State of Tennessee v. Nicholas Brooks

12/09/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 1, 2020

STATE OF TENNESSEE v. NICHOLAS BROOKS

Direct Appeal from the Criminal Court for Shelby County

No. 17-05802 Chris B. Craft, Judge

No. W2019-01802-CCA-R3-CD

A Shelby County jury convicted the Defendant, Nicholas Brooks, of first degree felony

murder in perpetration of a robbery, first degree felony murder in perpetration of a

burglary, especially aggravated robbery, aggravated burglary, and employing a firearm

during the commission of a dangerous felony. The trial court sentenced him to an

effective sentence of life plus twelve years. On appeal, the Defendant contends that: (1)

the trial court erred when it admitted the Defendant’s mother’s statement into evidence; (2)

the trial court improperly instructed the jury; and (3) the evidence at trial was insufficient to

support his convictions. After a thorough review of the record and the applicable law, we

affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

Claiborne H. Ferguson and Chloe P. Hawes (at trial) and Ramon Damas (on appeal),

Memphis, Tennessee, for the appellant, Nicholas Brooks.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant

Attorney General; Amy P. Weirich, District Attorney General; Karen Cook and Jose F.

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

OPINION

I. Facts

This case arises from the armed robbery of the victim’s, Christopher Waters,

home, during which the intruders killed the victim and took multiple items belonging to

the victim, including his car. For these crimes, a Shelby County grand jury indicted the

Defendant for first degree felony murder in perpetration of a robbery, first degree felony

murder in perpetration of a burglary, especially aggravated robbery, aggravated burglary,

and employing a firearm during the commission of a dangerous felony.

A. Trial

The parties presented the following evidence at the Defendant’s trial: The victim’s

mother, Lisa Waters, testified that he was thirty years old when he was murdered. The

victim was a school teacher in the Memphis City School System where he taught

orchestra and violin. Ms. Waters visited the victim often at the home he owned in

Memphis. The victim also owned a vehicle, an orange 2016 T-Top Mustang. Ms.

Waters attended a party in February of 2016 at the victim’s home to celebrate his

purchase of the house and his vehicle.

Vernon Fant, the victim’s supervisor, testified that he was an art and music teacher

in Memphis. Mr. Fant testified that he was familiar with the victim’s handwriting and

would recognize it. Mr. Fant identified a photo of the victim’s handwriting, as well as a

photo of the victim’s orange Mustang.

Mr. Fant testified that the last time he saw the victim was on a Thursday, and the

victim did not come to work the next day, Friday, December 9, 2016. Mr. Fant knew

that the victim had a music “gig” the night before. Mr. Fant recalled that the victim was

late for school and had not contacted Mr. Fant to say he would be late, which was

unusual. The school asked Mr. Fant and another colleague to go to the victim’s house to

check on the victim. Mr. Fant had attended the victim’s housewarming party and

therefore knew where the victim lived.

Mr. Fant and his colleague, Rashad Weathers, went to check on the victim.

When they arrived at the victim’s home, they noticed that the victim’s orange Mustang

was not there and one of the glass doors on the house was smashed. This raised their

suspicions, and, after getting no answer when calling out for the victim and calling his

cell phone, the two men went inside the victim’s home.

Once inside the home, the men saw that there was writing on the wall and a

missing television from the kitchen and a television on the floor in the den. The men

noticed that the victim’s bedroom door was closed; they noticed a blood stain on the door

and then decided to call the police. Before the police arrived, the two men decided to

open the bedroom door, and inside, they discovered the victim’s body on the floor, naked

from the waist down. They immediately ran out of the house. In the victim’s

driveway, the men noticed loose change on the ground, which they found to be strange.

Mr. Fant testified about the messages written on the wall of the victim’s home,

2

which had not been there previously. Mr. Fant identified photographs of the messages on

the walls, where “Suicide” and “Nobody did this but me, cHristopher Waters,” was written.

Mr. Fant noted that the victim’s name was misspelled in the message. He did not think the

writing looked like the victim’s, and he found it odd that the victim’s name was printed as

“cHristopher.” Mr. Fant stated that capitalizing the second letter of his name was not

consistent with the way the victim wrote.

The police arrived after Mr. Fant and his colleague had run out of the house. The

men stood outside and spoke with the police for a long time, and, while doing so, they saw

the victim’s car drive up the street. Mr. Fant immediately told the police that he had seen

the victim’s car.

Officer Theresa Carlson of the Memphis Police Department (“MPD”) testified that

on December 9, 2016, she heard a call over police dispatch about officers responding to the

victim’s home. As she pulled up to the victim’s residence, another officer advised her that

an orange Mustang, matching the description of the one taken during the robbery, had just

driven by. Officer Carlson pursued the vehicle and initiated a traffic stop of the orange

Mustang. Officer Carlson activated her body camera before she exited her vehicle. The

State played the camera footage, although it is not included in the record on appeal.

Officer Carlson testified that the recording showed her stopping the orange Mustang; the

Defendant exited the vehicle and walked towards a house. Officer Carlson called to the

Defendant to stop, but he did not comply. Officer Carlson testified that she eventually

detained the Defendant, and he provided the name “Joseph Smith” as his own. She ran the

tag number for the orange Mustang through the vehicle information system and the tag

came back as registered to the victim; the papers in the vehicle also had the victim’s name

on them. Officer Carlson identified the Defendant in the courtroom as the driver of the

orange Mustang. Officers took the Defendant into custody later that day.

Officer Eric Hutchison of the MPD testified that he performed a gunshot residue test

on the Defendant. The test revealed the presence of gunshot residue on the Defendant’s

face, which Officer Hutchison testified indicated that the Defendant was very close to a

weapon when it was fired.

Stacy Milligan testified that he worked for the MPD as a crime scene investigator at

the time of this crime and responded to the call at the victim’s residence. Officer Milligan

identified photographs he had taken at the crime scene and of evidence found; one of the

photos was of the loose change found in the driveway, which contained a unique coin. He

also identified a .40 caliber bullet shell casing that was collected from the victim’s

residence, as well as a butcher knife found in the victim’s bedroom. Officer Milligan

identified an empty liquor bottle found in the bar of the residence. He testified that the

residence appeared to have been ransacked. Officer Milligan identified several

3

photographs of blood stains on the walls and doors. Officer Milligan identified a

“Masonic ring” found in the driveway of the residence.

On cross-examination, Officer Milligan said that, when he saw the victim’s body,

the body was naked from the waist down.

Travis Horn testified that he had previously employed the Defendant to work in his

restaurant. Mr. Horn testified that he and the Defendant had a disagreement and “parted

ways” in 2015. Mr. Horn was shown a photograph of some of the writing on the wall

inside the victim’s residence; he identified his name written on the wall and stated that it

was misspelled. He testified that it was not his handwriting, and he had not written it or

seen the writings before. Mr. Horn testified that he did not know the victim and had never

been to his home. Mr. Horn reiterated that he and the Defendant had not “parted ways”

amicably.

On cross-examination, Mr. Horn denied “hanging out” with the Defendant but

reiterated that he employed the Defendant to work at his restaurant. Mr. Horn identified a

photograph of the Masonic ring found in the driveway and stated that he had seen the

Defendant wearing the ring in the past.

John Stone testified that he worked as a crime scene investigator for the MPD and

processed the evidence collected at the victim’s residence. Sergeant Stone identified an

empty liquor bottle found inside the victim’s residence, which he dusted for fingerprints

and checked for DNA. He identified several more bottles of alcohol that were collected

from the victim’s residence that were checked for fingerprints and DNA.

Multiple MPD officers testified about the evidence in this case. In addition to

finding the Defendant’s fingerprints in the victim’s vehicle and on the vehicle’s gas cap, an

officer found the Defendant’s fingerprints on a liquor bottle that officers collected from the

victim’s home.

Dr. Katrina Vanpelt testified as an expert in the field of forensic medical pathology.

Dr. Vanpelt was shown the victim’s autopsy report, prepared by Dr. Marco Ross, who

conducted the autopsy. According to the report, Dr. Ross examined the victim’s body and

identified gunshot wounds to his neck and hand as well as three stab wounds to his torso.

Dr. Ross described the gunshot wound to the neck as fatal. Dr. Vanpelt testified that the

victim’s wound to the neck was survivable with medical attention. She stated that the

manner of death was homicide.

Officer Billy Byrd testified that he worked in the MPD homicide unit and

investigated the victim’s death. As part of his investigation, he executed a search warrant

4

at a residence and found the Defendant in one of the bedrooms. Officer Byrd obtained

certain items of evidence from the bedroom in which the Defendant was found, including

the keys to the victim’s orange Mustang. The Defendant did not exhibit any signs of

injury.

Lieutenant Eric Kelly testified that he worked in the homicide unit at MPD and

interviewed the Defendant on December 9, 2016. The Defendant claimed to have an

injury but none was visible to Lieutenant Kelly. Lieutenant Kelly issued the requisite

Miranda warnings, and the Defendant signed a waiver of rights form. During the

interview, the Defendant handwrote a statement, which the State showed to the jury.

In his statement, the Defendant admitted calling the victim on the night of the

murder and making plans to go to the victim’s residence for the purpose of getting money

for the Defendant’s friend, “Mac.” With “Mac” and two other men, the Defendant went to

the victim’s house and called the victim, asking him to let them inside. The victim invited

the Defendant inside and, once the two men were together inside the victim’s bedroom, the

victim asked the Defendant to get in bed with him. The Defendant declined to do so, and

then he heard “Mac” and the other men begin to break down the victim’s door to enter the

residence. The Defendant and the victim attempted to bar the bedroom door to keep the

men out. The Defendant stated that he was “hit with a small gun.” The other men then

began “ransacking” the victim’s home and asking the victim where his money was kept.

The other men then robbed the Defendant of his belongings, including his wallet, watch,

and jewelry. The Defendant heard the victim get shot with a weapon and went to aid the

victim as the victim was bleeding and struggling to breathe.

Lieutenant Kelly testified that, because the Defendant’s statement was handwritten,

he decided to take a formal statement from the Defendant to establish additional facts.

This statement was memorialized in a question and answer format and was admitted into

the record as an exhibit and shown to the jury. In the formal statement, the Defendant

admitted to being a friend of the victim’s and having sexual relations with him in the past.

The Defendant stated that he was not present when the victim died but was present when

the victim was shot. The Defendant denied being the shooter; he stated that either “Mac,”

or one of the other men had shot the victim.

In the formal statement, the Defendant stated that the “plan” was for the Defendant

to go to the victim’s house to get money from him and then let the other men inside the

residence so they could rob the victim. The Defendant admitted that he “picked” the

victim for the robbery. The Defendant stated that only one gunshot was fired and stated

that “Mac” had a handgun and another man, “Kell,” had a rifle. The Defendant stated that

the group had driven to the victim’s residence in a rented Chevy Malibu that was driven by

“Kell.” The Defendant admitted to seeing a weapon inside the vehicle on the drive over to

5

the victim’s residence. The Defendant stated that he did not take anything from the victim

but admitted to driving his vehicle away. The other men stole a “few” televisions, the

victim’s cell phone, an Ipad, and a laptop computer.

In the formal statement, the Defendant described again the events of the evening

leading up to the victim being shot; his description was largely consistent with his

handwritten statement. The Defendant stated that, after leaving the victim’s residence in

the victim’s car, the Defendant returned to the victim’s residence twice during the night.

Outside the presence of the jury, the State informed the trial court that it wished to

play the Defendant’s jailhouse phone call with the Defendant’s mother; the Defendant

objected to playing the mother’s statements from the call because she would not be made

available for cross-examination. On the recording, her question to the Defendant was,

“Why are there photos of [the victim] on your phone?” The State argued that the

statement was highly relevant to show an inference of obstruction of evidence on the part

of the Defendant, and additionally that the State had subpoenaed the Defendant’s mother to

testify.

The trial court ruled that it would allow the Defendant’s mother’s statement into

evidence, on the grounds that it was “very relevant” and not being offered for the truth of

the matter asserted but rather, to show the Defendant’s state of mind. The trial court stated

that it would instruct the jury on “inference of concealment” or “obstruction of evidence,”

consistent with Tennessee Pattern Jury Instruction 42.27. The trial court found that the

Defendant’s mother was available for cross-examination and thus could be called to testify

that she had not seen the photos or that she had not personally done so but heard about them

from someone else. The State played the recording aloud for the jury.

John Panzer, employed as a senior engineer with the University of Memphis,

testified that he lived next door to the victim and had a surveillance system on his home at

the time of the victim’s murder. Law enforcement knocked on his door the day after the

victim’s murder and asked to review his camera footage. Mr. Panzer was able to provide

footage from 9 p.m. on December 8th until the following day when the police requested the

footage. The relevant footage was either played for the jury or the jury was shown a still

shot of the footage with a timestamp. Mr. Panzer recalled that he had not met the victim

prior to December 8th but had seen the victim’s vehicle parked in the driveway. Mr.

Panzer described the vehicle as a bright orange Mustang with a distinctive deep muffler on

it. Mr. Panzer recalled that he went over to the victim’s yard on December 8th and

introduced himself; their interaction was recorded on the security recording at 9 p.m. Mr.

Panzer informed the victim of the security surveillance system on his house.

Mr. Panzer testified that he had reviewed the security footage from throughout the

6

night of December 8th and into the early morning of December 9th. The security recording

showed a car park on the street near the victim’s house at around 1 a.m. and a person

exiting the driver’s side door. Another individual got out of the vehicle a short time after

and stood near the parked vehicle. For the next few hours, the security recording showed

four individuals coming and going from the victim’s residence. At one point, there was an

hour’s long “break” in activity on the recording but at 3 a.m. the recording showed an

individual running from the victim’s residence. The recording showed a vehicle reversing

into the victim’s driveway and the men loading items into the trunk, including one large

item. The vehicle returned to the driveway several times throughout the night until dawn.

The victim’s vehicle was also shown being driven away, and Mr. Panzer recalled hearing

the victim’s car start at 6:45 a.m.

Sautonio Crutcher testified that he knew the Defendant through a friend. He

testified that the Defendant called him one morning, around 6 a.m., and asked for Mr.

Crutcher’s help. Mr. Crutcher met up with the Defendant, who arrived driving a bright

orange Mustang. The Defendant told Mr. Crutcher it was his new vehicle and offered to

take Mr. Crutcher on a drive. Mr. Crutcher declined to go on the drive if the Defendant

did not say where they were going. As a precaution, Mr. Crutcher sent a text message to

his girlfriend saying that he was with the Defendant should something happen to him. Mr.

Crutcher noticed that the vehicle had a license plate, rather than a temporary tag that is

typically placed on new cars, and this fact raised a red flag in his mind. Mr. Crutcher

identified a handwritten statement he gave to the police on December 20, 2016 following

the victim’s death.

The trial court then, outside the presence of the jury, discussed which jury

instructions it planned to issue to the jury; neither of the parties made any objection to the

proposed instructions. The trial court stated that it planned to instruct the jury on the law

of flight, based on the video recording of Officer Carlson’s stop of the Defendant’s vehicle

and her subsequent interaction with the Defendant during which he lied about his identity

and attempted to evade Officer Carlson when she tried to speak with him. The Defendant

then objected to this portion of the instruction and requested that it not be included; the trial

court overruled the Defendant’s objection and responded that it felt the evidence presented

fairly raised proof of flight, stating:

In looking at the proof, in the video when [Officer Carlson] was

behind the [D]efendant, [the Defendant] pulled into a driveway and

pretended to know the people in the house and gave a false name to [Officer

Carlson], so I think it has been fairly raised in the proof that [the Defendant]

left the scene of difficulty and there was a subsequent evasion, because he

lied about his name and tried to pull away from the police officer. But, that

7

is up to the jury if they think that is flight.

The trial court proceeded to instruct the jury; the jury instructions are not included

in the transcript. Following its deliberations, based upon the evidence presented at the

Defendant’s trial, the jury returned guilty verdicts on all counts: first degree felony murder

in perpetration of a robbery, first degree felony murder in perpetration of a burglary,

especially aggravated robbery, aggravated burglary, and employing a firearm during the

commission of a dangerous felony. The trial court merged the first degree murder

convictions (Counts 1 and 2) and imposed a life sentence for those two convictions. The

trial court imposed a concurrent twenty-four-year sentence for the especially aggravated

robbery conviction (Count 3). Finally, the trial court imposed consecutive six-year

sentences for the aggravated burglary conviction (Count 4) and the employing a firearm

during the commission of a dangerous felony conviction (Count 5), for a total effective

sentence of life plus twelve years. It is from these judgments that the Defendant now

appeals.

II. Analysis

On appeal, the Defendant asserts that the trial court erred when it admitted the

Defendant’s mother’s statement into evidence. He also contends that the trial court

improperly instructed the jury and that the evidence at trial was insufficient to support his

convictions. The State responds that the trial court properly admitted the Defendant’s

mother’s statement. The State further responds that the Defendant has waived his

argument regarding the jury instruction because he failed to include the jury instructions

in the record on appeal. Finally, the State responds that the evidence is sufficient to

support the Defendant’s convictions.

A. The Defendant’s Mother’s Statement

The Defendant asserts that the trial court erred when it admitted his mother’s

statement made to him during a jailhouse phone call. He contends that the statement

was inadmissible hearsay and should not have been admitted pursuant to the state of mind

hearsay exception. He contends that the mother’s “state of mind is irrelevant to the

case” because her testimony “cannot show the [D]efendant’s state of mind.” The State

responds that the trial court properly determined that the statement was not hearsay

because it was not being offered for the truth of the matter asserted. The State argues

that the trial court did not classify the statement as hearsay admissible pursuant to an

exception and that the same does not apply. The State further responds that, if admitting

the statement amounted to error, it was harmless. We agree with the State.

8

The admissibility of evidence rests within the sound discretion of the trial court,

and this court does not interfere with the exercise of that discretion unless a clear abuse

appears on the face of the record. State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010).

The Tennessee Rules of Evidence provide that all “relevant evidence is admissible,”

unless excluded by other evidentiary rules or applicable authority. Tenn. R. Evid. 402.

Of course, “[e]vidence which is not relevant is not admissible.” Id. Relevant evidence

is defined as evidence “having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Tenn. R. Evid. 401. Even relevant evidence,

however, “may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403. Hearsay is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted. Tenn. R. Evid. 801(c).

At trial, the Defendant objected to a recorded telephone call between the

Defendant and his mother, during which the mother asked the Defendant, “Why are there

photos of that guy, dead on your phone?” and the Defendant responded, “What are you

talking about, where did you see it, exactly?” The Defendant argued that his mother

was not available for cross-examination regarding her statement, and thus, it was

inadmissible hearsay. The Defendant also argued that this evidence raised an issue of

bad acts pursuant to Tennessee Rule of Evidence 404(b), namely attempt to conceal or

destroy the photographs which were no longer in existence. The Defendant claimed that

he had no way of challenging his mother’s statement or seeing the photographs that she

referenced. The State argued that this evidence did not raise a “404(b) issue” but

instead an attempt to destroy evidence, the cell phone photos, which was an inference of

guilt.

The trial court stated that the mother’s statement made it clear that photos of the

victim had been in existence on the Defendant’s phone, which the trial court deemed was

“extremely relevant.” The trial court found that the mother was available to testify and

had been present during the trial. The trial court further found that the statement about

the photos of the victim was extremely relevant because they showed an inference of

concealment since the photos were not part of the trial evidence and presumably were no

longer in existence.

The trial court concluded:

. . . I will allow the statement of the mother, because it is not being

offered for the truth of the matter asserted, but to show the state of mind of

9

the [D]efendant and whether or not he thought it was true. And, although

there is a [Sixth Amendment] constitutional problem with it, to a certain

extent, that can be easily cured by the defense, because they can call the

mother as a witness to say that she did not see [the photos] on the

[Defendant’s] phone, that someone else told her it was there, or that she

was just saying that, so that is easily remedied and that is a witness [who] is

available to the defense, . . . .

We conclude that the trial court did not abuse its discretion when it admitted the

mother’s question from the recording of the phone call because it was not hearsay. As we

have stated, Rule 801(c) defines hearsay as a “statement . . . offered in evidence to prove

the truth of the matter asserted.” Under Rule 801(a), “[a] ‘statement’ is (1) an oral or

written assertion.” Our supreme court noted in State v. Flood, 219 S.W.3d 307, 314-15

n.5 (Tenn. 2007), that “questions are often not hearsay because they are not offered to

prove the truth of their content[.]” Even if we assume that the Defendant’s mother’s

statement, in the form of a question, was an “assertion” that the Defendant at some point

had pictures of the deceased victim on his phone, the mother’s statement was not offered to

prove the truth of the matter asserted but to provide context to the Defendant’s portion of

the recorded jailhouse phone call and was thus admissible on that basis. See, e.g., State v.

Kendell Edward Johnson, No. M2011-00792-CCA-R3-CD, 2012 WL 3731699, at *18-19

(Tenn. Crim. App. Aug. 29, 2012); State v. George Anthony Bell, No.

M2008-01187-CCA-R3-CD, 2009 WL 3925370, at *6 (Tenn. Crim. App. Nov. 19, 2009);

see also Neil P. Cohen et al., Tennessee Law of Evidence, § 8.01 [10], 8-27 (6th ed. 2011)

(“Statements designed to (1) provide a context for, or (2) permit an understanding of,

another statement may not be hearsay.”)

The Defendant’s mother was nonetheless available to clarify why she asked the

question and what she was asserting. The trial court did not abuse its discretion when it

concluded that the mother’s statement was not hearsay, was relevant and thus admissible.

Nevertheless, we note that jailhouse phone call recordings are generally admissible

pursuant to the business records exception to the hearsay exclusion rule. See Tenn. R.

Evid. 803(6); see also State v. Dustin Shawn Price, No. M2012-00117-CCA-R3-CD, 2013

WL 4539034, at *7-9 (Tenn. Crim. App., at Nashville, Aug. 26, 2013), no perm. app. filed.

The Defendant is not entitled to relief on this issue.

B. Jury Instruction

The Defendant contends that the trial court erred when it instructed the jury by: (1)

including the law of flight; (2) correcting the language of the instruction on criminal

responsibility after the jury had begun its deliberations; and (3) answering a question

posed by the jury during deliberations. The State responds that the Defendant has

10

waived any issue regarding the jury instructions because he failed to include the actual

jury instructions in the appellate record. Even so, the State maintains that all of the trial

court’s actions were proper in light of applicable law. We agree with the State.

1. Flight Instruction

Crucially, the Defendant has failed to include the jury instructions in the record on

appeal. It is the duty of the appellant to provide a record which conveys a fair, accurate,

and complete account of what transpired with regard to the issues which form the basis of

the appeal. See Tenn. R. App. P. 24(b) (“the appellant shall have prepared a transcript of

such part of the evidence or proceedings as is necessary to convey a fair, accurate and

complete account of what transpired with respect to those issues that are the bases of

appeal”); see State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). The failure to prepare

an adequate record for review of an issue results in a waiver of that issue. Thompson v.

State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). Therefore, this portion of the

Defendant’s argument is waived.

We now turn to the remaining arguments with regard to the trial court’s correction

of a mistake in the jury instructions and the trial court’s response to a question from the

jury. The State contends that these arguments are also waived because the Defendant’s

failure to include the actual jury instructions renders our review incomplete. While we

agree that the Defendant has risked waiver for failing to include the jury instructions in

their entirety, see Tenn. R. App. P. 24(b), the transcript includes the discussion and the

Defendant’s resulting objection for these two issues. Thus, in our view, we have

sufficient context from which to review them.

A trial court has the duty to fully instruct the jury on the general principles of law

relevant to the issues raised by the evidence. See State v. Burns, 6 S.W.3d 453, 464

(Tenn. 1999); State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); State v. Elder, 982

S.W.2d 871, 876 (Tenn. Crim. App. 1998). Nothing short of a “‘clear and distinct

exposition of the law’” satisfies a defendant’s constitutional right to trial by jury. State

v. Phipps, 883 S.W.2d 138, 150 (Tenn. Crim. App. 1994) (quoting State v. McAfee, 737

S.W.2d 304 (Tenn. Crim. App. 1987)). In other words, the trial court must instruct the

jury on those principles closely and openly connected with the facts before the court,

which are necessary for the jury’s understanding of the case. Elder, 982 S.W.2d at 876.

A jury instruction is considered “prejudicially erroneous,” only “if it fails to fairly submit

the legal issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944

S.W.2d 346, 352 (Tenn. 1997) (citing State v. Stephenson, 878 S.W.2d 530, 555 (Tenn.

1994)). Because questions regarding the propriety of jury instructions are mixed

questions of law and fact, our standard of review here is de novo, with no presumption of

correctness. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State v. Smiley, 38

11

S.W.3d 521, 524 (Tenn. 2001). Even if a trial court errs when instructing the jury, such

instructional error may be found harmless. State v. Williams, 977 S.W.2d 101, 104

(Tenn. 1998). Furthermore, an erroneous or inaccurate jury charge, rather than an

omitted jury charge, may be raised for the first time in a motion for new trial. State v.

Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996) (citing Tenn. R. Crim. P. 30(b)).

2. Correction to the Jury Instructions

The Defendant argues that when the trial court issued a correction with regard to

the criminal responsibility instruction, it improperly drew the jury’s attention to that

particular instruction, which was the State’s main theory, giving it greater significance.

As we previously stated, a trial court has the duty to fully instruct the jury on the general

principles of law relevant to the issues raised by the evidence. See Burns, 6 S.W.3d at

464. A jury instruction that “fails to fairly submit the legal issues or if it misleads the

jury as to the applicable law” is considered erroneous. See Hodges, 944 S.W.2d at 352.

Special jury instructions may be given “to supply an omission or correct a mistake made

in the general charge, to present a material question not treated in the general charge, or

to limit, extend, eliminate, or more accurately define a proposition already submitted to

the jury.” State v. Cozart, 54 S.W.3d 242, 245 (Tenn. 2001) overruled on other

grounds.

Outside the presence of the jury, the trial court informed the parties of two

mistakes that had occurred during the instructions given to the jury the previous day.

One mistake occurred during the “order of deliberation” instructions and the other during

the criminal responsibility instruction. The trial court noted that the pattern instructions

for criminal responsibility had recently changed and that the trial court’s secretary had

inadvertently included the old version of the instruction. The Defendant objected to

substituting the updated version, claiming that it would “highlight” the criminal

responsibility section and its additional language and would be unfair to the Defendant.

The trial court overruled the objection, stating that both the Defendant and the State had a

right to a complete and proper charge of the law. In the presence of the jury, the trial

court simply asked the jury to “tear out” the pages containing the two erroneous

instructions and read to the jury the corrected instructions. The trial court made no other

comments about the mistakes or the corrected instructions except to read them aloud.

The Defendant claims, however, that because the jury later had a question about the

criminal responsibility instruction, special emphasis and attention was clearly put on that

portion by the trial court’s action.

It is again paramount that the Defendant failed to include the initial jury

instruction, precluding our review of the difference in the old versus new criminal

responsibility instruction. However, in our view, by issuing the corrected instruction

12

and thus ensuring that the jury was instructed properly and with updated law, the trial

court performed its duty. “To issue an erroneous instruction to the jury would, as we

have said, “mislead[] the jury as to the applicable law” and result in prejudicial error.

The proper way to correct a mistake in the general charge is to give an additional

instruction, which the trial court properly did. See Cozart, 54 S.W.3d at 245. We find

no error, and the Defendant is not entitled to relief.

3. Question from the Jury

The Defendant argues that the trial court improperly answered a question from the

jury with regard to criminal responsibility. He contends that, instead of answering the

jury’s question, the trial court should have reread the instruction and, that by not doing

so, the trial court improperly boosted the State’s sole theory of the Defendant’s guilt.

The question from the jury was as follows: “Should or can we assume that a

reference to the Defendant includes, or one [for] whom the Defendant is criminally

responsible, even where the [latter] is not explicitly stated?” The trial court’s response

was, “Yes, anywhere the word defendant appears in element six you can read it as

defendant, or one for whom the defendant is criminally responsible.” The Defendant

objected to the response, maintaining that the proper response was only a rereading of the

criminal responsibility instruction.

A trial judge has the authority to give supplemental instructions to the jury in

response to a jury question. State v. Forbes, 918 S.W.2d 431, 451 (Tenn. Crim. App.

1995). The “appropriate course of action” for a trial court responding to a jury question

is to “bring the jurors back into open court, read the supplemental instruction . . . along

with a supplemental instruction emphasizing that the jury should not place undue

emphasis on the supplemental instructions, and then allow the jury to resume its

deliberations.” State v. Bowers, 77 S.W.3d 776, 791 (Tenn. Crim. App. 2001). A trial

court’s failure to follow this procedure is subject to harmless error analysis. See Tenn.

R. App. P. 36(b); see also Bowers, 77 S.W.3d at 791 (concluding that the trial court’s

failure to read the supplemental instruction to the jury in open court and to admonish the

jury not to place undue emphasis on the supplemental instruction was harmless).

The State acknowledges that the trial court failed to follow the proper procedure in

responding to the jury’s question. However, the Defendant bears the burden of

establishing that the error was not harmless, and he has failed to explain how the trial

court’s error “‘more probably than not affected the judgment or would result in prejudice

to the judicial process.’” State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008)

(quoting Tenn. R. App. P. 36(b)). He has not met that burden here, providing no

evidence that, even if the jury’s attention was drawn especially to the criminal

13

responsibility instruction, the same more probably than not affected the outcome of its

judgment. Id. Accordingly, the Defendant is not entitled to relief regarding this issue.

C. Sufficiency of the Evidence

The Defendant lastly contends that the evidence is insufficient to maintain his

convictions for first degree murder, especially aggravated robbery, and aggravated

burglary. He contends that he only intended to enter the victim’s home, and that, once

inside and realizing his accomplices’ intent to commit violent acts, he tried to prevent

harm to the victim. He further argues that being found driving the victim’s vehicle is

not evidence of his guilt and that there is no evidence of his intent to commit robbery or

burglary. The State responds that the evidence is sufficient from which a jury could

conclude that the Defendant shared the criminal intent of these crimes and furthered their

commission. The State also responds that the evidence shows that the Defendant stole

items from the victim’s home as well as his vehicle, sufficient to sustain his convictions

for robbery and burglary, and that the victim’s death during the commission of these

crimes was a result of his overt actions. We agree with the State.

When an accused challenges the sufficiency of the evidence, this court’s standard of

review is whether, after considering the evidence in the light most favorable to the State,

“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); see Tenn. R. App. P.

13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91

S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon

direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the

absence of direct evidence, a criminal offense may be established exclusively by

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury

decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn

from such evidence, and the extent to which the circumstances are consistent with guilt and

inconsistent with innocence, are questions primarily for the jury.’” State v. Rice, 184

S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn.

1958)). “The standard of review [for sufficiency of the evidence] ‘is the same whether the

conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

In determining the sufficiency of the evidence, this court should not re-weigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990). Nor may this Court substitute its inferences for those drawn by the trier of fact

14

from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.

State, 286 S.W.2d 856, 859 (Tenn. 1956)). “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 are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659

(Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the

testimony of the witnesses for the State and resolves all conflicts in favor of the theory of

the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme

Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,

527 (Tenn. 1963)). This court must afford the State of Tennessee the “‘strongest

legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and

legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at

775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt

against a defendant removes the presumption of innocence and raises a presumption of

guilt, the convicted criminal defendant bears the burden of showing that the evidence was

legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58

(Tenn. 2000) (citations omitted). This standard is identical whether the conviction is

predicated on direct or circumstantial evidence. State v. Casper, 297 S.W.3d 676, 683

(Tenn. 2009); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977). In the absence of direct

evidence, a criminal offense may be established entirely by circumstantial evidence. State

v Majors, 318 S.W.3d 850, 857 (Tenn. 2010) (citing Duchac v. State, 505 S.W.2d 237, 241

(Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-58 (1958)).

Applicable here, first-degree felony murder is “[a] killing of another committed in

the perpetration of or attempt to perpetrate any . . . robbery or burglary[.]” T.C. A. §

39-13-202(a)(2) (2019). No culpable mental state is required for conviction of felony

murder except the intent to commit the underlying felony. Id. § 39-13-202(b) (2019).

Especially aggravated robbery is defined as “the intentional or knowing theft of property

from the person of another by violence or putting the person in fear” accomplished with a

deadly weapon and where the victim suffers serious bodily injury. Id. § 39-14-401, 403

(2019). Burglary is defined as entering a place without the effective consent of the

owner with the intent to commit felony, theft, or assault. Id. § 39-14-402 (2019). “A

15

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 person is criminally responsible for

an offense committed by the conduct of another, if: (2) “Acting with 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.

The evidence, viewed in the light most favorable to the State, shows that the

Defendant knew the victim personally. The Defendant admitted telling his accomplices

about the victim when they asked where they could get money. Together with the other

men, the Defendant planned to go to the victim’s house, gain entry, and take some of the

victim’s things to sell. Because of their personal relationship, the victim invited the

Defendant into his home on the night of December 8, 2016. The Defendant was aware

that his accomplices were armed with weapons prior to entering the victim’s residence.

Inside the victim’s residence, the men ransacked it of its contents and stole a television,

multiple electronics, and the victim’s wallet, watch, and other jewelry. During the

robbery, the victim was shot and killed; he was also stabbed multiple times. Following

the shooting, the Defendant took the victim’s vehicle, along with other items from inside

the victim’s home, and left the scene driving the victim’s car. He returned to the

victim’s home several times during the hours after the victim was shot. The Defendant

later tried to pass off the vehicle as his own new car. This is sufficient evidence from

which a jury could rationally conclude that the Defendant was criminally responsible for

the victim’s murder, which occurred during the commission of the especially aggravated

robbery and aggravated burglary and thus is sufficient to support his convictions. The

Defendant is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the

judgments of the trial court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

16