelf, removed the rifle, pointed it at the victim’s head,

and demanded to know the location of the victim’s safe, watches, and cash. The victim

stated that the man seemed to be attempting to mask his voice. The victim told the man

that the safe was located upstairs.

The men took from the closet ammunition and two gun boxes containing a .22

caliber rifle and a .22 caliber pistol and loaded them into a green backpack. The three

men pulled the victim up and walked him to the stairs. The victim was naked, and his

hands and feet were bound. He testified that while walking to the stairs, he looked

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around and saw that his living room was “destroyed,” that his television was missing, and

that his belongings were “all over the place.” The victim saw a “heavier set,” Caucasian

woman, who had blonde hair and was wearing a blue shirt, standing at the front door.

The victim saw another person with a white covering over his or her face standing at the

front area of the house.

The men took the victim upstairs to the guest bedroom, pushed him down on the

ground, and demanded to know the location of the key to his safe. The victim told them

that the key was in the top drawer of the dresser. The man in the black mask gave the

key to the unmasked man, and they went into the closet where the safe was located while

the man in the plaid mask stood outside the closet with a gun.

The victim heard doors slamming and items breaking, and at one point, he heard

someone in the attic. During the commotion, the men grabbed a bib from the playroom

of the victim’s daughter, stuffed it into the victim’s mouth, and tied a shirt around the bib

to hold it in place, which made it difficult for the victim to breathe. At one point, the man

in the plaid mask removed a hollow point bullet from the revolver and showed it to the

victim in an effort to intimidate him. After the three men left the guest bedroom, the

victim heard people making noise downstairs, and then it became quiet.

The victim testified that once he believed the intruders had left, he was able to

untie his hands and removed the shirt from around his mouth. He walked around the

house to make sure that everyone had left and noticed that his front door was open. He

cut the tie from around his legs using a knife from the kitchen and then put on his clothes.

The intruders had taken both of his iPhones, so he ran to the home of his neighbor, Mr.

Simon Shelton, to call the police.

The victim told Mr. Shelton that he had been robbed and to call the police. The

victim testified that he was “freaked out” and “terrified.” Mr. Shelton called 911, and

they used the “Find My iPhone” program to track the location of the victim’s iPhone that

had been taken by the intruders. They relayed the location of the iPhone to the 911

operator. The victim told the operator that one of the intruders had dreadlocks and

described various items that were taken, including the guns. The victim never saw the

vehicle in which the intruders fled. Police officers came to Mr. Shelton’s home and

accompanied the victim back to his house to conduct a walk-through.

The victim testified regarding the items taken from each room in his home and the

estimated cost for each item. A Fender Stratocaster guitar and Guild bass were taken

from the dining room, and while they were later returned to the victim, they were

damaged when the van in which the intruders fled wrecked. Two MacBook laptops, at an

estimated cost of almost $2,000 each; an iPhone, at an estimated cost of $500 to $700; an

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iPod, at an estimated cost of $200; several hard drives; and his personal checks were

taken from his office. Officers later gave these items back to the victim, but the laptops

and hard drives were damaged. The victim’s wallet, containing $400 to $500 in cash, and

his Rolex watch, with an estimated cost of $8,000, were taken from the kitchen. The

watch was later returned. Items taken from the victim’s living room included a Samsung

forty-six-inch LED 3D television, for which he paid around $2,600, and a sound bar and

subwoofer, for which he paid around $150 each. Although officers later returned the

items to the victim, he was unable to use them because the items were damaged in the

collision. Items taken from his downstairs closet included an AR-15 rifle for which he

paid around $1,600, a gun for which he paid $1,200, and another gun for which he paid

$400 to $500, and these items were later returned to the victim. A Samsung forty-six-

inch LED television with an estimated cost of $2,600 and an X-Box game console with

an estimated cost of $300 to $400 were taken from the upstairs guest bedroom. Although

the items were later returned to the victim, they were damaged and no longer operational.

The intruders took a Rolex watch with an estimated cost of $5,500, cash in the amount of

$2,000, and two pistols with an estimated cost of $700 to $800 each from the safe, and of

these items, only one of the pistols was returned. The intruders also took approximately

$1,000 worth of ammunition, which the police later returned to the victim. Lastly, the

intruders took a Vizio television for which the victim paid $200 to $300 from his

daughter’s bedroom, and although the television was later returned, it was damaged.

The victim testified that his garage could be accessed through either an electric

garage opener or a code box. Inside his garage was an access door to enter his home.

Only his neighbors, who occasionally watched his dogs, and Ms. Pittman knew the code.

On several occasions while they were dating, Ms. Pittman stayed at his home and

watched his dogs when he was traveling, and she was familiar with the interior of his

home. The victim testified that following the home invasion, he suspected that Ms.

Pittman was involved because she was the one person who knew about the items in his

home. He ended his relationship with Ms. Pittman in September or October of 2013, four

or five months prior to the home invasion, due to her drug use. The victim did not

recognize any of the Defendants at trial.

On cross-examination, the victim testified that the Hispanic man who was not

wearing a mask and who initially entered his bedroom was not one of the Defendants at

trial. The victim stated that he assumed that this man was in charge or in control of the

home invasion at that time, but the victim did not know whether the man was in charge of

planning the home invasion. He also stated that while he recalled seeing someone

wearing an “Affliction” shirt, he did not recall which of the intruders was wearing it. The

victim identified Ms. Faulkner at the preliminary hearing as the woman whom he saw

standing beside the front door.

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Mr. Shelton testified that sometime after he and the victim exchanged text

messages about meeting for coffee on the morning of the offenses, the victim “kind of

busted through the front door” while looking frightened and stated that he had been

robbed at gunpoint. Mr. Shelton dialed 911 while the victim used his computer to log

onto the “Find My iPhone” application in an effort to track his iPhone. Both Mr. Shelton

and the victim spoke to the operator, reported what had occurred, and tracked the location

of the victim’s iPhone for the operator. Once police officers arrived, the victim returned

with them to his home, while Mr. Shelton continued to speak to the operator.

Detective Amy Cole with the Williamson County Sheriff’s Department testified

that she received a be-on-the-lookout alert (“BOLO”) from dispatch stating that a home

invasion and armed robbery occurred in Franklin during which guns were stolen.

According to the dispatch, the suspects included a Caucasian female and Hispanic males,

one of whom had dreadlocks. The dispatcher stated that an iPhone had been taken during

the home invasion, that the victim was using an iPhone locator application to track his

iPhone, and that the cell phone was “pinging” in different locations on Interstate 65 (“I-

65”). Detective Cole parked her unmarked, silver Ford Explorer on the side of I-65

North and listened to the dispatcher update the locations of the pings.

When the iPhone pinged close to the location where Detective Cole was parked,

she merged into traffic and drove slowly in an effort to observe the vehicles passing her.

She stated that she was searching for a vehicle with multiple occupants, including a

Caucasian woman and a person with dreadlocks. A white van that was traveling at a

slower speed than other traffic on the interstate passed Detective Cole, and she saw a

Caucasian woman sitting in the front passenger seat wearing a scarf on her head and

almost completely across her face. Detective Cole began following the van and reported

the van’s tag number to the dispatcher. The van was registered to Christian Colmenares.

The van had several windows, allowing Detective Cole to observe the occupants.

She stated that the occupants in the back of the van would lie down, rise up, and then lie

down again and that one of the occupants appeared to have dreadlocks. She continued to

update the dispatcher regarding her location and her observations. Detective Cole

testified that she requested assistance from marked patrol cars to stop the van.

Brentwood Police Officer Raymond Placentia testified that he responded to a

dispatch communication of a home invasion involving five suspects who were fleeing in

a vehicle traveling northbound on I-65. He heard a radio transmission of officers

following a white van that had exited I-65 onto Old Hickory Boulevard and then

determining that the white van was not involved. Officer Placentia stated that as a result

of the transmission, he assumed that he was searching for a white van. He continued

traveling on I-65 until he got behind a white van exiting onto Harding Place. He

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provided the dispatcher with the license plate number of the van, and the dispatcher

confirmed “that was the car involved.” Officer Placentia noticed that the occupants were

two African-American people, two Hispanic people, and a Caucasian woman. Officer

Placentia testified that “based on the totality of the circumstances,” he believed that the

van was involved in the home invasion.

Officer Placentia saw the vehicle in which Detective Cole was driving, and

Detective Cole moved out of the way to allow the officer to initiate a traffic stop. Once

Officer Placentia heard additional officers behind him, he activated his blue lights to

initiate a traffic stop. The van did not stop, and police officers pursued the van through

several streets in Nashville. Officer Placentia testified that the occupants in the back of

the van were moving around and did not appear to be wearing their seatbelts. Officers

pursued the van to an apartment complex where four of the occupants, including the

driver, jumped out of the van and fled while the van was still in motion. The van collided

with a light pole at the end of the parking lot. The fifth occupant, described as a heavy-

set, Caucasian woman, exited the vehicle, began to run, and was apprehended by a police

officer. Detective Cole testified that the woman was the front-seat passenger whom she

had observed with a scarf wrapped around her head.

Officer Placentia chased the driver, whom he identified at trial as Mr. Flores, into

the courtyard area and to the back of the parking lot. As Mr. Flores was running, he

reached into his pocket, pulled out a diskette, and threw it on the ground. Once Officer

Placentia got close to Mr. Flores, the officer ordered Mr. Flores in both English and

Spanish to get on his knees and to raise up his hands, and Mr. Flores complied. Officer

Placentia patted down Mr. Flores to ensure that he did not have a gun and handed him off

to another police officer. Officer Placentia retrieved the diskette that Mr. Flores

discarded and gave it to another officer. Other officers later found checks from the

victim’s checkbook in Mr. Flores’s possession.

Officer Placentia assisted his partner, Officer Kalap Andres, in chasing an

African-American man with dreadlocks who was wearing a gray shirt and gray pants and

identified at trial as Mr. Chapman. Officer Andres told Officer Placentia that the man

had fled into an apartment. The officers subsequently were able to apprehend Mr.

Chapman after he ran through the parking lot and climbed over a fence. Williamson

County Sheriff’s Deputy Telayna Luttrell testified that a Samsung flip phone was in Mr.

Chapman’s possession and that a pile of clothing, which included a jacket and a black

knit cap with two slits that appeared to be holes for eyes, was found on the ground near

him. Officers collected a black shirt and a pair of black cotton gloves that were wrapped

inside of a dark sweatshirt from the ground near the door of the apartment where Mr.

Chapman had been hiding.

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Brentwood Police Officer William Frasch apprehended Ms. Newell, who he

described as a heavy-set, African-American woman who had dreadlocks and was wearing

a gray jacket. Ms. Newell was cooperative and did not appear to be impaired or injured.

Officers searched Ms. Newell and found a cell phone, a pair of black gloves, and a white

ski mask with holes cut out for the eyes.

Franklin Police Detective David Dixon responded to the apartment complex and

found a cell phone and a brown wallet that contained $600 in cash and the victim’s

identification lying on the ground on the left side of the van. He also collected a pair of

black tennis shoes lying in the parking lot at the rear of the van. Franklin Police

Detective Richard Spaulding and Detective Dixon searched the van in the vehicle

examination bay at the police department. The detectives located a Smith and Wesson

revolver with rounds in the chamber on the floorboard between the driver’s seat and the

passenger’s seat. Detective Spaulding testified that he did not process the revolver for

fingerprints because the victim reported that all of the intruders were wearing gloves. A

paper with handwritten directions to the victim’s home and a clipboard with a sheet of

paper and a pen attached also were found between the driver’s seat and the passenger’s

seat. The detectives also located a receipt for a hotel with Mr. Morales’s name inside the

van. They recovered numerous items that belonged to the victim, including televisions,

an AR-15 rifle, laptops, and a watch. Detective Spaulding acknowledged on cross-

examination that all items found in the van that were identified as belonging to the victim

were returned to him.

On March 1, 2014, Officer Joshua Brownlee of the Lebanon Police Department

stopped Mr. Morales for speeding in his Toyota Corolla. Officers later searched Mr.

Morales’s car pursuant to a search warrant and found paperwork, including a social

security card, with Mr. Morales’s name on it. A holster for a revolver and a Samsung cell

phone were found in the front passenger seat. Officers were unable to lift any

fingerprints from the holster. Detective Spaulding testified that the revolver found in the

van appeared to fit the holster.

Ms. Emily Faulkner agreed to cooperate and testified for the State at trial. She

testified that she and Mr. Morales, who she knew as “Luper,” met on a social website and

had seen each other in person approximately five times. Prior to the home invasion, Mr.

Morales sent her a text message asking to meet with her. During the meeting, Mr.

Morales asked her to participate in the home invasion by knocking on the victim’s door.

He asked her to dress in a “professional” manner so that the victim would open the door.

Ms. Faulkner stated that the plan was that when she knocked on the door and the victim

opened it, those with her would go inside and take the victim’s belongings. Mr. Morales

promised to pay her “a few thousand dollars” for her participation.

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Ms. Faulkner testified that the day before the home invasion, Mr. Morales drove

her to Walmart in a small, four-door, “gold-ish, tan-ish” car. Mr. Morales purchased for

Ms. Faulkner a pair of high-heeled shoes and a scarf to cover the tattoos on her neck.

Upon leaving Walmart, they went to a hotel located off Harding Place where Mr. Morales

had rented a room for Raoul. Mr. Morales instructed Ms. Faulkner to meet back at the

hotel the following morning at 7:00 a.m. He told her to knock on the door to the hotel

room that he had rented and that Raoul would come to the door and let her inside. Mr.

Amish Patel, the general manager of the hotel, testified that according to his records, Mr.

Morales checked in on February 23 and checked out on March 2, 2014. Mr. Patel stated

that employees are prohibited from renting a room to anyone who does not produce a

form of identification.

Ms. Faulkner testified that she arrived at the hotel room the following morning

earlier than she was supposed to arrive. She knocked on the door, and Raoul let her

inside. There were two beds, and Ms. Faulkner laid down in one bed while Raoul laid

down in the other one. Ms. Faulkner said she fell asleep because she had been awake all

night. When she awoke, three other people were in the room: Mr. Flores, who she knew

as “Christian,” Ms. Newell, and an African-American man with dreadlocks, whose name

she did not know but who had been identified by others at trial as Mr. Chapman. Mr.

Morales had not yet arrived, so Ms. Faulkner went outside, smoked a cigarette, and sat in

her car.

Ms. Faulkner returned to the room once Mr. Morales arrived. Mr. Morales handed

a yellow piece of paper to Mr. Flores, which Ms. Faulkner believed to have directions

written on it. She later saw Mr. Flores with the piece of paper in the van. Mr. Morales

also gave everyone a pair of gloves, which Ms. Faulkner described as soft, “cheap,” and

either black or brown. Mr. Morales gave Mr. Flores and Raoul each a handgun, and

another man arrived at the hotel. She stated that Mr. Morales gave Mr. Flores and the

man the victim’s address, which both Mr. Flores and the man entered into their cell

phones. The man left to go to the address to ensure that “it was clear,” and Mr. Morales

drove away in his Toyota car.

Ms. Faulkner testified that she, Mr. Flores, Raoul, Ms. Newell, and Mr. Chapman

got into a white van. Mr. Flores was the driver; Ms. Faulkner sat on the front passenger’s

side; and the remaining people sat in the back of the van. Ms. Faulkner was wearing gray

dress pants, a black shirt, a jacket, high-heeled shoes, and a scarf. Mr. Morales had stated

that Ms. Faulkner needed additional items to look like a business woman, so they stopped

at a Walmart where she and Mr. Flores went inside and purchased a clipboard, paper, and

a pen. Mr. Flores paid for the items. They also stopped at a convenience store and

purchased gasoline. While on their way to the victim’s home, Ms. Newell and Mr.

Chapman converted their hats into masks by making holes for their eyes.

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Ms. Faulkner said Mr. Flores used the GPS on his cell phone to find the victim’s

home. Once they arrived in the neighborhood, they were not sure which house belonged

to the victim. Mr. Flores made a call and appeared to speak in Spanish, and shortly

thereafter, they located the victim’s home. A black Jeep was parked in the driveway.

Mr. Flores backed the van into the driveway to make it easier for them to load the items

from the house into the van.

Ms. Faulkner testified that prior to leaving the hotel room, she, Mr. Flores, and

Mr. Morales had discussed the plan to gain entry. Ms. Faulkner was to ring the doorbell

and look like a “professional” so that the victim would open the door. Mr. Flores was

supposed to stand to Ms. Faulkner’s side with a gun and then point the gun at the victim

when he opened the door. Ms. Faulkner testified that she knocked on the door while Mr.

Flores stood on her left side with the gun in his waistband, but the victim did not come to

the door. Ms. Faulkner continued knocking and ringing the doorbell. When no one came

to the door, Ms. Faulkner and Mr. Flores returned to the van, and Mr. Flores said he was

going to call Mr. Morales. After the call ended, Mr. Flores gave Mr. Chapman a code to

gain entry to the home. Mr. Flores also handed him a gun, but Mr. Chapman refused to

take it and instructed Mr. Flores to give it to Ms. Newell. Ms. Newell took the gun from

Mr. Flores. Mr. Chapman and Ms. Newell got out of the van and went to a gate behind

the Jeep. The front door to the house then opened, and Mr. Chapman was standing at the

door.

Ms. Faulkner, Mr. Flores, and Raoul went to the front door where Ms. Newell

gave the gun back to Mr. Flores. Mr. Chapman pointed to a door and said, “[H]e’s in

there.” Mr. Flores and Raoul entered the room, while Ms. Faulkner, Ms. Newell, and Mr.

Chapman began removing items from the home. Ms. Newell and Ms. Faulkner took a

television off a wall in the living room and set it on a couch. Ms. Faulkner looked

through cabinets in the living room, while Ms. Newell searched drawers in the kitchen.

Ms. Faulkner stated that she recalled Mr. Morales mentioning Rolex watches as items

that would be in the house.

Ms. Faulkner and Ms. Newell went upstairs where Ms. Newell removed a

television off a wall and Ms. Faulkner grabbed a small television from a child’s bedroom.

While Ms. Faulkner was upstairs, she saw Mr. Chapman standing on the stairs of a trap

door attic while talking on his cell phone. Ms. Faulkner and Ms. Newell loaded three

televisions, a guitar, and multiple small cases into the van. They remained in the van

until Ms. Newell received a call. After the call ended, Ms. Newell told Ms. Faulkner to

“come on,” and they reentered the house.

As Ms. Faulkner was standing by the front door, she saw Mr. Flores and Raoul

bring the victim out of his bedroom. The victim was naked; his mouth was covered; and

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his hands were bound. She stated that both Mr. Flores and Raoul had handkerchiefs

covering their faces, that Ms. Newell wore a white ski mask, and that Mr. Chapman wore

a black ski mask. Ms. Faulkner grabbed a small tote and returned to the van. Ms. Newell

and Mr. Chapman each placed an item in the back of the van and got into the van. Either

Mr. Flores or Raoul placed a garbage can containing what appeared to be an “army gun”

in the back of the van; they both got into the van; and Mr. Flores drove the van away

from the scene.

Ms. Faulkner testified that they were supposed to return to the hotel. While they

were driving down the interstate, Mr. Chapman commented about a vehicle behind them.

Ms. Faulkner looked back but did not see a police car. Those sitting in the back of the

van ducked down, and Ms. Faulkner scooted down in her seat. The car followed them off

the interstate, and those in the van began to “panic.” Once they were in Nashville, a

police officer behind them activated his emergency lights. The van did not stop, and Ms.

Faulkner testified that Mr. Chapman gave Mr. Flores directions. Once they arrived at an

apartment complex, Mr. Chapman told Ms. Newell to prepare to jump and that she

needed to run fast. Mr. Chapman, Ms. Newell, Mr. Flores, and Raoul jumped out of the

van, and the van crashed. Ms. Faulkner got out of the van and started to run, but a police

officer ordered her to get on the ground and arrested her.

On cross-examination, Ms. Faulkner acknowledged that she had prior theft and

drug convictions. She stated that while incarcerated, her children were living elsewhere

and that she wanted to regain custody, but she denied that she was lying in order to regain

custody of her children. She denied that she had been promised a deal in exchange for

testifying and explained, “I mean I hope, but it’s not guaranteed. I’m just doing the right

thing like I’ve done since the first day.” She denied having a deal with the State that

provided for her release in “September” or that the State planned to offer her one year of

probation after she testified. She explained that she told her boyfriend this during a

telephone conversation while incarcerated in order “to give him hope.” She

acknowledged that she and her boyfriend discussed living together in an apartment.

Ms. Faulkner agreed that during a meeting with the prosecutor, she stated that she

planned to purchase shoes with the money that she was to receive from the home

invasion. She admitted that she told her mother during a telephone conversation while

incarcerated that all she had to do was knock on the door and she would be paid $5,000.

Ms. Faulkner stated that she lied to her mother when she told her mother that she only

stepped inside the house and then returned to the van.

Ms. Faulkner stated that she did not hear the name of Ms. Pittman until Ms.

Faulkner was incarcerated and that she did not know whether Mr. Morales knew the

victim. Ms. Faulkner stated that she was unsure whether both Mr. Flores and Raoul were

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wearing facial coverings while inside the victim’s house and later testified that both men

were wearing facial coverings at one point.

Detective Tamara Pittz with the Franklin Police Department testified that one of

her duties as a member of the Criminal Investigations Division in the Special Victim’s

Unit was to conduct forensic examinations of computers and cell phones. The trial court

accepted Detective Pittz as an expert in her field. Detective Pittz utilized a platform or

program to extract information from a cell phone linked to Mr. Morales, a cell phone

recovered from the van linked to “Christian Colmenares,” and a cell phone linked to Mr.

Chapman. The extraction reports showed one call between Mr. Morales’s cell phone and

Christian Colmenares’s cell phone on the day of the offenses. The reports also showed

calls between Mr. Morales’s cell phone and Mr. Chapman’s cell phone at 7:27 a.m., 7:42

a.m., 9:20 a.m., 9:29 a.m., 9:54 a.m., and 10:19 a.m. on the day of the offenses. Mr.

Morales’s cell phone included a Facebook message sent to Ms. Pittman two days after the

offenses stating, “ey hit me up asap ma wat happend u stil on My side o da world y u leav

ur fone at da hotel.” On cross-examination, Detective Pittz testified that according to the

report of Mr. Morales’s cell phone, Ms. Pittman used Mr. Morales’s cell phone to access

her Facebook account and exchanged messages with someone else.

The Defendants’ Proof at Trial

Ms. Newell chose to testify in her own defense. She stated that Mr. Chapman

dated her younger sister and that he and her younger sister often drove her to work

because she did not own a vehicle. On the day prior to the offenses, Ms. Newell was

suspended from work for five days for using her social media account while at work. She

stated that once she left work, she took Xanax, smoked marijuana, and drank liquor. She

went to a club with some friends where she took more Xanax and continued to drink

alcohol. She woke up the following day in the apartment of someone whom she did not

know. She called either her sister or Mr. Chapman, and Mr. Chapman came to the

apartment.

Ms. Newell testified that when she got into a car with Mr. Chapman, she took

Xanax and smoked marijuana. They then went to the hotel, but Ms. Newell denied ever

going into the room. She saw Ms. Faulkner and two Hispanic men exit the room. Ms.

Newell maintained that she got into the van believing that she was going to be taken

home. She sat in the back seat, and Mr. Chapman and one of the other men sat in front of

her. Ms. Newell testified that she nodded off once she got into the van. She recalled the

man sitting next to Mr. Chapman producing a gun once the van pulled into the victim’s

driveway. Mr. Chapman and the other two men entered the home, while Ms. Faulkner

remained in the front seat. Ms. Newell said that she nodded off again and that when she

awoke, she saw the man with the gun loading items into the van while Ms. Faulkner

- 12 -

stood at the door as if she was holding it open. Ms. Faulkner then got back into the van.

Ms. Newell called Mr. Chapman and asked him what was happening. He told her to

remain calm and that he was about to exit the house. Mr. Chapman returned to the van

with a black case; the other men got into the van; and they left. Ms. Newell maintained

that she never got out of the van.

Ms. Newell testified that as they were traveling down the interstate, she dropped

her cell phone and began digging through items on the floor in an effort to find it. She

stated that while searching for her cell phone, she placed her hand on a case beside her

and that Mr. Chapman threw a white mask at her and told her to wipe her handprints off

the case. Ms. Newell said she did not recall what she did with the mask. She

acknowledged that when she was arrested, the officers removed her cell phone, the white

mask, and gloves from her pocket. She stated that the gloves were tucked inside the

mask when Mr. Chapman gave the mask to her.

Mr. Chapman noticed someone was behind them and told the driver. Ms. Newell

testified that they “went on a chase.” She stated that once the driver and the other

Hispanic man jumped out of the van, the van was going to wreck, so she took her

“chances on jumping out.” She said that she fell on the ground and that the van ran over

her foot. She maintained that she was not thinking and just ran and that she stopped as

soon as she encountered a police officer.

On cross-examination, Ms. Newell acknowledged that she had a prior theft

conviction. She agreed that she was on drugs at the time of the offenses and that some of

the details were “fuzzy.” She testified that Mr. Chapman was with another man when he

came to the apartment on the morning of the offenses and that the man dropped her and

Mr. Chapman off at the hotel and left. She stated that she did not know Mr. Morales and

never saw him until she was in court following her arrest. She identified Mr. Flores as

the driver of the van and said she never saw him with a gun. She stated that Raoul was

the man who had the gun. She also stated that she only saw Raoul and Mr. Chapman

bring items from the house to the van. She did not see anyone wearing facial coverings

or Mr. Chapman wearing a black mask while in the van.

Mr. Flores also chose to testify in his own defense through an interpreter. He

stated that he worked in the Nashville area painting and remodeling homes and that he

borrowed the white van from a friend. On the day before the offenses, Mr. Morales, who

was Mr. Flores’s former supervisor, called him about a job removing flooring from a

home on the following day. Mr. Flores also spoke to Raoul, a co-worker, who wanted to

borrow the van from Mr. Flores. Mr. Flores told Raoul that the van did not belong to him

but offered to drive him where he needed to go. Raoul gave him directions to the hotel

where he was staying. On the following day, Mr. Flores went to the hotel room. He said

- 13 -

that Raoul came to the door and was “half-naked” and that Ms. Faulkner was inside the

room and also “half-naked.” Mr. Flores waited outside while Ms. Faulkner got dressed,

and he entered the room.

Mr. Flores testified that a Hispanic man, Raoul’s friend, arrived, spoke to Raoul,

and left in a red car. Mr. Flores stated that he did not listen to their conversation and

maintained that no one told him about the robbery. Mr. Flores, along with Ms. Faulkner,

Ms. Newell, Raoul, and Mr. Chapman got into the van. Raoul instructed Mr. Flores to

drive to Walmart. When they arrived, Raoul was talking on his cell phone, so he gave

Mr. Flores $20.00 and instructed him to accompany Ms. Faulkner into Walmart and pay

for her items. Mr. Flores said he did as he was instructed. Raoul then told Mr. Flores to

drive to a convenience store to purchase gasoline. Mr. Flores stated that he asked Raoul

where they were going and that Raoul told him that they were going to move some items

out of a friend’s house in Franklin.

Mr. Flores testified that Raoul gave him directions to the house. Mr. Flores stated

that at one point, someone called his cell phone and asked for Raoul. Mr. Flores gave his

cell phone to Raoul, who spoke to the person and kept Mr. Flores’s cell phone after the

call ended. Mr. Flores said that when they arrived at the house, the red car that the

Hispanic man drove from the hotel was parked on the street. Mr. Flores parked the van

facing forward in the driveway. Raoul asked for the keys to the van and backed the van

onto the grass and in front of the door while everyone else stood outside. Mr. Flores

stated that Raoul asked him to knock on the door, but Mr. Flores did not feel comfortable

doing so and returned to the van. He saw Raoul speak to the others and then go to the

door with Ms. Faulkner and the Hispanic man who was in the red car. When no one

opened the front door, they returned to the driveway. Ms. Faulkner returned to the van

but then left again once she received a call. Mr. Flores stated that while he and Ms.

Faulkner were in the van, Raoul, Mr. Chapman, and the Hispanic man walked toward the

right side of the garage and disappeared for six or seven minutes. Raoul opened the front

door, and Mr. Flores heard shouts in Spanish. Mr. Flores and Ms. Faulkner exited the

van, and Ms. Faulkner entered the house. Raoul instructed Mr. Flores to take a heavy

black bag to the van, and Mr. Flores did so. Mr. Flores maintained that he did not believe

that they were stealing these items because Raoul had told him that they were going to

move items from the home.

Mr. Flores stated that he reentered the van and did not pay attention to what was

occurring, even though he knew that the others were removing items from the house.

The Hispanic man returned to his car, and the others returned to the van. Raoul loaded a

black garbage can into the van, gave the keys to the van to Mr. Flores, and instructed him

to drive to Nashville. While traveling on the interstate, Raoul gave a black bag to Mr.

Flores and instructed him to hold it. Raoul began changing his clothes and instructed Mr.

- 14 -

Flores to drive to a friend’s house where Raoul planned to leave the items. Mr. Flores

testified that as they were nearing their exit from the interstate, Raoul instructed him in

Spanish to drive slowly to the exit because he believed police officers were following

them. Mr. Flores stated that he started to pull over but that Raoul had a gun and

threatened to shoot him if he stopped. Once they arrived at the apartment complex,

Raoul told Mr. Flores that he needed to jump out of the van because the officers were

going to catch them. Mr. Flores was apprehended and testified that he did not learn that a

robbery occurred until a few days later.

On cross-examination, Mr. Flores testified that he has been referred to as

“Christian.” He denied seeing Mr. Morales at the hotel. Mr. Flores stated that Ms.

Newell was sleeping in the van on the way to the victim’s house. He also stated that he

only placed two bags into the van and that he did not see any televisions in the van. He

maintained that he ran from the police officers because he was not in the country legally.

When questioned about the officers’ finding the victim’s checks in his possession, Mr.

Flores stated that Raoul gave them to him and instructed him to give them to another

person later.

The Defendants were each charged with especially aggravated kidnapping,

aggravated robbery, aggravated burglary, aggravated burglary while acting in concert

with two or more persons, theft of property valued at $1,000 or more, and conspiracy to

commit aggravated robbery. Mr. Flores also was charged with possession of a firearm

during the commission of a dangerous felony and employment of a firearm during the

commission of a dangerous felony with aggravated burglary as the dangerous felony in

both charges. The jury acquitted the Defendants of the charge of especially aggravated

kidnapping but convicted them of aggravated robbery, two counts of aggravated burglary,

theft of property valued at $1,000 or more, and conspiracy to commit aggravated robbery.

The jury also convicted Mr. Flores of possession of a firearm during the commission of a

dangerous felony and employment of a firearm during the commission of a dangerous

felony. The trial court merged the theft conviction into the aggravated robbery

conviction, the two aggravated burglary convictions, and Mr. Flores’s firearm

convictions.

Following a sentencing hearing, the trial court sentenced Mr. Flores as a Range I,

standard offender to ten years for the aggravated robbery conviction, ten years for the

aggravated burglary conviction, four years for the conspiracy conviction, and six years

for the conviction of employment of a firearm during the commission of a dangerous

felony. The trial court ordered Mr. Flores to serve his sentences consecutively for an

effective thirty-year sentence. The trial court found that Mr. Morales was a Range II,

multiple offender with a prior aggravated robbery conviction and imposed consecutive

sentences of twenty years for the aggravated robbery and aggravated burglary convictions

- 15 -

and eight years for the conspiracy conviction, for an effective sentence of forty-eight

years. The trial court sentenced Ms. Newell as a Range I, standard offender to ten years

for each of the aggravated robbery and aggravated burglary convictions and four years

for the conspiracy conviction. The trial court ordered Ms. Flores to serve the sentences

consecutively for an effective sentence of twenty-four years.

The Defendants each filed a motion for new trial, which the trial court denied.

This appeal followed.

ANALYSIS

I. Sufficiency

Mr. Flores and Ms. Newell challenge the sufficiency of the evidence supporting

their convictions. Mr. Flores contends that he was unaware that a robbery was going to

or had occurred, that he believed he and his co-defendants were invited to enter the

house, and that he believed they had the victim’s consent to remove the items from the

house. Ms. Newell contends that Ms. Faulkner’s testimony as an accomplice was not

sufficiently corroborated and that the evidence is insufficient to establish her participation

in the offenses. The State responds that the evidence is sufficient to support the

convictions. We agree with the State.

When a defendant challenges the sufficiency of the evidence, the relevant question

for this court 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). 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. Elkins, 102

S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.

2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,

not this court, who resolves any questions concerning “the credibility of witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by the

evidence.” 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. 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. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court

applies the same standard of review regardless of whether the conviction was predicated

on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.

- 16 -

2011). “Circumstantial evidence alone is sufficient to support a conviction, and the

circumstantial evidence need not exclude every reasonable hypothesis except that of

guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

As alleged in the indictment, aggravated robbery is robbery that is

“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to

lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-

402(a)(1). “Robbery is the intentional or knowing theft of property from the person of

another by violence or putting the person in fear.” T.C.A. § 39-13-401(a). “A person

commits theft of property if, with intent to deprive the owner of property, the person

knowingly obtains or exercises control over the property without the owner’s effective

consent.” T.C.A. § 39-14-103(a). At the time of the offense and when the Defendants

were sentenced, theft of property valued at $1,000 or more but less than $10,000 was a

Class D felony. T.C.A. § 39-14-105(a) (2014).1

With regard to the conviction of conspiracy to commit aggravated robbery,

conspiracy is committed when

two (2) or more people, each having the culpable mental state required for

the offense that is the object of the conspiracy, and each acting for the

purpose of promoting or facilitating commission of an offense, agree that

one (1) or more of them will engage in conduct that constitutes the offense.

T.C.A. § 39-12-103(a). “No person may be convicted of conspiracy to commit an

offense, unless an overt act in pursuance of the conspiracy is alleged and proved to have

been done by the person or by another with whom the person conspired.” T.C.A. § 39-

12-103(d). “While the essence of the offense of conspiracy is an agreement to

accomplish a criminal or unlawful act, … the agreement need not be formal or expressed,

and it may be proven by circumstantial evidence.” State v. Pike, 978 S.W.2d 904, 915

(Tenn. 1998) (internal citations omitted).

As charged in the indictment, aggravated burglary occurs when a defendant enters

into a habitation without the effective consent of the owner and with the intent to commit

theft, and the offense is a Class C felony. T.C.A. § 39-14-402(a)(1), -403(a). Aggravated

burglary “committed while acting in concert with two (2) or more other persons” is a

Class B felony. T.C.A. §§ 39-12-302(a), -301(2)(C). With regard to Mr. Flores’s firearm

charges, “[i]t is an offense to possess a firearm with the intent to go armed during the

1

Effective January 1, 2017, the theft grading statute, Tennessee Code Annotated section 39-14-

105, was amended to provide for lesser penalties in some instances based upon the value of the property

taken. However, because the Defendants were sentenced prior to the effective date of the amendment, the

prior version of the statute controls. See State v. Keese, 591 S.W.3d 75, 83-84 (Tenn. 2019).

- 17 -

commission of or attempt to commit a dangerous felony.” T.C.A. § 39-17-1324(a)

(2014). It is also an offense “to employ a firearm during the … [c]omission of a

dangerous felony.” T.C.A. § 39-17-1324(b)(1) (2014). Aggravated burglary constitutes

a dangerous felony. T.C.A. § 39-17-1324(i)(1)(H) (2014).

The trial court instructed the jury on criminal responsibility for the conduct of

another with regard to all of the charges other than Mr. Flores’s firearm charges. “A

person is criminally responsible as a party to an offense, if the offense is committed by

the person’s own conduct, by the conduct of another for which the person is criminally

responsible, or by both.” T.C.A. § 39-11-401(a). A defendant can be held criminally

responsible for the conduct of another if “[a]cting with the intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense, the

person solicits, directs, aids, or attempts to aid another person to commit the offense.”

T.C.A. § 39-11-402(2). The evidence at trial “must establish that the defendant in some

way knowingly and voluntarily shared in the criminal intent of the crime and promoted

its commission.” Dorantes, 331 S.W.3d at 386 (citing State v. Maxey, 898 S.W.2d 756,

757 (Tenn. Crim. App. 1994); State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App.

1988)).

A. Corroboration of Accomplice Testimony

Ms. Newell maintains that the evidence is insufficient to corroborate Ms.

Faulkner’s testimony as an accomplice in implicating Ms. Newell in the offenses. A

criminal defendant in Tennessee cannot be convicted “solely upon the uncorroborated

testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994), superseded by statute as stated in

State v. Odom, 137 S.W.3d 572, 583 (Tenn. 2004); Monts v. State, 379 S.W.2d 34, 43

(Tenn. 1964), overruled on other grounds by State v. Collier, 411 S.W.3d 886, 899

(Tenn. 2013)). “An accomplice is defined as a person who knowingly, voluntarily and

with common intent unites with the principal offender in the commission of the crime.”

State v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997) (citing State v. Perkinson,

867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)). The test of whether a witness qualifies as an

accomplice is “whether the alleged accomplice could be indicted for the same offense

charged against the defendant.” State v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App.

1997). Ms. Faulkner was indicted for the same offenses charged against the Defendants

and, therefore, qualified as an accomplice.

Our supreme court has stated that in order to properly corroborate accomplice

testimony,

- 18 -

“[T]here must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the inference, not

only that a crime has been committed, but also that the defendant is

implicated in it; and this independent corroborative testimony must also

include some fact establishing the defendant’s identity. This corroborative

evidence may be direct or entirely circumstantial, and it need not be

adequate, in and of itself, to support a conviction; it is sufficient to meet the

requirements of the rule if it fairly and legitimately tends to connect the

defendant with the commission of the crime charged. It is not necessary

that the corroboration extend to every part of the accomplice’s evidence.”

Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). The corroborating

evidence need only be “slight.” State v. Griffs, 964 S.W.2d 577, 589 (Tenn. Crim. App.

1997). Whether sufficient corroboration exists is for the jury to determine. Shaw, 37

S.W.3d at 903; Anderson, 985 S.W.2d at 16.

In the present case, the victim’s testimony established that “a crime has been

committed” independent of Ms. Faulkner’s testimony. Furthermore, the evidence

corroborates Ms. Faulkner’s testimony implicating Ms. Newell in the commission of the

crimes. Ms. Newell’s testimony admitting that she was in the van while traveling and

fleeing from the victim’s home corroborates Ms. Faulkner’s testimony regarding Ms.

Newell’s presence at the scene. Ms. Faulkner testified that Ms. Newell wore a white ski

mask; Ms. Newell was in possession of a white ski mask when she was apprehended; and

the victim testified to seeing a person wearing a white mask while inside his home. Ms.

Faulkner testified that Mr. Morales gave each participant a pair of gloves, and Ms.

Newell had gloves as described by Ms. Faulkner in her possession when officers

apprehended her. Ms. Faulkner testified that she and Ms. Newell removed three

televisions from the home and loaded them into the van, and the victim confirmed her

testimony regarding the three televisions and the rooms from which each television was

taken. These televisions were later recovered from the van from which Ms. Newell and

the other participants fled. We conclude that the evidence was sufficient to corroborate

Ms. Faulkner’s testimony as an accomplice.

B. Elements of the Offenses

Mr. Flores and Ms. Newell maintain that the evidence is insufficient to establish

that they committed the offense of which they were found guilty. The evidence, when

viewed in the light most favorable to the State, established that Mr. Morales devised a

plan to conduct a home invasion of the victim’s house and steal his belongings, and he

enlisted Mr. Flores, Ms. Newell, Ms. Faulkner, Mr. Chapman, and Raoul to carry out the

plan. According to Mr. Morales’s plan, Ms. Faulkner was to knock on the victim’s door

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while dressed as a “professional” so that the victim would open the door and the other

participants could force their way inside the home. On the day before the offenses, Mr.

Morales drove Ms. Faulkner to Walmart and purchased high-heeled shoes and a scarf for

her.

On the morning of the offenses, the participants met at a hotel room that Mr.

Morales had rented to discuss the home invasion. Mr. Morales told them the items which

would be in the home, gave each participant gloves to use, provided directions to the

victim’s home to Mr. Flores, and gave Mr. Flores and Raoul each a gun. Mr. Flores

drove the van to the victim’s home. While en route, they stopped at Walmart where Mr.

Flores purchased a clipboard, a pen, and paper so that Ms. Faulkner would appear more

“professional” when she knocked on the victim’s door. Ms. Newell and Mr. Chapman

converted their hats into masks by creating holes for their eyes.

Once they arrived at the victim’s home, Ms. Faulkner knocked on the front door

while Mr. Flores stood beside her with a gun. When the victim did not come to the door,

Ms. Faulkner and Mr. Flores returned to the van, where Mr. Flores made a call. After the

call, Mr. Flores provided an access code to enter the home to Mr. Chapman and a gun to

Ms. Newell. Mr. Chapman and Ms. Newell gained entry into the home and opened the

front door to allow the others to enter, and Ms. Newell returned the gun to Mr. Flores.

Mr. Flores and Raoul entered the victim’s bedroom, held him at gunpoint, threatened

him, and bound his hands and feet while Mr. Chapman, Ms. Faulkner, and Ms. Newell

removed the victim’s belongings from his home.

Cell phone records showed multiple phone calls between Mr. Chapman and Mr.

Morales around the time of the home invasion. Mr. Chapman was talking on his cell

phone when he entered the closet where Mr. Flores and Raoul were holding the victim at

gunpoint. Mr. Chapman stated, “Up top,” while speaking on his cell phone. He retrieved

the victim’s rifle from the top shelf of the closet, pointed it at the victim, and demanded

to know the location of his safe. Mr. Flores and Raoul forced the victim upstairs at

gunpoint. The victim saw Ms. Faulkner standing at the front door, along with a person in

a white mask. The evidence established that Ms. Newell was wearing a white ski mask.

The victim detailed all of the items taken and their values, which totaled well over

$1,000.

Mr. Flores, Raoul, Mr. Chapman, Ms. Newell, and Ms. Faulkner got into the van,

and Mr. Flores drove away from the scene. Police officers tried to stop the van, but Mr.

Flores refused to stop and drove into Nashville while Mr. Chapman directed him. They

drove to an apartment complex where all of the occupants but Ms. Faulkner jumped out

of the van and fled from police officers as the van crashed into a pole. When

- 20 -

apprehended by police, Mr. Flores was in possession of the victim’s checks, and Ms.

Newell was in possession of a white mask and gloves.

The challenges of Mr. Flores and Ms. Newell to the sufficiency of the evidence are

based primarily upon their respective testimonies at trial in which they each denied

participating in the offenses or having any knowledge that the offenses were to occur.

However, in finding Mr. Flores and Ms. Newell guilty of the offenses, the jury rejected

their testimony and credited the testimony of the State’s witnesses. The jury resolves any

questions concerning “the credibility of witnesses, the weight and value to be given the

evidence, as well as all factual issues raised by the evidence.” Bland, 958 S.W.2d at 659.

Although Mr. Flores and Ms. Newell urge this court to re-weigh or reevaluate the

evidence, we are prohibited from doing so. See Matthews, 805 S.W.2d at 779. Rather,

we conclude that the evidence is sufficient to support the convictions.

II. Denial of the Motions to Suppress

Mr. Flores and Ms. Newell assert that the police officer’s initiation of the stop of

the van was unconstitutional and that, therefore, the trial court erred in denying their

respective motions to suppress. The State responds that the initiation of the stop was

supported by probable cause or reasonable suspicion and was constitutional. We agree

with the State.

Prior to trial, Mr. Flores filed a motion to suppress, challenging the legality of the

traffic stop, his arrest, the search of his van, and his statements to the police. Ms. Newell

also filed a motion to suppress, joining in Mr. Flores’s motion. A suppression hearing

was held shortly before trial during which the State presented Detective Cole and Officer

Placentia as witnesses. Their testimony during the hearing was similar to their testimony

at trial. Both officers offered testimony during the suppression hearing regarding the

information that they received from their respective dispatchers, their observations, the

basis for the decision to initiate a traffic stop, the activation of the patrol car’s emergency

lights, the van’s failure to yield, Mr. Flores’s jumping from the van while it was still

moving, and the van’s crashing into a light pole.

Officer Placentia also testified that when he first drove up to the van, he could see

some of the occupants “kind of ducking down below the seat and then getting up and

moving around.” He stated that while he was pursuing the van after he activated his

emergency lights, the occupants continued moving around and getting behind their seats

as if they were trying to hide something. He testified on cross-examination that when he

activated his emergency lights, the van was going the speed limit but that the occupants

were moving around the van, ducking down, and getting back up. Officer Placentia

- 21 -

stated on redirect examination, that it did not appear that the occupants in the back of the

van were wearing their seatbelts.

At the conclusion of the hearing, the trial court made oral findings and later issued

a written order denying the motions to suppress. The trial court found that the officer’s

activation of the emergency lights on his vehicle constituted a seizure and that the

officers had reasonable suspicion to conduct a stop to investigate whether the occupants

were involved in the home invasion based upon information that the officers received

from the dispatchers and their observations while following the van. The trial court also

found that the officers had probable cause or reasonable suspicion to conduct a stop based

on the observed seatbelt violations. The trial court found that Mr. Flores and Ms. Newell

did not have standing to challenge the search of the van because they abandoned the van

and its contents when they jumped out of the van while it was still in motion. The trial

court noted that a search warrant was later obtained and that Mr. Flores and Ms. Newell

had not challenged the validity of the search warrant.

On appeal, Ms. Newell and Mr. Flores challenge the trial court’s finding that the

officers had reasonable suspicion to initiate a traffic stop to investigate whether the

occupants in the van were involved in the home invasion. In arguing that the initial

seizure was unconstitutional, Ms. Newell maintains that “[h]er subsequent seizure and

search of her person was also unreasonable given the totality of the circumstances.” Mr.

Flores asserts that the information regarding the tracking of the iPhone relied upon by

Detective Cole was not properly authenticated pursuant to Tennessee Rule of Evidence

901.

A trial court’s findings of fact on a motion to suppress are conclusive on appeal

unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996). Questions regarding the “credibility of the witnesses, the weight and value

of the evidence, and resolution of conflicts in the evidence are matters entrusted to the

trial judge as the trier of fact.” Id. The State, as the prevailing party, is entitled to the

“strongest legitimate view of the evidence and all reasonable and legitimate inferences

that may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn.

1998); see State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The trial court’s application

of the law to its factual findings is a question of law that is reviewed de novo on appeal.

State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). In reviewing a trial court’s ruling

on a motion to suppress, this court may consider the evidence presented at trial as well as

the evidence presented at the suppression hearing. See State v. Williamson, 368 S.W.3d

468, 473 (Tenn. 2012); State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

The Fourth Amendment to the United States Constitution and article I, section 7 of

the Tennessee Constitution protect individuals from unreasonable searches and seizures.

- 22 -

See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. Warrantless seizures are “presumed

unreasonable, and evidence discovered as a result thereof is subject to suppression unless

the State demonstrates that the … seizure was conducted pursuant to one of the narrowly

defined exceptions to the warrant requirement.” Yeargan, 958 S.W.2d at 629; see

Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Binette, 33 S.W.3d

215, 218 (Tenn. 2000).

“Individuals do not lose their constitutional protections against unreasonable

searches and seizures by getting into an automobile.” State v. Smith, 484 S.W.3d 393,

400 (Tenn. 2016). However, a warrant is not required for an investigatory stop “when the

officer has a reasonable suspicion, supported by specific and articulable facts, that a

criminal offense has been or is about to be committed.” State v. Bridges, 963 S.W.2d

487, 492 (Tenn. 1997); see also Terry v. Ohio, 392 U.S. 1, 21 (1968); Binette, 33 S.W.3d

at 218. Reasonable suspicion is a lower standard of proof than probable cause, but it

must be more than the officer’s “‘inchoate and unparticularized suspicion or “hunch.”’”

State v. Hanning, 296 S.W.3d 44, 49 (Tenn. 2009) (quoting State v. Day, 263 S.W.3d

891, 902 (Tenn. 2008)). Reasonable suspicion is “a particularized and objective basis for

suspecting the subject of a stop of criminal activity.” Binette, 33 S.W.3d at 218.

Reasonable suspicion exists when “specific and articulable facts … taken together with

rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S.

at 21.

“Whether reasonable suspicion for an investigatory stop exists must be evaluated

under the totality of the circumstances known to the police at the time of the stop.” State

v. Nicholson, 188 S.W.3d 649, 659 (Tenn. 2006). In reviewing whether an officer had

probable cause or reasonable suspicion to stop a motorist, “the officer’s subjective state

of mind is irrelevant.” Smith, 484 S.W.3d at 402. Rather, courts review the validity of a

traffic stop “from a purely objective perspective” and “may consider relevant

circumstances demonstrated by the proof even if not articulated by the testifying officer

as reasons for the stop.” Id. When opposing a defendant’s challenge to the validity of a

stop, the State “is not limited … to the grounds ostensibly relied upon by the officer if the

proof supports the stop on other grounds.” Id.

As found by the trial court, the officer’s activation of his emergency lights

constituted a seizure for constitutional purposes. See State v. Pulley, 863 S.W.2d 29, 30

(Tenn. 1993) (holding that generally a seizure results from an officer’s activation of

emergency lights during an encounter with a citizen). While Mr. Flores and Ms. Newell

challenge the trial court’s finding that officers had reasonable suspicion to initiate a stop

in order to investigate whether the occupants of the van were involved in the home

invasion, the trial court found that the officers’ observations that the occupants did not

appear to have been wearing seatbelts as a separate basis of establishing probable cause

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or reasonable suspicion to initiate a stop. On appeal, Mr. Flores and Ms. Newell do not

challenge the trial court’s separate basis for upholding the seizure. Because the trial court

found that the seizure was justified under a theory not challenged on appeal, the

Defendants are not entitled to relief regarding this issue.

III. Denial of the Motions to Continue

The Defendants contend that the trial court erred in denying their motions to

continue the trial based upon the State’s failure to disclose discoverable evidence in a

timely manner. Ms. Newell also contends that the trial court erred in failing to provide a

remedy for the State’s failure to disclose other discoverable evidence until mid-trial. The

State responds that all of the evidence was disclosed in a timely manner and that the trial

court did not abuse its discretion in denying the continuance.

A. Underlying Proceedings

The trial was scheduled to begin on September 28, 2015. On August 11, Ms.

Newell’s counsel filed a motion to compel the production of the telephone calls of the

Defendants and Mr. Chapman from the jail. Counsel stated that her attempt to obtain the

calls through a subpoena duces tecum was unsuccessful. On August 18, the trial court

entered an order, requiring the prosecutor to provide copies of all of the Defendants’ jail

calls in the prosecutor’s possession to defense counsel by August 26.

On September 22, 2015, both Mr. Flores2 and Mr. Morales filed motions

requesting that the trial court order the prosecution to compel the production of a video-

recorded statement of Ms. Faulkner. Counsel stated that on September 18, ten days prior

to trial, they received an email from the prosecutor, stating that an agreement had been

reached with Ms. Faulkner, that the prosecutor was in possession of a video-recorded

statement of Ms. Faulkner, that the prosecutor would not provide a copy of the statement

to counsel because it was work product, and that defense counsel could review the video

at the prosecutor’s office on September 21.

During a pretrial hearing on September 23, defense counsel argued that the State

failed to disclose in a timely manner: (1) Ms. Faulkner’s statement during a video-

recorded interview with the prosecutor; (2) Ms. Faulkner’s statement during an interview

with the Federal Bureau of Investigation (“FBI”); (3) the recordings of Ms. Faulkner’s

telephone calls from the jail; (4) a supplemental report from Detective Cole; and (5)

2

Mr. Flores’s motion was file-stamped August 22, 2015, but the body of the motion

references actions taken in September 2015.

- 24 -

driver’s license and vehicle title information. Defense counsel requested the trial court

continue the trial due to the late disclosure.

With regard to Ms. Faulkner’s recorded interview with the prosecutor, defense

counsel stated that on March 2, the trial court set the case for trial, and Ms. Faulkner was

to be tried jointly with the Defendants. Defense counsel argued that at that point, the

State had a duty to disclose Ms. Faulkner’s statement pursuant to Tennessee Rule of

Criminal Procedure 16(a)(1)(D) as a statement of a co-defendant whose trial is set jointly

with the Defendants. Defense counsel also argued that the statement constituted

impeachment material because Ms. Faulkner provided information that was inconsistent

with the information that she had provided in other statements and that as a result, the

State had a duty to disclose pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The

prosecutor responded that she never decided to try Ms. Faulkner and the Defendants

jointly, that Ms. Faulkner’s statement constituted “Jencks”3 material which the prosecutor

was not required to disclose prior to trial, that the prosecutor did not disclose the

statement sooner due to concerns for Ms. Faulkner’s safety, and that the prosecutor did

not have a duty to disclose the statement pursuant to Brady because the statement did not

include inconsistent or exculpatory information. The prosecutor acknowledged that the

recorded interview with Ms. Faulkner occurred on February 20, 2015, prior to setting the

case for trial. The trial court initially ruled that the recorded interview constituted Brady

material but then stated at the end of the hearing that the court would take the matter

under advisement.

Ms. Newell’s counsel stated that the day before the hearing, she received from the

State a synopsis of the FBI’s interview with Ms. Faulkner, and Mr. Morales’s counsel

stated that he had not yet received it but had reviewed Ms. Newell’s copy. Defense

counsel argued that some of the information that Ms. Faulkner provided to the FBI was

inconsistent with the information that she provided in her recorded interview with the

prosecutor. The prosecutor responded that she had to obtain the FBI’s permission before

providing the summary to defense counsel and that she disclosed the summary upon

obtaining such permission. The prosecutor also argued that Ms. Faulkner’s statement to

the FBI was consistent with her other statements.

Ms. Newell’s counsel stated that she also received Detective Cole’s supplemental

report from the State on the day before the hearing. The prosecutor responded that she

recently learned of the existence of the supplemental report while reviewing the file and

provided it to defense counsel once she received it from the detective.

3

See Jencks v. United States, 353 U.S. 657 (1957).

- 25 -

On September 16, defense counsel received a packet from the prosecutor that

included information regarding driver’s licenses and titles to vehicles. The prosecutor

responded that the State issued a subpoena duces tecum for the certified records and that

she provided copies to defense counsel once she received the records from the agencies.

With respect to the recordings of Ms. Faulkner’s calls from the jail, Ms. Newell’s

counsel stated that jail officials inadvertently provided her with the recordings and that

Ms. Faulkner made multiple statements that were inconsistent with her statements to law

enforcement and the prosecutor. Ms. Newell’s counsel acknowledged that she received

the recordings in August but stated that she had not had the opportunity to review all of

the recordings. Mr. Morales’s counsel stated that he received some of the recordings of

calls from the jail “a couple of weeks ago” and that on “Friday,” he discovered that he

was unable to listen to one of the compact discs. The prosecutor responded that once she

learned of the issues with the compact disk, she contacted jail officials and asked them to

provide additional copies to defense counsel. Both counsel for Mr. Morales and Mr.

Flores stated that they did not yet have the recordings of Ms. Faulkner’s calls. However,

neither claim on appeal that they did not receive the recordings prior to trial.

The trial court entered a written order denying the Defendants’ motion to continue

the trial. The trial court found that the video of Ms. Faulkner’s interview with the

prosecutor, which was one and one-half hours in length, constituted Jencks material and

was not required to be disclosed by the State pursuant to Rule 16. The trial court also

found that even if the recording was Brady material, “[t]hat evidence need only be

provided in time for the defense to use it at trial.” With respect to the recordings of Ms.

Faulkner’s calls from jail, the trial court found that the recordings were equally available

to both parties, that Ms. Newell’s counsel had the recordings for several weeks, and that

if the recordings constituted Brady material, “the State does not have an obligation to

provide the recordings pre-trial.” The trial court found that the summary of Ms.

Faulkner’s statement to the FBI, Detective Cole’s supplemental report, and the driver’s

license and vehicle title information had been disclosed to the defense in ample time for

the defense to adequately prepare for trial.

B. Brady and Tennessee Rule of Criminal Procedure 16

The Defendants contend that the late-disclosed discovery was subject to disclosure

pursuant to Brady and Rule 16, that the State failed to disclose the discovery in a timely

manner, and that the trial court erred in failing to continue the trial to allow the

Defendants the opportunity to review the late-disclosed discovery and conduct further

investigation. We conclude that the Defendants failed to establish that the delayed

disclosure prevented them from effectively using the discovery at trial and that the trial

court did not err in denying the Defendants’ request for a continuance.

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The suppression of evidence favorable to the accused is a due process violation

when the evidence is material to guilt or punishment. Brady, 373 U.S. at 87. In order to

establish a violation based on the withholding of favorable evidence, the defendant must

demonstrate that: (1) the defendant requested the evidence or that it was obviously

exculpatory; (2) the State suppressed evidence in its possession; (3) the evidence that was

suppressed was favorable to the accused; and (4) the evidence meets the standard of

materiality. State v. Jackson, 444 S.W.3d 554, 594 (Tenn. 2014). The defendant has the

burden of proving a violation by a preponderance of the evidence. State v. Edgin, 902

S.W.2d 387, 389 (Tenn. 1995), as amended on rehearing (Tenn. July 10, 1995).

The State’s Brady obligations reach all “favorable information,” regardless of its

admissibility. Jordan v. State, 343 S.W.3d 84, 96 (Tenn. Crim. App. 2011) (quoting

Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001)). “Information that is favorable to the

accused may consist of evidence that ‘could exonerate the accused, corroborate[] the

accused’s position in asserting his innocence, or [contain] favorable information that

would have enabled defense counsel to conduct further and possibly fruitful investigation

regarding’” a potential defense. Johnson, 38 S.W.3d at 56 (quoting State v. Marshall,

845 S.W.2d 228, 233 (Tenn. Crim. App. 1992)). Evidence which permits the defense to

impugn the reliability of the State’s investigation, impeach the credibility of witnesses, or

bolster the defense’s position amounts to favorable evidence. Jordan, 343 S.W.3d at 96.

Nevertheless, there is no suppression when the material is disclosed in time for a

defendant to use it effectively at trial. See United States v. Davis, 306 F.3d 398, 421 (6th

Cir. 2002) (finding no Brady violation where the material was disclosed at trial and the

defendant refused an opportunity to postpone the trial); Wayne R. LaFave et al., 6 Crim.

Proc. § 24.3(b) n.88 (4th ed. 2017). “Although the complete non-disclosure of significant

exculpatory evidence often makes an easy case for a due process violation, delayed

disclosure requires an inquiry into whether the delay prevented the defense from using

the disclosed material effectively in preparing and presenting the defendant’s case.”

State v. Caughron, 855 S.W.2d 526, 548 (Tenn. 1993) (Daughtrey, J., dissenting).

Because a violation occurs only when the suppression of material exculpatory evidence

prevents its effective use at trial, “‘Brady generally does not apply to delayed disclosure

of exculpatory information, but only to a complete failure to disclose.’” State v. Justin

Terrell Knox, No. W2014-01577-CCA-R3-CD, 2015 WL 6122257, at *4 (Tenn. Crim.

App. Oct. 16, 2015) (quoting Davis, 306 F.3d at 421). Delayed disclosure constitutes a

due process violation only when the delay causes prejudice to the defendant. Id.

In the event of a violation of the discovery provisions of Tennessee Rule of

Criminal Procedure 16, the trial court may order discovery or inspection, grant a

continuance, exclude the evidence, or take other remedial measures. Tenn. R. Crim. P.

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16(d)(2). Accordingly, the trial court should fashion relief which is effective and

appropriate. State v. Collins, 35 S.W.3d 582, 585 (Tenn. Crim. App. 2000). Any

prejudice accruing to the accused is a factor in determining what remedy is appropriate.

State v. Giles, 493 S.W.3d 504, 521 (Tenn. Crim. App. 2016). “A trial court has wide

discretion in fashioning a remedy for non-compliance with a discovery order, and the

sanction should fit the circumstances of the case.” State v. Downey, 259 S.W.3d 723, 737

(Tenn. 2008). An abuse of discretion occurs when the trial court applies an incorrect

legal standard or when it reaches a decision which is against logic or reasoning and which

causes an injustice to the party complaining. State v. Merriman, 410 S.W.3d 779, 791

(Tenn. 2013).

Many of the arguments in the briefs of the Defendants and the State center on

whether the material was subject to disclosure pursuant to Brady or Tennessee Rule of

Criminal Procedure 16. We note that the Defendants do not claim that the State failed to

disclose the material prior to trial but maintain that the State failed to disclose the

evidence in sufficient time to allow the Defendants to effectively investigate and utilize

the evidence at trial. However, the record reflects that defense counsel thoroughly

questioned Ms. Faulkner on cross-examination regarding her prior statements about her

role and the Defendants’ roles in the offenses and her telephone conversations from jail

during which she discussed her role and the benefits she expected to receive from the

State in exchange for her cooperation. Detective Cole’s supplemental report related to

the stop, which the Defendants thoroughly challenged and litigated during the

suppression hearing and at trial. The driver’s license and vehicle title information did not

involve hotly contested issues at trial. Regardless of whether the material was subject to

disclosure pursuant to Brady or Tennessee Rule of Criminal Procedure 16, the

Defendants have failed to establish that the delay in the disclosure prevented them from

effectively using the material effectively in preparing and presenting their defense.

Accordingly, the trial court did not abuse its discretion in holding the trial as scheduled.

Ms. Newell also maintains that the trial court erred in failing to impose an

appropriate remedy for the State’s failure to disclose “dispatch/radio traffic, and/or CAD

reports from both the Brentwood Police Department and Williamson County Sheriff’s

Office” until the middle of trial. Ms. Newell maintains that this evidence established that

the description of the suspects dispatched to the officers did not include a person

matching her description and would have corroborated her testimony at trial that she

never entered the home. We note that when Ms. Newell’s counsel requested the material

at trial, the trial court ordered the State to produce the material and reprimanded the

prosecutors for failing to provide it sooner. Ms. Newell never requested a mistrial or any

other remedy due to the late disclosure. Furthermore, it was established at trial that the

victim did not identify a woman matching Ms. Newell’s description when he called 911,

and the information provided to the officers by the dispatchers did not include a woman

- 28 -

matching Ms. Newell’s description. Ms. Newell has failed to establish that the State’s

late disclosure of the material resulted in prejudice.

IV. Admission of Expert Testimony

Mr. Flores maintains that the trial court erred in accepting Detective Pittz as an

expert in the field of computer and cell phone extractions and in admitting her testimony

regarding information extracted from various cell phones connected to the case. Mr.

Flores argues that Detective Pittz was not qualified to testify as an expert, that the process

or system about which she testified was not properly authenticated pursuant to Tennessee

Rule of Evidence 901, and that her testimony was not reliable. The State responds that

the trial court properly exercised its discretion in admitting the evidence. We agree with

the State.

Once the State began questioning Detective Pittz at trial regarding her examination

of the cell phones, both counsel for Mr. Morales and counsel for Mr. Flores objected.

Counsel for Mr. Flores argued that the State had failed to establish that Detective Pittz

was qualified as an expert, that her opinions were reliable, and that the data extracted

from the cell phones was properly authenticated. The prosecutor responded that

Detective Pittz could offer such testimony as a lay witness but that, nevertheless, he could

properly qualify her as an expert.

During a jury-out hearing, Detective Pittz testified that she had completed over

160 hours of training on cell phone forensics and over 400 hours of training on computers

and computer-related forensics. She had received training on the various platforms used

to extract information from cell phones. She previously had conducted forensic

examinations on approximately forty-five cell phones and ten computers. She had

testified regarding cell phone extractions on two prior occasions but had never testified as

an expert.

On cross-examination, Detective Pittz testified that her training on the types of

computer language was “[v]ery minimal.” She completed a five-week course provided

by the Secret Service during which she received training on the collection process, the

extraction process, and the analysis of the data. She explained that a cell phone

extraction involves a computer program reading the cell phone and pulling the data from

it. The type of data that is read is dependent upon the platform used. She did not know

how the computer software program read the data and stated that programmers did not

disclose such proprietary information to the public.

Detective Pittz testified that the company that developed the software to conduct

the extractions had undergone a validation process. She noted that the software had been

- 29 -

tested by a national institute for validation purposes and that the examiner also had

validation techniques available. She explained that once an examiner extracts the

information from the cell phone through a platform, the examiner may compare the

information found in the reports to the actual information in the cell phone to ensure that

they are consistent. She stated that thousands of pages of information were extracted

from each cell phone in this case and that she did not compare all of the data listed in the

reports with the information stored in the cell phone. She compared some of the text

messages, some of the telephone numbers, and some of the contacts, but she was unable

to estimate the amount of information that she compared. Detective Pittz stated that

some of the information was written in a computer language and included in the reports

as logs, but she did not validate the logs. She also stated that the system used by the

Franklin Police Department likely had not been tested by the national institute. She did

not test the email addresses extracted from the cell phones to determine whether the email

addresses were legitimate, and she did not test or call the cell phone numbers from the

call logs extracted from the cell phones to determine whether they were valid. She did

not contact the cell phone providers to determine whether the cell phone numbers from

the call logs were listed under names other than those identified in the cell phones.

The trial court found that Detective Pittz had “specialized, technical or scientific

knowledge that would qualify her under [Tennessee Rules of Evidence] 702 and 703 and

704” and that defense counsel could explore any arguments challenging the detective’s

qualifications on cross-examination. Mr. Flores’s counsel argued that the State had failed

to establish that the process or system has been authenticated and, thus, reliable pursuant

to Tennessee Rule of Evidence 901(b)(9). The trial court found that Detective Pittz

satisfied Rule 901 by comparing the data in the reports to data in the cell phone to ensure

that the data matched. Counsel noted that he was challenging the reliability of Detective

Pittz’s opinion under Rule 703 but continued to argue that the system or process had not

been properly authenticated pursuant to Rule 901. The trial court found that “the State

has made a sufficient showing, to comply with Rule 901, the authentication, as well as

Rules … 702, 703, and 704 to qualify her as an expert, or someone with specialized

knowledge or training.”

On appeal, Mr. Flores asserts that the trial court erred in determining that

Detective Pittz was qualified to testify as an expert regarding cell phone extractions. The

trial court has broad discretion in determining the qualifications, admissibility, relevancy,

and competency of expert testimony. State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002).

This court will not overturn the trial court’s ruling on the admissibility of expert

testimony absent an abuse of that discretion. See State v. Ballard, 855 S.W.2d 557, 562

(Tenn. 1993). “‘A court abuses its discretion when it causes an injustice to the party

challenging the decision by (1) applying an incorrect legal standard, (2) reaching an

illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous

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assessment of the evidence.’” State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019)

(quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).

Tennessee Rule of Evidence 702 provides, “If scientific, technical, or other

specialized knowledge will substantially assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion or otherwise.”

An expert “may acquire the necessary expertise through formal education or life

experiences.” State v. Reid, 91 S.W.3d 247, 302 (Tenn. 2002). “However, the witness

must have such superior skill, experience, training, education, or knowledge within the

particular area that his or her degree of expertise is beyond the scope of common

knowledge and experience of the average person.” Id.

Detective Pittz testified regarding the hundreds of hours of training that she had

received on computer and cell phone extractions, as well as her experience in conducting

such extractions. The trial court determined that Detective Pittz was qualified to testify

as an expert in cell phone extractions and allowed her to testify regarding the data that

she extracted from the cell phones of various defendants and co-defendants. Although

Mr. Flores argues that Detective Pittz had never previously testified as an expert and was

unfamiliar with the proprietary technology of the computer codes utilized by the

platforms to extract the data, the trial court found that such arguments could be explored

by Mr. Flores’s counsel on cross-examination. We conclude that the trial court did not

abuse its discretion in this regard.

Mr. Flores next asserts that the process or system used in extracting data from the

cell phones was not properly authenticated in accordance with Tennessee Rule of

Evidence 901(b)(9) in that there was not showing that the process or system produced an

accurate result. “The requirement of authentication or identification as a condition to

admissibility is satisfied by evidence sufficient to the court to support a finding by the

trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid.

901(a). Both Rule 901 and the common law designate the trial court as the “arbiter of

authentication issues,” and, thus, the trial court’s ruling will not be disturbed on appeal

absent a showing that the trial court clearly abused its discretion. See Tenn. R. Evid. 901,

Advisory Comm’n Comments; State v. Mickens, 123 S.W.3d 355, 376 (Tenn. Crim. App.

2003).

Rule 901(b) lists examples of authentication or identification that conform with

the requirements of the rule and proves that such examples are “[b]y way of illustration

only, and not be way of limitation.” Rule 901(b)(9) includes the means of authenticating

a process or system as “[e]vidence describing a process or system used to produce a

result and showing that the process or system produces an accurate result.” Detective

- 31 -

Pittz testified that the company that developed the software or platform underwent an

evaluation process. She also validated the results of the extractions of the cell phones by

comparing the text messages, the telephone numbers, and the contacts listed in the reports

to the contents of the cell phones to ensure that the information appeared in the cell

phones. Mr. Flores argues that “[t]he fact that counsel received in discovery 5,000-6,000

pages of cell phone data in the report to what was allegedly on the phone and that

[Detective Pittz] did not verify every item[] and couldn’t even recall if she verified just

the day in question goes to unreliability of these systems.” However, Detective Pittz was

not required to verify each and every item in the report to establish the authenticity of the

evidence. Rather, according to the Advisory Commission Comments to Rule 901(b)(9),

“[a]ll that the lawyer need do is introduce evidence satisfying the court that the computer

system produces accurate information.” The trial court determined that Detective Pittz’s

comparison and verification of a sample of the data listed in the extraction report was

sufficient to authenticate the system or process used in cell phone extractions, and we

cannot conclude that the trial court abused its discretion in this regard.

Finally, Mr. Flores challenges the reliability of Detective Pittz’s testimony based

upon Tennessee Rule of Evidence 703, which requires that the trial court “disallow

[expert] testimony in the form of an opinion or inference if the underlying facts or data

indicate lack of trustworthiness.” He maintains that the testimony did meet the factors

used in evaluating the reliability of expert testimony. In McDaniel v. CSX

Transportation, Inc., our supreme court listed “nonexclusive factors” that courts “could”

consider in evaluating the reliability of scientific testimony, including:

(1) whether scientific evidence has been tested and the methodology with

which it has been tested; (2) whether the evidence has been subjected to

peer review or publication; (3) whether a potential rate of error is known;

(4) whether … the evidence is generally accepted in the scientific

community; and (5) whether the expert’s research in the field has been

conducted independent of litigation.

955 S.W.2d 257, 265 (Tenn. 1997). These factors also may be applied to nonscientific

expert testimony. See State v. Stevens, 78 S.W.3d 817, 834-35 (Tenn. 2002). Other

nondefinitive factors that a trial court may consider in assessing the reliability of an

expert’s methodology include the expert’s qualifications and the connection between the

expert’s knowledge and the basis of the expert’s opinion. See Brown v. Crown Equip.

Corp., 181 S.W.3d 268, 274-75 (Tenn. 2005); Stevens, 78 S.W.3d at 835. At trial, Mr.

Flores did not specifically challenge the reliability of Detective Pittz’s testimony based

upon the application of these factors. Nevertheless, any error in the admission of the

evidence is harmless in light of the overwhelming evidence supporting Mr. Flores’s guilt.

See Tenn. R. App. P. 36(a). Mr. Flores is not entitled to relief regarding this issue.

- 32 -

V. Denial of Motion for Mistrial

Mr. Morales maintains that the trial court erred in denying his motion for mistrial

when counsel for Ms. Newell questioned Ms. Faulkner about Mr. Morales’s illegal drug

activity in violation of the trial court’s order granting Mr. Morales’s motion in limine.

The State responds that the trial court properly exercised its discretion in declining to

declare a mistrial. We agree with the State.

Prior to trial, Mr. Morales filed a motion in limine seeking to exclude any

testimony that he engaged in illegal drug activity. During a pretrial hearing, the State

agreed not to present such evidence, and the trial court granted the motion. While

questioning Ms. Faulkner on cross-examination at trial, Ms. Newell’s counsel mentioned

Ms. Faulkner’s “financial struggles” and asked her, “It was very tempting when [Mr.

Morales] had contacted you and asked you if you would sell drugs for them?” Mr.

Morales’s counsel objected and moved for a mistrial. The trial court denied the motion,

noting “it was so quick and it was just one comment. I don’t know that she even

answered.” The trial court offered to provide a curative instruction to the jury, but Mr.

Morales’s counsel declined, stating the instruction would only draw attention to the

improper question.

“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, that is, 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 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).

While the question from Ms. Newell’s counsel was clearly improper, Mr.

Morales’s counsel promptly objected prior to any answer. As a result, no improper

evidence was admitted. The question came toward the end of the State’s proof after

multiple days of trial. The trial court did not abuse its discretion in determining that the

question was not so prejudicial that manifest necessity required a mistrial. Furthermore,

the trial court later instructed the jury that “[s]tatements, arguments, and remarks of

counsel … are not evidence.” “The jury is presumed to follow its instructions.” State v.

- 33 -

Young, 196 S.W.3d 85, 111 (Tenn. 2006). Mr. Morales is not entitled to relief regarding

this issue.

VI. Failure to Issue an Accomplice Instruction

Mr. Morales and Ms. Newell contend that the trial court erred in failing to instruct

the jury of the requirements that the testimony of an accomplice must be sufficiently

corroborated. Neither defendant, however, requested this instruction at trial. “In contrast

to an erroneous instruction or the failure to give a requested instruction,” any “alleged

omissions in the jury charge must be called to the trial judge’s attention or be regarded as

waived.” State v. Robinson, 146 S.W.3d 469, 509 (Tenn. 2004). Because neither of

these defendants requested a jury instruction on the corroboration of an accomplice’s

testimony at trial, this issue is waived. See State v. Bowman, 327 S.W.3d 69, 94 (Tenn.

Crim. App. 2009); State v. Anderson, 985 S.W.2d 9, 17-18 (Tenn. Crim. App. 1997).

Neither of the defendants requested that this court review the issue for plain error.

Although this court may, in certain circumstances, address as plain error an issue that

would otherwise be waived, we decline to engage in a plain error review of this issue.

See Tenn. R. App. 13(b). Mr. Morales and Ms. Newell are not entitled to relief regarding

this issue.

VII. Sentencing

Mr. Morales and Ms. Newell challenge the trial court’s imposition of consecutive

sentences. The State responds that the trial court properly exercised its discretion in

ordering consecutive sentences. We agree with the State.

A. Sentencing Hearing

The State entered the presentence reports of Mr. Morales and Ms. Newell as

exhibits during the sentencing hearing. Mr. Morales’s presentence report reflected that

he had prior convictions for attempted aggravated robbery and aggravated robbery. He

was released on parole when he committed the instant offenses. As part of the

presentence report, Mr. Morales also submitted a handwritten statement in which he

admitted that he was selling marijuana for Raoul prior to the offenses. He denied

participating in the commission of the offenses. He stated that while he was watching the

police chase on television, he received a text message from Raoul, who said the police

were after him and asked Mr. Morales to pick him up. Mr. Morales stated that he drove

Raoul to the hotel room to retrieve Raoul’s belongings and his marijuana and then drove

him to a home in Lebanon, Tennessee.

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According to Ms. Newell’s presentence report, at the time of the instant offenses,

she had five prior convictions of drug possession and a prior conviction for driving on a

suspended license. Her probation had been revoked on multiple occasions. At the time

she committed the instant offenses, she was charged with theft of property valued less

than $500 and possession or casual exchange of drugs, and she was subsequently

convicted of the charges. The State presented documentation establishing that Ms.

Newell was released on bond at the time of the instant offenses. The presentence report

reflects that Ms. Newell admitted frequent use of Xanax and marijuana.

Mr. Morales presented the testimony of his mother, who explained their family’s

moving to Nashville when Mr. Morales was sixteen years old, their financial struggles,

and the impact of the death of a cousin with whom Mr. Morales had a close relationship.

She stated that Mr. Morales became quiet and reserved, was angry, and began reacting

harshly toward his family. She stated that Mr. Morales was incarcerated at the age of

seventeen and remained in prison for four years. After he was released on parole, he

lived with his parents and worked in the construction industry. His mother acknowledged

that he was released on parole four or five months before he was arrested for the instant

offenses.

Mr. Morales stated by allocution that when he was released from prison, he was

unable to find employment so he started a construction business. He stated that he

completed a class on social life skills while incarcerated and requested that the trial court

order him to take additional classes while in prison.

Ms. Newell presented the testimony of her mother and her father and a letter from

her grandmother. Her mother and father testified regarding the help that Ms. Newell

provided in caring for her siblings when she was younger. Her mother testified that Ms.

Newell “got off-track” after her grandfather’s death. Her mother maintained that the

offenses were not part of Ms. Newell’s nature and that she would not commit similar

offenses in the future. Ms. Newell’s mother testified that she was unaware of Ms.

Newell’s substance abuse problems and that Ms. Newell never used drugs in her

presence. Her mother said she would not be surprised if Ms. Newell admitted smoking

marijuana on a daily basis because Ms. Newell’s friends smoked marijuana. Her mother

was surprised by Ms. Newell’s use of Xanax and Ecstasy. Her mother knew that Ms.

Newell had minor traffic violations, previously had been arrested for theft, and had

violated the terms of her probation on one prior occasion. Her mother was unaware of

the prior drug convictions.

Ms. Newell offered an allocution in which she said she was sorry “for the crimes

[she] was accused of two years ago.” She apologized to the victim and said she “could

have made a better choice that day, but [she] was also scared.” She stated that while

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incarcerated, she attended church services and Alcoholics Anonymous meetings and

completed a recovery program.

In making its sentencing decisions, the trial court considered the evidence

presented at trial and during the sentencing hearing, the presentence reports, the

principles of sentencing, arguments made as to sentencing alternatives, the nature and the

characteristics of the criminal conduct, the evidence offered by the parties regarding

mitigating and enhancing factors, any statistical information as to sentencing practices for

similar offenses in Tennessee, the allocutions made by both defendants, the victim’s

statement, and the defendants’ potential for rehabilitation or treatment.

The trial court found that Mr. Morales was a Range II, multiple offender and that

Ms. Newell was a Range I, standard offender. The trial court applied the following

enhancement factors to both Mr. Morales and Ms. Newell: (1) each of the defendants

“has a previous history of criminal convictions or criminal behavior, in addition to those

necessary to establish the appropriate range”; (5) they either “treated, or allowed a victim

to be treated, with exceptional cruelty during the commission of the offense”; (6) the

amount of damage to property taken from the victim was particularly great; (8) before

trial or sentencing, both Mr. Morales and Ms. Newell “failed to comply with the

conditions of a sentence involving release into the community”; (9) as applicable to the

aggravated burglary and theft convictions, the defendants “possessed or employed a

firearm, explosive device or other deadly weapon during the commission of the offense”;

(10) they “had no hesitation about committing a crime when the risk to human life was

high”; and (12) at the times that the felonies were committed Mr. Morales was released

on parole, and Ms. Newell was released on bail. T.C.A. § 40-35-114(1), (5), (6), (8), (9),

(10), (12). The trial court also found that Mr. Morales was “a leader in the commission

of an offense involving two (2) or more actors.” T.C.A. § 40-35-114(2). The trial court

considered Mr. Morales’s employment as a mitigating factor. See T.C.A. § 40-30-

113(13).

The trial court merged the aggravated robbery and theft convictions and the two

aggravated burglary convictions. The trial court sentenced Mr. Morales to twenty years

for the aggravated robbery and aggravated burglary convictions and eight years for the

conspiracy conviction. The trial court sentenced Ms. Newell to ten years for the

aggravated robbery and aggravated burglary convictions and four years for the

conspiracy conviction. The trial court ordered Mr. Morales and Ms. Newell to serve their

sentences consecutively, for effective sentences of forty-eight years and twenty-four

years, respectively.

In imposing consecutive sentences, the trial court found both Mr. Morales and Ms.

Newell were “offender[s] whose record of criminal activity is extensive”; and “dangerous

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offender[s] whose behavior indicates little or no regard for human life and no hesitation

about committing a crime in which the risk to human life is high.” T.C.A. § 40-35-

115(b)(2), (4). The trial court reviewed the facts and circumstances of the case, noting

that the Defendants planned to commit the home invasion while the victim was there, that

the intruders were armed, and that the intruders pointed a loaded gun at the victim’s head.

The trial court found “there was a risk to human life that was very high to all of these

people, not just to … the victim.”

B. Consecutive Sentencing

Mr. Morales challenges the trial court’s finding that he had an extensive record of

criminal activity, arguing that two prior convictions do not constitute an extensive record.

He also challenges the trial court’s finding that he is a dangerous offender, asserting that

the trial court erroneously based its finding upon the conduct of the co-defendants rather

than Mr. Morales’s own conduct and that the trial court failed to find the additional

factors set forth in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Ms. Newell does

not specifically challenge the trial court’s findings that she had an extensive record of

criminal activity or that she was a dangerous offender. Rather, she maintains that the

imposition of consecutive sentences resulted in an effective sentence that is “greater than

that deserved for the offense committed” and is not “justly deserved in relation to the

seriousness of the offense.” See T.C.A. §§ 40-35-102(1), -103(2).

This court reviews challenges to the length of a sentence under an abuse of

discretion standard, “granting a presumption of reasonableness to within-range

sentencing decisions that reflect a proper application of the purposes and principles of our

Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). A trial court abuses

its discretion when it applies an incorrect legal standard, reaches an illogical conclusion,

bases its decision on a clearly erroneous assessment of the evidence, or employs

reasoning that causes an injustice to the party complaining. State v. Herron, 461 S.W.3d

890, 904 (Tenn. 2015). 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.” Bise, 380 S.W.3d at 709-

10. The decision to impose consecutive sentences rests within the sound discretion of the

trial court. State v. Hayes, 337 S.W.3d 235, 266 (Tenn. Crim. App. 2010). The standard

of review for consecutive sentencing is abuse of discretion with a presumption of

reasonableness. State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). “So long as a trial

court properly articulates reasons for ordering consecutive sentences, thereby providing a

basis for meaningful appellate review, the sentences will be presumed reasonable and,

absent an abuse of discretion, upheld on appeal.” Id. at 862. The appealing party bears

the burden of proving that the sentence was improper. State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991).

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To impose consecutive sentencing, the trial court must find by a preponderance of

the evidence at least one of seven factors listed in Tennessee Code Annotated section 40-

35-115(b), which include: (2) “The defendant is an offender whose record of criminal

activity is extensive” and (4) “The defendant is a dangerous offender whose behavior

indicates little or no regard for human life and no hesitation about committing a crime in

which the risk to human life is high.” The trial court need only find one of the criteria

listed in the statute to properly impose a consecutive sentence. State v. Alder, 71 S.W.3d

299, 307 (Tenn. Crim. App. 2001). When basing its consecutive sentencing

determination on the “dangerous offender classification, the trial court must conclude that

the evidence has established that the aggregate sentence is ‘reasonably related to the

severity of the offenses’ and ‘necessary in order to protect the public from further

criminal acts.’” Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938).

Consecutive sentencing must be “justly deserved in relation to the seriousness of the

offense,” and “no greater than that deserved for the offense committed.” T.C.A. §§ 40-

35-102(1), -103(2); see State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

Although Mr. Morales maintains that he does not have an extensive history of

criminal conduct because he has only two prior convictions, the application of this factor

is not based solely upon prior convictions. This court has recognized that “‘[c]urrent

offenses may be used in determining criminal history for the purposes of consecutive

sentencing.’” State v. Terry Patterson, No. W2017-01481-CCA-R3-CD, 2018 WL

4677522, at *12 (Tenn. Crim. App. Sept. 28, 2018), perm. app. denied (Tenn. Jan. 18,

2019) (quoting State v. Carolyn J. Nobles, No. M2006-00695-CCA-R3-CD, 2007 WL

677861, at *12 (Tenn. Crim. App. Mar. 7, 2007)). Furthermore, “‘an extensive record of

criminal activity may include criminal behavior which does not result in a conviction.’”

State v. Koffman, 207 S.W.3d 309, 324 (Tenn. Crim. App. 2006) (quoting State v.

William L. Vaughn, No. M2002-01879-CCA-R3-CD, 2003 WL 21877929, *5 (Tenn.

Crim. App. Aug. 1, 2003), perm. app. denied (Tenn. Dec. 22, 2003)); see State v.

Gregory Gill, No. W2018-00331-CCA-R3-CD, 2019 WL 549651, at *18 (Tenn. Crim.

App. Feb. 11, 2019), perm. app. denied (Tenn. May 16, 2019). The record reflects that

Mr. Morales had prior convictions for aggravated robbery and attempted robbery, was

released on parole for those convictions a few months prior to committing the instant

offenses, was admittedly selling drugs while on parole, was convicted of multiple

felonies in the instant case, and admitted to helping Raoul escape from the police

following the commission of the offenses. We conclude that the trial court properly

found that Mr. Morales was an “offender whose record of criminal activity is extensive.”

See T.C.A. § 40-35-115(b)(2). Although Mr. Morales contends that the trial court did not

make the findings necessary to order consecutive sentences based upon the “dangerous

offender” factor, “an extensive criminal history, standing alone, is enough to justify the

imposition of consecutive sentencing.” State v. Nelson, 275 S.W.3d 851, 870 (Tenn.

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Crim. App. 2008). We conclude that the trial court properly exercised its discretion in

ordering Mr. Morales to serve his sentences consecutively.

The record also supports the trial court’s finding that Ms. Newell had an extensive

record of criminal activity. See T.C.A. § 40-35-115(b)(2). Ms. Newell has numerous

prior misdemeanor convictions that spanned over a number of years, had violated the

terms of probation on multiple occasions, had an extensive history of illegal drug use, had

multiple charges pending and was released on bond for those charges when she

committed the instant offenses, and was convicted of multiple felonies as a result of her

participation in the instant offenses. Although Ms. Newell maintains that her effective

sentence was “greater than deserved for the offenses committed” and was not “justly

deserved in relation to the seriousness of the offense,” the trial court made extensive

findings regarding the serious nature of the offenses and the threat to the lives of the

victim and others caused by the conduct of Ms. Newell and her co-defendants. We

conclude that the trial court did not abuse its discretion in ordering Ms. Newell to serve

her sentences consecutively.

CONCLUSION

We conclude that the Defendants are not entitled to relief, and we affirm the

judgments of the trial court.

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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