State of Tennessee v. James Rodney Smith

05/25/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 15, 2022

STATE OF TENNESSEE v. JAMES RODNEY SMITH

Appeal from the Circuit Court for Houston County

No. 2015-CR-86 Suzanne Lockert-Mash, Judge

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No. M2021-00547-CCA-R3-CD

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The Defendant, James Rodney Smith, was convicted of arson following a jury trial, and

he was sentenced to four years on probation and ordered to pay $15,000 in restitution.

No appeal was filed, and the Defendant sought post-conviction relief and was permitted

to file a delayed motion for a new trial and appeal. James Rodney Smith v. State, No.

M2019-00820-CCA-R3-PC, 2020 WL 3832996, at *6 (Tenn. Crim. App. July 8, 2020)

(reversing the post-conviction court’s denial of post-conviction relief and remanding for a

hearing on due process tolling), no perm. app. filed. On appeal of the conviction, the

Defendant challenges the sufficiency of the evidence, the unanimity of the jury verdict,

and the restitution order. After review, we affirm the trial court’s judgment.

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

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

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Wayne Clemons (at motion for new trial hearing and on appeal), Clarksville, Tennessee;

William B. “Jake” Lockert III, District Public Defender; and Matt Mitchell and Timothy

Richter, Assistant Public Defenders (at trial) for the appellant, James Rodney Smith.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Senior

Assistant Attorney General; Ray Crouch, District Attorney General; and Talmage

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

In 2015, the home of the Defendant’s deceased mother, Ms. Addie Lucille Smith,

burned down. During the investigation that followed, the Defendant was implicated in

the 2010 arson of a cabin situated on his mother’s property and occupied by the

Defendant’s former employee, Mr. Kevin Coy. A grand jury indicted the Defendant for

arson in November 2015, charging that the Defendant

[o]n or about October 16, 2010, . . . [did] knowingly damage any

structure by means of a fire or explosion without the consent of all persons

who have a possessory, proprietary or security interest therein or with the

intent to destroy or damage any structure to collect insurance for the

damage or destruction or for any unlawful purpose, in violation of T.C.A.

39-14-301, a Class C Felony[.]

The case proceeded to a jury trial. The State’s theory at trial was that the Defendant

burned the cabin without the consent of Mr. Coy or to intimidate Mr. Coy or retaliate

against him for having cooperated with law enforcement in a separate marijuana

cultivation investigation involving the Defendant. The Defendant conceded at trial that

he burned the cabin but asserted that he owned the cabin and had a right to burn it. The

Defendant also asserted that he did not know until after he burned the cabin that Mr. Coy

cooperated with law enforcement. The jury found him guilty of arson. No appeal was

filed due to “the negligence of multiple attorneys,” and the Defendant sought post-

conviction relief and was permitted to file a delayed motion for a new trial and appeal.

James Rodney Smith v. State, 2020 WL 3832996, at *6. The Defendant now appeals the

conviction arguing that the State failed to show lack of consent or his intent to burn the

cabin for an unlawful purpose, that the use of a general verdict form violated his right to

jury unanimity, and that he was improperly ordered to pay restitution. See T.C.A. § 39-

14-301(a) (2010).

The trial evidence showed that the Defendant’s mother owned a few hundred acres

of land in Houston County on which her family’s farm operated until the end of her life.1

She had three children: the Defendant; his brother, Mr. Jerry Smith; and his sister, Ms.

Janet Faye Smith. Mr. Coy lived and worked on the Defendant’s personal farm that

adjoined the family farm, but Mr. Coy moved into the cabin on the Defendant’s mother’s

1

Although the appellate record does not include the trial transcript, we take judicial notice of the

record in James Rodney Smith, 2020 WL 3832996. See State v. Lawson, 291 S.W.3d 864, 869 (Tenn.

2009) (a court may take judicial notice of its own records).

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farm to work for the Defendant’s brother or the Defendant’s nephew, Mr. Brian Smith,

who was the Defendant’s brother’s son, in early 2010.

The Defendant’s brother, Mr. Jerry Smith, testified that he and his siblings had

reached a verbal agreement based on their mother’s will and that under the agreement, he

was going to inherit the part of the property on which the cabin was located. Mr. Jerry

Smith ultimately inherited that part of the property after the cabin had been burned. He

stated that the cabin had been built by his uncle decades before it burned. At some point

around 1986 or 1987, the Defendant’s brother and the Defendant moved the cabin from

one location on their mother’s farm to another location on the farm with the intent that

the Defendant would make it his home. The Defendant worked on improving the cabin

initially but abandoned the cabin when he purchased a home on a separate piece of

property and moved into it. The Defendant’s brother said the Defendant never lived in

the cabin and never returned to the cabin after abandoning it. The Defendant’s brother

used the cabin as a hunting lodge and allowed someone to reside in it for a few years.

Before the cabin was burned, the Defendant’s nephew and Mr. Coy started renovating the

cabin. The Defendant’s nephew and Mr. Coy completed an unfinished cistern at the

cabin, plastered the cabin, installed off-grid electricity, added a bathroom, including a

shower or tub, and added doors and windows. The Defendant’s brother never saw the

Defendant help renovate the cabin. Mr. Coy moved into the cabin as part of an

employment agreement in which he worked for the Defendant’s nephew in exchange for

five dollars per hour and free housing. According to the Defendant’s brother, Mr. Coy

was the last occupant of the cabin, and the Defendant was never the manager of his

mother’s farm.

The Defendant’s brother testified that Mr. Coy worked with the Defendant prior to

moving into the cabin. During the summer of 2010, the Defendant began cultivating

marijuana on his property. The Defendant’s brother received two letters from the

Defendant in July 2010. The first letter stated in relevant part that Mr. Coy “r[a]n his

mouth to” the Defendant’s nephew and

[i]f they keep running their mouths there will prob[ab]ly be a chopper

flying my farm. So, deliv[er], the deer eat it up and I pulled it up [because]

of . . . their talk. . . . If a chopper fl[ies] I may lose my farm . . . . You

deliver the story to ‘your’ son, and make him believe it. . . . Deliver the

story and never speak of this to me again. What I do is my business. . . . I

will deal with [Mr. Coy] when this is over! . . . [D]eliver the story and make

this s[**]t go away.

In the second letter, the Defendant wrote,

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This problem was started by [Mr. Coy]. . . . Deliv[er], the story which they

will want [to] believe [because] of jealous[y]. . . . Tell [your son] I showed

you that I pull[ed] it up to make you believe I did. If you don’t, I know

[Mr. Coy] will not stop running his mouth.

The Defendant’s brother testified that he understood the letters to mean that the

Defendant “was wanting [him] to convince [the Defendant’s nephew and Mr. Coy] that

the deer[] ate his marijuana crop so that they wouldn’t have any interest in it or be

discussing it.”

Sometime around September 2010, the Defendant’s marijuana crop was raided by

law enforcement agents, and the Defendant was ultimately convicted of criminal charges

arising out of that incident. The Defendant’s brother agreed that the letters written by the

Defendant indicated he was aware that Mr. Coy knew about his marijuana crop. He also

agreed that the Defendant would have known Mr. Coy lived in the cabin on his mother’s

farm.

In October 2010, the Defendant’s brother returned home from out of state to find

that the cabin had been burned. He stated that the fire department and law enforcement

were present at the farm and that the cabin had been rendered to “just ashes and coals.”

On cross-examination, he said that Mr. Coy was not present at the cabin when it burned

but was “on vacation” for a few weeks prior to the burning to visit family in West

Tennessee. He testified that Mr. Coy moved “[w]hen it burnt. After it burnt that moved

him out.” He stated that he found several of Mr. Coy’s belongings in the remains after

the fire, including dog tags and old coins, tools, a burned pile of books, and remnants of

the off-grid electrical system. The Defendant’s brother cleaned up the site after the fire

and hauled in dirt to bury the remains. He stated that he did not intentionally conceal the

remains and that when he cleaned the site, he did not have proof that the Defendant had

burned the cabin. According to the Defendant’s brother, the Defendant drove by the

cabin as it was burning but did not stop.

The Defendant’s brother did not have any receipts from the renovations. The

Defendant’s nephew, who stood to inherit the property after the Defendant’s brother, had

carried out the renovations. After the cabin burned down, the Defendant’s brother

permitted the Defendant’s nephew to cut down approximately $6,000 worth of timber on

the property to help him recover some of the money he spent improving the cabin with

Mr. Coy. The Defendant’s brother acknowledged that he told federal law enforcement

agents that he believed the Defendant burned the cabin in 2010 but stated that he was just

speculating. Once the Defendant’s mother passed away, the Defendant challenged the

administration of the estate and sued his brother and nephew for libel and slander. The

Defendant also tried to investigate who took the timber off the property. The

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Defendant’s brother denied at trial that the timber was stolen and stated that he had a one-

third interest in the property. The Defendant’s brother also denied burning his mother’s

home and did not know who did. He stated that the Defendant agreed to purchase the

house for an amount lower than the insurance payment. He agreed that he received more

money from the insurance payment than he would have received if the house had been

sold to the Defendant. He recalled that the fire was investigated but that it burned “too

hot for them to really come to any conclusion about it.”

The Defendant’s nephew testified that the cabin was located on property owned by

the Defendant’s mother. He stated that he understood the Defendant and the Defendant’s

sister were going to inherit other parts of the property, while the Defendant’s brother was

going to inherit the part of the property on which the cabin was located. The Defendant’s

nephew said the cabin “was a sound building” with oak hardwood floors and poplar walls

and ceilings. He testified that the Defendant removed the wood stove that had been

inside the cabin and left the roof exposed, which rotted out the floor. The Defendant’s

nephew had to replace that part of the floor before installing a new wood stove. He said

that Mr. Coy began living in the cabin “six, maybe eight months” prior to any

improvements being made after the Defendant asked Mr. Coy to leave the Defendant’s

property. Mr. Coy and the Defendant’s nephew improved the cabin by cleaning out the

existing cistern and adding a bathtub and shower, toilet, a septic system, off-grid solar

electricity, a water pump, a new gutter, a wood stove and gas stove, a bed, and “other

odds and ends . . . to make it livable.” The Defendant’s nephew detailed the value of

those improvements on an itemized list reflecting a total of $15,859. He stated that he

obtained the solar electricity components in a trade and estimated it would cost over

$7,000 to replace the components. He stated that none of the items on the list belonged

to the Defendant.

The Defendant’s nephew made the improvements to give Mr. Coy a place to live

and to rent the cabin to hunters if Mr. Coy moved elsewhere. He agreed he would not

have made the improvements if the Defendant owned the cabin or was going to own it

and that the Defendant never tried to stop them from improving the cabin. In October

2010, the Defendant’s nephew was alerted to the fire, went to the cabin, and saw the

Defendant “sitting in the pasture just before getting to the cabin in his truck.” As a result,

he believed the Defendant burned the cabin. After the fire, the Defendant’s brother and

nephew “hauled off all the burned appliances and . . . took up what was left of the

foundation and hauled in some red clay with the intention of putting a house trailer

there.” The Defendant’s nephew stated that the Defendant knew he had property in the

cabin. He also stated that Mr. Coy had “[e]verything he owned” in the cabin, including

books and “an ammo can full of old silver money.”

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On cross-examination, the Defendant’s nephew stated that he cut approximately

$6,000 worth of timber off of the property after the Defendant’s mother passed away. He

stated that his father told him to cut the timber and that they shared the proceeds.

However, he denied that the money was to make up for the cost of his improvements to

the cabin. Regarding the division of the Defendant’s mother’s estate, he believed the

Defendant’s sister would inherit the center of the property, the Defendant’s brother would

inherit the side of the property containing the cabin, and the Defendant would inherit the

last part of the property.

The Defendant’s nephew agreed that the Defendant was given the cabin by the

Defendant’s mother. He also agreed that the Defendant was going to move into the cabin

originally, but he believed the Defendant abandoned it, and it was subsequently used by

the Defendant’s brother. He agreed the Defendant could have believed Mr. Coy

abandoned it when he left the property. He believed his father told the sheriff’s

department the Defendant burned the cabin, but the Defendant’s nephew did not

personally tell the police he suspected the Defendant of burning it. He did not report the

Defendant because his family was afraid of the Defendant and he did not have proof that

the Defendant burned the cabin. The Defendant’s nephew denied being part of the

Defendant’s marijuana cultivation. He agreed that he reported the Defendant to law

enforcement at the request of the Defendant’s brother. He said the Defendant was

“threatening to kill us over it.” He stated that he turned the Defendant in for growing

marijuana as a confidential informant but agreed he did not turn in the Defendant for

arson as a confidential informant. The Defendant’s nephew acknowledged he had prior

convictions relating to felony drug possession, theft of a vehicle, and concealing stolen

property.

Mr. Coy testified that he worked for the Defendant in the summer of 2009 and

lived on the Defendant’s property. At some point, the Defendant asked Mr. Coy to help

cultivate marijuana on his property, but Mr. Coy refused to help. The Defendant told Mr.

Coy that the marijuana crop would be started in the next spring and told Mr. Coy “to be

out by April 1.” He stated that he moved from the Defendant’s property to the cabin on

the Defendant’s mother’s farm to work for the Defendant’s brother and nephew. He

started improving the cabin with the Defendant’s nephew in March 2010. He and the

Defendant’s nephew “[p]ut in the septic and water, cleaned out the cistern, fixed the roof,

put up a gutter,” and added solar electricity components. He stated that the electricity

was not operational but that all of the components were installed except for the solar

panels. He lived in the cabin as part of an employment agreement with the Defendant’s

brother and nephew. He stated that the Defendant’s mother “came and looked at the

cabin and said that we [did] a fine job fixing it.” On cross-examination, he stated that he

did not ask the Defendant for permission to live in the cabin because the Defendant’s

brother and nephew claimed it as theirs and because the Defendant’s mother “said it was

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okay.” He stored clothes, tools, cookware, a gas stove, and a collection of approximately

one thousand volumes of books in the cabin. He agreed he bought the books for $200 but

believed they were worth more than that.

According to Mr. Coy, the Defendant visited the cabin regularly while Mr. Coy

was living in it. During the last visit in September 2010, the Defendant threatened to

burn the cabin, pulled a knife on him, and threatened to kill him over a dispute

concerning fruit trees that the Defendant claimed were not planted correctly. On cross-

examination, Mr. Coy agreed he did not consider the Defendant’s actions to be a real

threat toward his life. Mr. Coy also referenced during his testimony a dispute concerning

Mr. Coy’s knocking over the Defendant’s diesel tank but believed the Defendant’s threats

originated out of the controversy involving the fruit trees. Mr. Coy stated that he never

discussed the diesel tank dispute with the Defendant.

In September 2010, Mr. Coy traveled to West Tennessee for approximately one

month to work, bringing a suitcase of clothes and tools with him but leaving his other

belongings at the cabin. He stated that he planned on returning to the cabin. On cross-

examination, he stated that he placed a padlock on the cabin “to keep [the] curious out.”

He told the Defendant’s nephew that he was leaving and believed the Defendant would

find out through the Defendant’s nephew. When Mr. Coy was in West Tennessee, he

was contacted by a law enforcement agent about the Defendant’s marijuana cultivation.

He returned to the Houston County area to meet with the agent and to tell the agent that

he was not involved in the Defendant’s cultivation. After the meeting on October 11,

2010, Mr. Coy returned to West Tennessee. A few days later, he received a phone call

informing him that the cabin burned down. He stayed in West Tennessee to work

because he had no other place to go. He stated that there were solar panels located inside

the cabin that had not been installed yet but believed they were burned in the fire. On

cross-examination, Mr. Coy agreed he did not talk to law enforcement about the cabin

burning down at the time it happened even though he suspected the Defendant of burning

it.

Houston County Fire Chief David Harden testified that he responded to a fire at

the cabin on October 16, 2010. According to Chief Harden, the fire was a “full

involvement” fire, meaning that “the entire structure was in flames.” He stated that the

roof was down, most of the walls were destroyed, and none of the cabin was salvageable.

No occupants were in the cabin. He stated that he classified the fire as “probably

suspicious” because a neighbor informed him that the cabin had been empty for a period

of time and there was no obvious natural cause. He estimated the cabin to be worth

$15,000 based on a tax record.

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Officer Brian Hooper was employed by the Houston County Sherriff’s Department

(“HCSD”) on September 10, 2010, when he and other law enforcement agents found

approximately 1,150 to 1,200 marijuana plants on the Defendant’s farm. The HCSD

notified the Tennessee Bureau of Investigation and the federal Drug Enforcement Agency

(“DEA”). He believed the DEA investigation began that same day but stated they “were

in and out for a couple of weeks.” He stated that the DEA concluded its investigation

about a month to a month and a half after September 10, 2010, and the Defendant was

arrested at that time. On cross-examination, he could not recall the exact date they

arrested the Defendant and estimated that it was sometime between the middle of October

and the middle of November. He stated that he had been to the Defendant’s farm two to

three times to respond to “standard domestic issues or complaints.” He recalled a

complaint about a dead fish placed in a mailbox but did not know who responded to that

call. He recalled receiving a report about a fence that was cut down on the property but

did not know who took the report or whether any suspects were developed.

Officer Timothy Stavely was an investigator for the HCSD in September 2015,

when he responded to a fire at the home of the Defendant’s mother, who had recently

passed away. Officer Stavely requested state arson investigators to assist with the

investigation because “[t]here [were] a lot of questions surrounding the fire,” and Agent

Amy Lamping responded to assist. The Defendant agreed to an interview with Officer

Stavely and Agent Lamping, and an audio and video recording of the interview was

made. The interview lasted approximately two hours, during which the Defendant

discussed topics such as the family, the disputes over the timber and division of land, a

fence being cut, and the marijuana cultivation. Officer Stavely stated that he also recalled

that the Defendant “maybe found a dead fish in his mailbox.” He sensed that there was

an ongoing feud between the Defendant and his siblings and nephew. Officer Stavely

stated that the Defendant gave a letter written by the Defendant’s nephew to Agent

Lamping during the interview. In the letter, the Defendant’s nephew accused the

Defendant of burning the cabin in 2010, and when asked about the letter, the Defendant

admitted to burning the cabin. The Defendant said that the cabin belonged to him and

that he smelled marijuana at the cabin and burned it down. During the interview, the

Defendant mentioned that “the man was missing,” and Officer Stavely discovered that

Mr. Coy had been living in the cabin.

Based on the Defendant’s admissions, Officer Stavely started investigating the

October 2010 burning of the cabin and obtained a report from Chief Harden. He also

talked to the Defendant’s brother, who informed Officer Stavely that Mr. Coy had been

living there and that the Defendant’s nephew helped improve the cabin. Officer Stavely

then interviewed the Defendant’s nephew and Mr. Coy about the cabin. Officer Stavely

said that after the interview, “we felt like that since Mr. Coy was living there, all his

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property was in the home that it was appropriate to go to the grand jury.” Officer Stavely

never visited the scene of the fire.

On cross-examination, Officer Stavely did not know how long Mr. Coy had been

absent from the cabin before the Defendant burned it but said that Mr. Coy reported that

he had been out of town for a few weeks. He recalled that the raid on the Defendant’s

marijuana cultivation operation took place in September of 2010 and that the cabin

burned on October 16, 2010. Officer Stavely testified that the Defendant’s brother and

nephew and Mr. Coy had all told him Mr. Coy had belongings there. Officer Stavely

further testified that he “would say” the Defendant admitted to knowing Mr. Coy was

living in the cabin, explaining, “I mean he said, he was living there. He didn’t say he had

moved his stuff out and left. He said, the man was missing. He didn’t say he took all his

stuff and left and moved out.” Officer Stavely stated that there was no record of the

HCSD investigating the fire around the time it happened. He also agreed that there was

no evidence about what was in the cabin other than witness statements. He stated that he

tried to investigate who owned the cabin by looking at tax records but could not find any

record of it and that he could not say for certain who owned the cabin.

The Defendant testified that his uncle constructed the cabin around 1948. In 1978,

the Defendant moved the cabin to another location on his mother’s farm so that he and

his wife could live in the cabin. He dug a footing for the cabin, installed a cistern, and

laid block. He stated that his brother helped him move the cabin and knew that the cabin

was going to belong to the Defendant. However, a couple years after starting to improve

the cabin, the Defendant bought a farm adjoining his mother’s farm and moved onto that

property with his wife. He stated that he continued using the cabin for storage and that

“[i]t was recognized in my family that that building belonged to me.” For example, he

stored “[y]ard sale junk that people accumulated and had a little pinball machine” as well

as other items he did not want to throw away. On cross-examination, he also stated that

he permitted someone to live in the cabin off and on from 1985 to 1987. He stated that

the cabin was never in disrepair, and he did not know about a hole in the ceiling. He

claimed to have maintained control over the cabin until around 2009 when his nephew

removed the Defendant’s property from it and placed a padlock on the cabin without his

permission.

According to the Defendant, Mr. Coy was living on the Defendant’s property in a

trailer but moved out and began living in the cabin. He stated that he did not give anyone

permission to allow someone to live in the cabin. At some point, Mr. Coy knocked over

the Defendant’s diesel tank, which costed him approximately $1,100. On cross-

examination, the Defendant stated he believed Mr. Coy owed him for those costs. The

Defendant stated that he confronted Mr. Coy on May 3, 2010, about the diesel tank at the

cabin. During the confrontation, he advised Mr. Coy to leave, but Mr. Coy “smirked” at

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him. In response, the Defendant wielded a box cutter and admonished Mr. Coy. The

Defendant denied that he threatened to kill Mr. Coy or burn the cabin. He agreed he did

not file a police report about the diesel tank but stated he wanted to avoid starting a

family dispute which he believed would involve his mother.

The Defendant testified that in the weeks following his confrontation with Mr.

Coy, Mr. Coy “was just in and out of” the cabin. Approximately five or six days before

the Defendant burned the cabin, he learned that Mr. Coy had been absent for

approximately four to five weeks. He stated that he knew Mr. Coy would return and that

it would cause a disagreement with his nephew, so the Defendant poured diesel on the

cabin and set it on fire to prevent Mr. Coy from returning. He stated that no one was at

the cabin at the time he burned it and that there was a padlock on the back door. He

stated, “[W]hen I [saw] the lock on it I thought [the Defendant’s nephew] had the thing

locked and that [Mr.] Coy was gone.” He reasoned that “he would probably some day

want to come back and I just did not want him back there.” The Defendant claimed he

owned the cabin and that he did not want Mr. Coy living in it. The Defendant maintained

that he did not believe there was any property in the cabin when he burned it, in part

because he knew, from having previously provided Mr. Coy a place to live, that Mr. Coy

did not have many belongings.

On cross-examination, the Defendant stated that his marijuana crop was raided by

law enforcement on September 11 and September 12 of 2010. The Defendant agreed that

he was convicted of cultivating marijuana in federal court and that his nephew and

brother were the two main witnesses against him. He denied that Mr. Coy was also a

witness against him but conceded that Mr. Coy testified at the sentencing hearing. He

denied asking Mr. Coy to help him cultivate marijuana and stated that Mr. Coy’s

testimony to the contrary was false. He stated that Mr. Coy could have learned about the

marijuana crop from the Defendant’s nephew. He stated that he and his brother were not

speaking after July 3, 2010. He also stated that he did not know until after he was

arrested that Mr. Coy, the Defendant’s nephew, or the Defendant’s brother had spoken

with the DEA about his marijuana crop on October 11. He agreed that he burned the

cabin on October 16, but stated that he did so because he did not want Mr. Coy to return

to the cabin rather than because someone talked to the DEA about his marijuana crop.

Regarding the letter he wrote his brother, the Defendant stated that Mr. Coy started the

dispute between the Defendant, his nephew, and his brother and that he did not mean the

letter to be a threat but just wanted Mr. Coy to leave. He agreed his nephew also had

property in the cabin. He agreed that he smelled marijuana when he approached the

cabin but stated that he had already made up his mind to burn the cabin.

Mr. Kenneth Lawson, the Defendant’s mother’s neighbor, testified that his wife

saw the cabin burning and informed him about it. He stated that the cabin was located

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near his property, that he had seen the cabin “over the years,” and that there was “stuff in

there” like “just storage and whatever.” He knew Mr. Coy was living in it but thought he

was no longer living there because it had been several weeks since he saw any activity at

the cabin. He agreed he did not believe Mr. Coy possessed a large amount of property at

the cabin. He could not estimate the value of the cabin but stated that he did not think

there was running water or electricity. He did not recall telling the Defendant that Mr.

Coy left, and he stated that he did not interact with Mr. Coy often.

Mrs. Vicki Leeann Smith, the Defendant’s wife, testified that she and the

Defendant moved onto the Defendant’s mother’s farm around 1974. At some point, the

Defendant’s mother gave the cabin to them to live in and told them they could move it

anywhere on the farm. The Defendant and his wife paid to have the cabin moved to

another area on the farm, had a basement dug out, laid block for the foundation, and

brought electricity to the cabin. In 1979, she and the Defendant purchased their own

farm, moved onto it, and halted their work on the cabin. From then on, the cabin was

used to store the belongings they did not use except for when the cabin was used by some

relatives for hunting and an approximate three-year period of time before 1986 when they

allowed someone to stay in the cabin. She stated that they never gave the Defendant’s

brother or nephew permission to have or use the cabin. She stated that the last time she

saw the cabin was in 2009 and that she did not observe any improvements made to the

cabin after that.

The jury convicted the Defendant as charged on one count of arson, and he was

sentenced to four years on probation and ordered to pay restitution by the trial court in the

amount of $15,000 to the Defendant’s nephew. The final judgment was entered on

October 11, 2017, and filed on November 28, 2017. On April 18, 2018, the Defendant

filed a pro se motion challenging the award of restitution and requesting a hearing for a

judgment of acquittal. On May 1, 2018, the trial court entered an order denying the

motion on the ground that the Defendant failed to file a motion for new trial within the

thirty-day timeframe required by Tennessee Rule of Criminal Procedure 33.

On February 12, 2019, the Defendant, through private counsel, filed a petition for

post-conviction relief, requesting due process tolling of the one-year statute of limitations

governing his petition and requesting the ability to file a late motion for new trial based

on receiving the ineffective assistance of counsel. The post-conviction court dismissed

the petition on the grounds that the Defendant failed to comply with the statute of

limitations in filing his petition and that there were no grounds for tolling the statute of

limitations. On appeal, this court reversed the post-conviction court’s decision,

concluding that the Defendant pleaded sufficient grounds for tolling based on receiving

incorrect information from various attorneys and confusion regarding his legal

representation, and we remanded the matter to the post-conviction court for a hearing to

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determine whether the statute of limitations should be tolled. James Rodney Smith, 2020

WL 3832996, at *7.

After the case was remanded to the post-conviction court, the court entered an

agreed order granting the Defendant’s petition for post-conviction relief and permitting

the Defendant to file a delayed motion for new trial. The Defendant filed a motion for

new trial and an amended motion, claiming that the evidence was not sufficient to convict

him of arson, that the general verdict violated his right to a unanimous jury verdict, and

that the trial court erroneously ordered restitution. The Defendant attached affidavits to

his amended motion regarding the ownership of the cabin and tending to impeach the

Defendant’s nephew’s trial testimony about the origin of the solar electrical equipment

and the purpose of cutting the timber. At the hearing for the motion for new trial, Mr.

Coy generally testified consistently with his trial testimony. When asked if the incident

in which the Defendant pulled a knife on him occurred around May 1, 2010, Mr. Coy

responded, “If you say so.” On cross-examination, he answered affirmatively when

asked if the incident occurred “right before [he] left” for West Tennessee. Mr. John

Henry Hodges testified that he worked for the Defendant around 2009-2010 and was

present in May 2010 when the Defendant became angry about the fruit trees. The trial

court denied the motions, and the Defendant appeals.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to support his arson

conviction. Reviewing the sufficiency of the evidence supporting a criminal conviction

requires this court to first “examine the relevant statute(s) in order to determine the

elements that the State must prove to establish the offense.” State v. Stephens, 521

S.W.3d 718, 723 (Tenn. 2017). Next, we determine “‘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.’” Id. at 724

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). If the evidence is insufficient to

support the finding of guilt beyond a reasonable doubt, the finding of guilt “shall be set

aside.” Tenn. R. App. P. 13(e). Once a defendant has been convicted, the presumption

of innocence is replaced with a presumption of guilt on appeal. Turner v. State, 394

S.W.2d 635, 637 (Tenn. 1965). To overcome a presumption of guilt on appeal, the

defendant bears the burden of showing the evidence presented at trial was “insufficient

for a rational trier of fact to find guilt of the defendant beyond a reasonable doubt.” State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing State v. Patton, 593 S.W.2d 913

(Tenn. 1979)).

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On appeal, the State “is entitled to the strongest legitimate view of the trial

evidence and all reasonable and legitimate inferences which may be drawn from the

evidence.” State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003) (citing State v. Carruthers,

35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999);

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). This court may not reweigh or

reevaluate the evidence, because “[q]uestions about the credibility of witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact.” Id. at 236 (citing Bland, 958 S.W.2d at 659). After a guilty

verdict has been entered, the testimony of the State’s witnesses is accredited, and all

conflicts in the testimony are resolved in favor of the theory of the State. State v.

Nichols, 24 S.W.3d 297, 301 (Tenn. 2000) (citing State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973)).

A defendant’s guilt may be supported by direct evidence, circumstantial evidence,

or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343

S.W.2d 895, 897 (Tenn. 1961)). Whether the evidence underlying the defendant’s

conviction at trial was direct or circumstantial, the same standard of review applies. State

v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265,

275 (Tenn. 2009)).

Here, the Defendant was convicted of arson of a structure, which required the

State to prove that he “knowingly damage[d] any structure by means of a fire or

explosion:”

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

or security interest therein; or

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

the damage or destruction or for any unlawful purpose.

T.C.A. § 39-14-301(a) (2010). “‘Knowing’ refers to a person who acts knowingly with

respect to the conduct or to circumstances surrounding the conduct when the person is

aware of the nature of the conduct or that the circumstances exist.” T.C.A. § 39-11-

302(b); State v. Gene Shelton Rucker, Jr., No. E2002-02101-CCA-R3-CD, 2004 WL

2827004, at *10 (Tenn. Crim. App. Dec. 9, 2004) (arson is a nature of conduct offense).

When viewed in the light most favorable to the State, the evidence showed that

Mr. Coy moved into the cabin with his belongings in March 2010 to work for the

Defendant’s brother or nephew pursuant to an agreement in which Mr. Coy traded work

in exchange for housing. The Defendant’s mother, who owned the real property on

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which the cabin stood, told Mr. Coy that “it was okay” for him to live there, and the

Defendant was aware that Mr. Coy was a tenant of the cabin. Mr. Coy helped the

Defendant’s nephew improve the cabin, which included among other things completing

an unfinished cistern, plastering the cabin, building a bathroom, and adding doors,

windows, and a solar electricity system. The improvements totaled $15,859 in value. In

September 2010, Mr. Coy traveled to West Tennessee for approximately one month to

work, leaving all of his belongings at the cabin except a suitcase of clothes and some

tools he brought with him. Mr. Coy padlocked the door before leaving. The Defendant

conceded at trial that he visited the cabin on October 16, 2010, and observed that it was

padlocked and smelled marijuana, but he burned the cabin to prevent Mr. Coy from

returning to it. In his interview with Officer Stavely, he acknowledged burning the cabin

and said that “the man was missing.” Although the Defendant claimed to have

maintained sole possession of the cabin until he burned it, the jury implicitly declined to

credit his testimony. See Evans, 108 S.W.3d at 236. The jury could have rationally

concluded that the Defendant knew Mr. Coy was a tenant of the cabin but burned the

cabin without Mr. Coy’s permission. Accordingly, the evidence was sufficient to support

the Defendant’s conviction under section 39-14-301(a)(1).

Alternatively, the evidence showed that the Defendant wrote letters to his brother

expressing concern about a dispute with his nephew and Mr. Coy. In the letters, the

Defendant instructed his brother to tell the Defendant’s nephew and Mr. Coy that deer ate

his marijuana crop and that the Defendant pulled up the crop to make them stop talking

about it. He warned that “[i]f they keep running their mouths there will prob[ab]ly be a

chopper flying my farm” and that he would “deal with [Mr. Coy] when this is over.”

Prior to Mr. Coy traveling to West Tennessee for work in September 2010, the Defendant

confronted Mr. Coy at the cabin, wielded a boxcutter, threatened “to burn the cabin down

and kill” Mr. Coy, and told him to move out of the cabin. Mr. Coy left to work in West

Tennessee, but he received a phone call from a law enforcement agent and returned to

Houston County to talk to the law enforcement agent about the Defendant’s marijuana

cultivation. Mr. Coy stated that a few days later, he received a phone call informing him

that the cabin burned. He stated that he stayed in West Tennessee because he had

nowhere else to go. A law enforcement report dated October 11, 2010, reflected that Mr.

Coy cooperated with the investigation. The Defendant’s nephew testified that he was a

confidential informant in the Defendant’s marijuana cultivation case, and the Defendant’s

brother recalled talking to law enforcement in October 2010 about the case. On October

16, 2010, the Defendant burned the cabin. Although the Defendant said that he did not

know at the time he burned the cabin that his brother, nephew, or Mr. Coy cooperated

with law enforcement, the jury, through their verdict, declined to credit his testimony.

See Evans, 108 S.W.3d at 236. The jury could have rationally found that the Defendant

burned the cabin for the unlawful purpose of intimidating Mr. Coy or retaliating against

him for Mr. Coy’s cooperation with law enforcement in the drug case. T.C.A. § 39-14-

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301(a)(2) (2010). Therefore, the evidence was sufficient to support the Defendant’s

arson conviction.

II. Unanimity of the Jury Verdict

The Defendant contends that his right to jury unanimity was violated by the

general verdict in this case. The indictment charged that the Defendant

[o]n or about October 16, 2010, . . . [did] knowingly damage any

structure by means of a fire or explosion without the consent of all persons

who have a possessory, proprietary or security interest therein or with the

intent to destroy or damage any structure to collect insurance for the

damage or destruction or for any unlawful purpose, in violation of T.C.A.

39-14-301, a Class C Felony[.]

There is no dispute that the State proceeded to trial using the alternative theories of arson

in sections 39-14-301(a)(1)-(2) (2010). Following the close of evidence, the trial court

instructed the jury that the State had to prove the following elements beyond a reasonable

doubt in order to convict the Defendant of arson:

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

explosion; and

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

a possessory, proprietary or security interest therein; or

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

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

unlawful purpose.

The Defendant challenged in his motion for new trial that the general verdict form

permitted the jury to convict him of arson without distinguishing which conduct it found

him guilty beyond a reasonable doubt of committing. The Defendant claimed that his

right to a unanimous jury verdict was violated because the arson statute established two

criminal offenses and that the general verdict form did not require unanimity as to either

offense. At the conclusion of the motion for new trial hearing, the trial court found that

he was charged with one count of arson and that the instruction provided alternative

theories of guilt. The trial court found that “there’s no distinct separate acts; there’s just

one act and the reason for that. . . . [T]he evidence only indicated one offense, that there

was a burning of a cabin.” The trial court found that there was no need for an election of

offenses because the evidence did not establish that multiple offenses were committed.

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The court also found that it instructed the jury that its verdict had to be unanimous and

that the jury was presumed to have followed the court’s instructions. The trial court

denied the Defendant’s motion, and the Defendant appeals.

On appeal, the Defendant maintains that his right to a unanimous jury verdict was

violated by the general verdict form which did not distinguish between the two theories

of arson. He maintains that Tennessee Code Annotated sections 39-14-301(a)(1) and

(a)(2) of the arson statute establish distinct offenses and that a general verdict form

precluded the assurance of jury unanimity in either offense. The State responds that

arson is one offense that can be proven under alternative theories and that the general

verdict form ensured jury unanimity on his guilt of arson. We agree with the State.

The right to a jury trial protected by the Tennessee and United States Constitutions

requires that a jury’s verdict be unanimous. See State v. Kendrick, 38 S.W.3d 566, 568

(Tenn. 2001); Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (incorporating the right

to a unanimous jury verdict protected by the Sixth Amendment to the United States

Constitution into the Fourteenth Amendment’s protections applicable to the states). “[A]

defendant’s right to a unanimous verdict before imposition of conviction requires the trial

court to take precautions to ensure that the jury deliberates over the particular charged

offense, instead of assembling a ‘patchwork verdict’ based on the different offenses in

evidence.” Tidwell v. State, 922 S.W.2d 497, 501 (Tenn. 1996) (citing State v. Shelton,

851 S.W.2d 134, 137 (Tenn. 1993)). The State must generally elect facts upon which it is

relying to establish the charged offense when there is proof of multiple offenses

supporting a single charged offense. State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001).

Accordingly, “[w]hen evidence is presented of multiple offenses that would fit the

allegations of the charge, the State must elect the particular offense for which a

conviction is sought, and the trial court must instruct the jury as to the need for jury

unanimity regarding the finding of the particular offense elected.” State v. Riley

Christopher Wilburn, No. M2020-00130-CCA-R3-CD, __ S.W.3d __, 2021 WL

2554209, at *3 (Tenn. Crim. App. June 22, 2021), perm. app. denied (Tenn. Oct. 13,

2021). This requirement protects the defendant’s right to “a unanimous jury verdict by

ensuring that jurors deliberate and render a verdict on the same evidence.” Johnson, 53

S.W.3d at 631 (citing State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999)).

“‘Generally, alternative theories, mental states, modes of committing the crime, or

means by which the crime was committed may be submitted to the jury without necessity

of precautions to assure jury unanimity.’” State v. Hood, 221 S.W.3d 531, 547 (Tenn.

Crim. App. 2006) (emphasis omitted) (quoting State v. James Clayton Young, Jr., No.

01C01-9605-CC-00208, 1998 WL 258466, at *5 n.4 (Tenn. Crim. App. May 22, 1998));

see also T.C.A. § 40-13-206(a) (“When the offense may be committed by different

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forms, by different means or with different intents, the forms, means or intents may be

alleged in the same count in the alternative.”). Additionally,

Where the intent with which, the mode in, or the means by which, an act is

done are essential to the commission of the offense, and the offense may be

committed with different intents, in different modes, or by different means,

if the jury is satisfied that the act was committed with one (1) of the intents,

in one (1) of the modes, or by either of the means charged, the jury shall

convict, although uncertain as to which of the intents charged existed, or

which mode, or by which of the means charged, the act was committed.

T.C.A. § 40-18-112. “The right of jury unanimity has never required more than a general

verdict in cases where only one offense is at issue based on a single criminal occurrence.”

State v. Lemacks, 996 S.W.2d 166, 171 (Tenn. 1999).

Whether the jury’s general verdict in this case raises concerns about unanimity

depends on whether the arson statute codified in Tennessee Code Annotated section 39-

14-301 (2010) provides for a single offense or multiple offenses. “A court’s role in

construing a statute is to ascertain and give effect to legislative intent.” State v. Siliski,

238 S.W.3d 338, 362 (Tenn. Crim. App. 2007) (citations omitted). Legislative intent is

derived “from the natural and ordinary meaning of the statutory language within the

context of the entire statute without any forced or subtle construction that would extend

or limit the statute’s meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000).

When a statute’s language is clear and unambiguous, we “must apply its plain meaning in

its normal and accepted use, without a forced interpretation that would extend the

meaning of the language and, in that instance, we enforce the language without reference

to the broader statutory intent, legislative history, or other sources.” Carter v. Bell, 279

S.W.3d 560, 564 (Tenn. 2009). We will not “apply a particular interpretation to a statute

if that interpretation would yield an absurd result.” Flemming, 19 S.W.3d at 197. We

review issues of statutory construction de novo without a presumption of correctness.

State v. Edmonson, 231 S.W.3d 925, 927 (Tenn. 2007).

The arson statute at issue here provides in relevant part that “a person commits an

offense who knowingly damages any structure by means of a fire or explosion:”

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

or security interest therein; or

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

the damage or destruction or for any unlawful purpose.

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T.C.A. § 39-14-301(a) (2010). We first observe that the statute in part conditions

criminal liability for a person “who knowingly damages any structure by means of a fire

or explosion.” The unit of prosecution for arson is the number of distinct structures

burned. State v. Lewis, 958 S.W.2d 736, 738-39 (Tenn. 1997) (vacating four of the

defendant’s five convictions for arson where only a single apartment building was burned

but several apartment units within the building were destroyed). In other words, a

defendant could not be convicted of more than one offense of arson under section 39-14-

301 if no more than one structure is damaged. See id. Accordingly, subsections (a)(1)

and (a)(2) do not create multiple offenses of arson for the Defendant’s burning of a single

structure. Instead, the statute establishes one offense of arson which may be

accomplished using alternative modes.

Accepting the Defendant’s argument to the contrary would effectively require “the

State to ‘elect the facts to support elements rather than make an election of offenses,’”

when our case law does not require jury unanimity regarding the modes by which a single

crime is committed. State v. Joseph Scott Morrell, No. E2013-02431-CCA-R3-CD, 2014

WL 4980400, at *9 (Tenn. Crim. App. Oct. 7, 2014) (quoting State v. Adams, 24 S.W.3d

289, 297 (Tenn. 2000)) (emphasis in Adams). This court has previously held that the

State is not required to make an election when a statute presents alternative modes of

committing a single offense. See Lemacks, 996 S.W.2d at 171 (election of guilt by

criminal responsibility or direct responsibility not required for a single offense of DUI);

Riley Christopher Wilburn, __ S.W.3d at __, 2021 WL 2554209, at *5 (election not

required for prosecution under alternative theories of DUI per se and DUI by intoxication

for one DUI offense); Joseph Scott Morrell, 2014 WL 4980400, at *9 (“That the offense

of DUI may be committed by either driving or being in physical control of a vehicle does

not change our conclusion because the need for election is not implicated by the statutory

use of proscriptive terms in the disjunctive.”); State v. Gerry Tallant, No. W2009-00585-

CCA-R3-CD, 2011 WL 303216, at *8 (Tenn. Crim. App. Jan. 25, 2011) (prosecution of

the defendant for first degree murder under alternative theories of guilt as a principal

offender or guilt via criminal responsibility did not require more than a general verdict).

The fact that a defendant has met the criteria for prosecution under two or more theories

of an offense does not transform one offense into two.

This court has previously upheld an arson conviction in which the State presented

evidence that multiple modes were used to commit the offense. See State v. Gann, Jr.,

251 S.W.3d 446, 456 (Tenn. Crim. App. 2007). In Gann, Jr., the evidence showed that

the defendant killed the victim in a home owned by the victim’s mother and set fire to the

home. Id. The victim’s mother testified that she did not give the defendant permission to

burn her home. Id. The jury convicted the defendant of arson, and on appeal, we

affirmed the conviction on the ground that the evidence established that he burned the

home without permission of the victim’s mother and for the unlawful purpose of

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concealing his murder of the victim. Id. Similarly, the evidence in the present case

showed that the Defendant burned the cabin Mr. Coy was living in without Mr. Coy’s

permission and burned it for the purpose of intimidating or retaliating against Mr. Coy for

cooperating with law enforcement in the Defendant’s drug case. “[W]here the State

seeks to prove one crime arising from one event, we may presume that the jury’s general

verdict was unanimous.” Lemacks, 996 S.W.2d at 171. The general verdict in the

Defendant’s case sufficiently ensured jury unanimity on his guilt of arson. The jury was

presented evidence showing the Defendant burned one structure, the cabin, and the jury

returned a guilty verdict for one count of arson. Thus, the jury’s general verdict was

unanimous.

III. Restitution

The Defendant challenges the restitution order requiring him to pay $15,000 in

restitution to his nephew. Although the judgment form reflects the above restitution

amount, the Defendant failed to include the sentencing hearing transcript in the appellate

record. We note that during a hearing on a motion to withdraw and suspend restitution

which took place in August 2019, the Defendant’s counsel advised the trial court that the

Defendant “[h]ad a sentencing hearing, and at the sentencing hearing it was agreed upon

to waive the sentencing hearing and the [D]efendant and the State entered into an

agreement where he would have a four[-]year sentence and some restitution to be owed.”

“When a party seeks appellate review there is a duty to prepare a record which conveys a

fair, accurate and complete account of what transpired with respect to the issues forming

the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). The failure

to prepare an adequate record for appellate review results in waiver. Id. Thus, in the

absence of a complete record, “the appellate court must conclusively presume that the

ruling of the trial judge was correct.” State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim.

App. 1990). Because the sentencing hearing is missing from the appellate record, we

conclude that the Defendant’s challenge to the restitution has been waived. See id. The

Defendant is not entitled to relief.

CONCLUSION

Based upon the foregoing reasons, we affirm the judgment of the trial court.

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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