# State of Tennessee v. Jacquiz McBee

> Court of Criminal Appeals of Tennessee · November 9, 2022

URL: https://www.frixlaw.com/law-library/cases/8482869

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** November 9, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Jill Bartee Ayers
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

11/09/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2022

STATE OF TENNESSEE v. JACQUIZ MCBEE

Appeal from the Criminal Court for Knox County
No. 113585 Kyle A. Hixson, Criminal Court Judge
___________________________________

No. E2021-01048-CCA-R3-CD
___________________________________

Defendant, Jacquiz McBee, was convicted of first-degree premeditated murder and
received a life sentence to be served consecutively to his prior three-year sentence for
aggravated assault. On appeal, Defendant argues: that the evidence was insufficient to
support his conviction; that the trial court erred by excluding the victim and Defendant’s
minor child’s statement to a forensic interviewer; that the trial court erred by failing to
redact the words “on probation” from searches made on the internet from Defendant’s cell
phone; that the trial court erred by admitting the results of a Google search conducted by
Detective McFarland consistent with a search made by Defendant; that the trial court erred
by ordering consecutive sentencing; and that cumulative error entitles him to relief.
Following our review of the entire record and the parties’ briefs, we affirm the judgment
of the trial court.

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and JOHN W. CAMPBELL, SR., JJ., joined.

Mary Ward, Knoxville, Tennessee, for the appellant, Jacquiz McBee.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin Allen and Joanie
Stewart, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION

This case arises from the shooting death of the victim, Jessica Davis, who was
Defendant’s ex-girlfriend and mother of his four-year-old son. Defendant claimed that the
victim shot herself while they were wrestling for the gun. The Knox County Grand Jury
indicted Defendant for premeditated first-degree murder.

Trial

Michael Mays, custodian of records for the Knox County Emergency
Communications District 911, identified the recording of a 911 call and the computer-aided
dispatch (CAD) report for the call that the communications center received on April 16,
2018, at 9:16 p.m. The recording of the call was played for the jury.

During the call, Defendant told the 911 operator (“operator”) that his son’s mother
attempted to shoot him. Defendant sounded frantic and had some difficulty telling the
operator his location. He said, “I’m scared! I’m scared!” Defendant then went to a
neighbor’s residence to determine his location. When the operator asked for his name,
Defendant replied: “My name is Jacquiz.” The operator asked if Defendant was injured,
and he said, “No she tried to pull a gun out on me.” After repeatedly asking Defendant for
his location, the operator asked, “Is anybody else there?” Defendant said, “No, it’s just me
and my son.” He also told the operator that his son was four years old. Defendant
eventually gave the operator an address of “2639 Bakertown Road.” After prodding by the
operator, Defendant finally gave an apartment number of “704.” The operator then asked,
“Who pulled the gun on you?” Defendant replied:

I had my son sitting on my lap, and she was kind of playing with it.
I thought it was a BB gun. She was – kept - she kept pointing it at
me. Just playing. She was hopping then – hopping, then all of a
sudden, I heard a click and I – pow! I wrestled her to the ground and
kicked the gun away from her. We was wrestling for the gun. She
was on top of me. She ended up shooting – she pulled the trigger.
It was pointing right at her. It was pointing right f - - king at her.

Defendant identified the woman who was shot as the victim, Jessica Davis. He told
the operator, “She’s shot! She’s shot! I don’t know where on her body, [be]cause I don’t
want to see her. I don’t want to see.” The operator then asked, “She shot herself?”
Defendant replied, “Yes.” He also said that the victim was in the kitchen in Apartment
704. The operator asked, “And she did this on purpose?” To which Defendant explained,
“She was really aggressive! She was really aggressive! She had a gun in her hand. I didn’t
know – I didn’t know – I thought it was a fake gun, [be]cause it’s pink. It’s a pink colored
gun.” Defendant then identified himself as Jacquiz McBee.

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Defendant told the operator that the victim “was just talking, just talking, like, I
don’t know if she was drunk or what.” He said that when he heard the gun “click,” he
moved his son away and then “kind of wrestled [the victim] to the ground with the gun.
She ended up pulling the gun with the trigger while it was pointing towards her.”
Defendant then wailed, “Why did she have a gun? Why did she have a gun? Why?”
Defendant continued wailing, and the 911 operator attempted to console Defendant and
instructed him to stay on the line and watch for police to arrive. At one point, Defendant
exclaimed, “Oh my God! I could have been killed! I could have been dead! She could
have killed me! Oh my God!” Defendant continued wailing, and the operator attempted
to calm him and console him.

At one point during the 911 call, a child’s voice can be heard making reference to a
gun. Defendant then replied, “She had a gun? How do you know she had a gun? She
shouldn’t have had a gun around you, Baby.” Defendant continued to wail intermittently
and then exclaimed, “What’s she got a gun for?” He later said, “Why would she try to kill
me?”

Waynesha Murphy testified that she and the victim were best friends, and they spoke
“almost daily.” She said that the victim would have been twenty-five years old at the time
of trial. Ms. Murphy testified that the victim and Defendant began dating when the victim
was in eighth grade. She said that she began to disapprove of the victim’s relationship with
Defendant approximately two years prior to the victim’s death, and she expressed this to
the victim. Ms. Murphy noted that she lived with victim and Defendant at one point. She
said that the victim and Defendant “broke up” in 2017, and the victim had a relationship
with Nicholas Smith at the time of the victim’s death in 2018. Ms. Murphy thought that
the victim and Mr. Smith had been dating for approximately eight months to one year at
the time.

Ms. Murphy testified that Mr. Smith was older than the victim, and they had a good
relationship. She said that the victim and Mr. Smith argued “[l]ike any normal couple,”
but “it was never abusive or physical.” Ms. Murphy denied that Mr. Smith ever put a gun
to the victim’s head or that the victim feared or had reason to fear that someone would
harm or kill her. She had never known the victim to possess a gun or express any reason
to harm herself. Ms. Murphy testified that the victim and Defendant had a son, L.M.,1 who
was three or four years old at the time of the victim’s death. The victim and L.M. lived at
2639 Bakertown Road, Apartment 704, and Ms. Murphy had been there many times. She
noted that the victim and Mr. Smith mostly stayed at his house when they were together.

Ms. Murphy testified that the victim contacted her sometime between 3:00 and 4:00
p.m. on April 16, 2018, and “was a little nervous about seeing [Defendant].” Ms. Murphy

1
Because it is the policy of this court to protect the identity of minors, this witness will be
referenced by initials.

-3-
said that Defendant last saw L.M. in early March on the child’s birthday, and he “came and
seen [L.M.] for like five minutes and took his tablet and gave him two toy guns.” On the
day of the shooting, Ms. Murphy told the victim to let Defendant see L.M. and to “[j]ust
relax, you know.” She noted that the victim had custody of L.M. and did not like Defendant
having the child around other women, including Defendant’s current girlfriend, Leah, with
whom the victim “had trouble.” Ms. Murphy testified that the victim had been upset with
comments that Defendant’s girlfriends had made on social media “disrespecting” the
victim as L.M.’s mother. She said that the victim had an issue with Leah posting pictures
of herself with L.M. on social media. Ms. Murphy testified that although the victim had
custody of L.M., Defendant “was going to try to put his self on child support.” She said,
“I honestly just think that he just wanted to paint a type of picture of himself because he
wasn’t financially providing for [L.M.]. Nicholas [Smith] was.”

Ms. Murphy testified that the victim was a happy person, and Ms. Murphy had no
reason to think the victim would take her own life. When she saw the victim on the day of
the shooting, “[i]t was never anything about her hurting herself or anything physical or
anything like that.” Ms. Murphy testified that she arrived at the victim’s apartment at
approximately 5:30 to 6:00 p.m. that day. The victim cooked some ribs at Ms. Murphy’s
request, and the two drank Crown Royal. Ms. Murphy explained that she and the victim
“only took like a shot or two,” and Ms. Murphy left before Defendant arrived because she
did not “get along with him and he was just coming to see his son.” She planned to return
later to get the food. Ms. Murphy testified that Defendant “was just going to come by, see
[L.M.], give him back his tablet and just see him for a while.” The victim was supposed
to call Ms. Murphy when Defendant left to let her know when to return. Ms. Murphy
testified that the victim would never have had a gun around L.M. and noted that the victim
had thrown away the toy guns that Defendant bought L.M. for his birthday in March of
2018.

On cross-examination, Ms. Murphy testified that she thought the victim had two
shots of Crown Royal with Coke. She said that the victim appeared to be sober when Ms.
Murphy arrived. She was unaware that the victim’s blood alcohol content was .16. Ms.
Murphy testified that she left the victim’s apartment after an hour because Defendant was
coming over. She said that the victim and Defendant’s girlfriend, Leah, did not like each
other, and she was not aware that the victim had made a video threatening Leah. Ms.
Murphy was aware that the victim had once texted Defendant that she was fearful of Mr.
Smith. However, Ms. Murphy said that the victim was drunk and did something “stupid”
when she sent the text and lied about the argument.

Nicholas Smith testified that he and the victim dated for approximately one and a
half years, and he helped her with her problems and with L.M. He said that they loved
each other, and he supported her both financially and emotionally. The victim also
confided in him about certain things. Mr. Smith testified that there were no physical
altercations between him and the victim, and he never possessed a gun around her. He also

-4-
said that he never held a gun to her head, and she did not own a gun. Mr. Murphy testified
that the victim did not allow guns around L.M., including toy ones.

Mr. Smith testified that the victim was “easy going” but had some “drama” with one
of Defendant’s girlfriends. He said that the victim was a very positive person, and he never
had any concerns that she would commit suicide. Mr. Smith testified that he and the victim
provided for L.M. She received food stamps, and Mr. Smith provided the rest, such as
clothing, underwear, and “[t]ooth brushes and stuff.”

Mr. Smith testified that he had never met Defendant in person, but he was aware
that Defendant was supposed to pick up L.M. on April 16, 2018. The victim had been with
Mr. Smith earlier that day at his house, and he took her home after 4:00 p.m. to wait for
Defendant. Mr. Smith testified that he had to meet a heating/cooling repair person, and he
was going to return to the victim’s apartment later because she planned to cook. Her friend
later called and told him what had happened but not that the victim had died. Mr. Smith
learned of the victim’s death when he arrived at her apartment. Mr. Smith testified that he
did not give a gun to the victim. He said that “she don’t play with that gun stuff, especially
not around her child.” Mr. Smith further testified that the victim was “too scared to lose
[L.M.] to something dumb like that. She ain’t like guns at all around him.”

On cross-examination, Mr. Smith testified that he was unaware that the victim was
on anxiety medication. He said that his arguments with the victim never became physical,
and he was not aware that she had texted Defendant one time and said that they had an
argument. Mr. Smith testified that he did not have any drinks with the victim before her
death.

Lieutenant Jason Lubenski of the Knox County Sheriff’s Office (“KCSO”) testified
that shortly after 9:00 p.m. on April 16, 2018, he responded to a shooting on Bakertown
Road. Other officers, including Deputies Parker Hall and Mike McClain, also responded.
Lieutenant Lubenski testified that they initially went to Apartment 701 but were then
directed to Apartment 704 by Defendant who was standing outside of the apartment and
seemed upset and distraught.

Footage from Deputy McClain’s body camera was played for the jury. As he
approached the door to Apartment 704, a small child is seen briefly in the video as an
officer is heard saying, “Well can you take her over there please?” Defendant then
approaches with [L.M.] at his side and says, “Does she have a f - -king gun and she was
trying to shoot.” [L.M.] says, “My mommy dead.” To which Defendant replies, “Shut up,
[L.M.]. You don’t know that.” Deputy McClain tells Defendant, “Well, you probably
don’t want to have your – this conversation in front of everyone. Okay?” With [L.M.] still
by his side, Defendant speaks into his cell phone and says, “Baby, I’m at J.C.’s house. J.C.
was kind of aggressive. I don’t know what’s going on. I think she was probably drinking.
She had a pink – she got a pink gun. Police are here. Maybe she shot herself.” Deputy

-5-
McClain asks Defendant to “come over here for a minute” and then asks him what
happened. Defendant says:

I had my son sitting on my lap. She came on first. I – I thought it
was a toy gun. It was a pink gun. Then I was – she was playing with
it. She was – I was recording her. She was like real aggressive,
talking crazy. I heard a click noise. I said, “What the hell you
doing?” I jumped towards her with the gun – I jumped towards her.
I tried to get the gun away from her. But she’s – she’s strong. She
trying to f- -cking get me off of her. And all of a sudden the gun just
went off. It just went off. But she had the gun in her hand.

Deputy McClain tells Defendant that one of the other officers will take [L.M.] to a
patrol car and “turn some cartoon on for him.” Defendant then says, “I’ve never seen this
in my life.” Deputy McClain replies, “Not many people have seen this in their life. Now,
I understand that your upset, and that’s completely understandable. Okay?” Defendant
then exclaims, “Why she got a gun? Why she got a gun? She probably would have killed
me!” Deputy McClain asks Defendant about his relationship with the victim and why he
was at her apartment, and Defendant answers his questions. Deputy McClain then asks,
“Was she just like showing you the gun?” Defendant replies:

No, she just came upstairs with the gun and I seen the gun. And all
of a sudden I heard a click noise. I said, ‘Jessie, what the hell are
you doing? And Jessie, like she – got up to jump towards her, ‘cause
I thought it was just a toy gun. And I jumped towards her and tried
to get the gun away from her and she just f - -cking pulled the trigger.

Defendant then asks, “She’s okay. Right?” Deputy McClain replies, I’ve not even been
in the house.” He offers to put Defendant in his patrol car where its warm because “it’s
forty degree out here” and explains that Defendant is not under arrest. Defendant tells
Deputy McClain that he has a car and needs to call his mother. However, Deputy McClain
explains that “with everything we got going on right now, I can’t let you make any phone
calls.” Defendant offers Deputy McClain his phone and asks him to “at least tell my
girlfriend what’s going on?” Deputy McClain asks for information to contact Defendant’s
girlfriend, which Defendant provides. The body camera footage ends with Deputy
McClain patting down Defendant and placing him in the patrol car.

Zachery Helton testified that he purchased a pink Cobra .380 caliber pistol in 2017
from Midsouth Pawn. He decided to sell the gun in the Spring of 2018 and met the buyer
at the “Oak Ridge, Lenoir City exit.” They were on the left-hand side of the “Love
McDonald’s gas station.” Mr. Helton thought that he sold the gun for $200 in cash, but he
did not remember the buyer’s name. He said that the police in this case took his phone to

-6-
find the buyer’s contact number. Mr. Helton thought that the contact number in his phone
associated with “Black Cobra 200” belonged to the buyer.

Demarcus O’Neal identified the pink pistol found at the scene of the shooting and
said, “I’ve seen it, yeah.” He spoke with Detective Keith McFarland and other detectives
about the gun in 2018. Mr. O’Neal said he saw the gun listed for sale on Armslist and
purchased it for his girlfriend in March of 2018. He said that his girlfriend did not want
the gun, so he decided to “get rid of it,” and sold it “a couple of weeks after [he] purchased
it.” Mr. O’Neal identified Defendant from a “photo spread” in 2018 and at trial as the
person who bought the gun from him.

Deputy Shaker Naser, a member of the Cyber Investigations Unit of the KCSO,
performed a forensic analysis on Defendant’s iPhone. He was able to view the web history
for websites visited from the phone, and some deleted files were recovered. Detective
Naser testified that the phone had web history that showed deleted entries for “Armslist,
Knoxville Handgun Classified[.]”

Detective Keith McFarland of the KCSO, Major Crimes Unit, responded to the
scene on Bakertown Road approximately thirty to forty-five minutes after the first patrol
officer arrived. He said that as part of the investigation, gunshot residue kits were collected,
fingerprints were lifted, and a DNA analysis was performed on the gun. The scene was
also photographed and videoed, and a spent shell casing and a magazine clip were found
near the victim’s body. Detective McFarland testified that Defendant’s DNA and
fingerprints were taken to compare with that found on the gun, but those tests were
negative. He was not surprised by the results and noted that Defendant admitted to
touching the gun. Detective McFarland testified that an ATF trace on the gun came back
to Mr. Helton, who was cooperative about who had purchased the gun. Through Mr.
Helton’s phone, Detective McFarland discovered that Mr. O’Neal purchased the gun from
Mr. Helton.

Detective McFarland interviewed Defendant on the night of the shooting and
advised him of his Miranda rights. Defendant went home after the shooting but was
arrested several weeks later. Detective McFarland attended the victim’s autopsy and spoke
with the medical examiner.

Detective McFarland testified that Defendant gave consent for his cell phone to be
searched, and Detective McFarland, with the assistance of the Cyber Investigations Unit,
examined it. He also examined the victim’s and Mr. Helton’s phones. Mr. Helton’s phone
contained interactions between him and Mr. O’Neal. Mr. O’Neal was listed in Mr.
Helton’s phone as “Black Cobra 200.” Mr. O’Neal was listed in Defendant’s phone as
“Tool Guy.”

-7-
Detective McFarland identified the “timeline from [Defendant’s] phone. Looks like
from 4/16/2018.” There were website searches on the phone for topics such as “What does
you reap what you sow mean in the Bible”; “Man struggles for his life”; “Limits on self-
defense”; and “Probation, stand your ground, peaceful journey.” An “extraction report” of
the phone indicated that internet searches had been made for items including “man
struggles for life”; “reap what you sow biblical meaning”; “killing someone in self-defense
while on probation”; and “is killing ever justified on probation.” The “web history” taken
from Defendant’s phone showed Google searches on April 16, 2018, with titles such as
“reap what you sow biblical meaning”; limits on self-defense”; and “probation, stand your
ground, peaceful journey, etc.”

Detective McFarland testified that the top three results for a Google search on
“killing someone in self-defense while on probation” included an article from
Learnaboutguns.com, entitled “Convicted Felon Faces Charges for Defending Self Against
Violent Home Invader”; an article from Lawyers.com, entitled “Limits on Self-Defense”;
and an article from Texasschlforum.com, entitled “Probation, stand your ground, peaceful
journey . . .etc.” Detective McFarland testified that the “cookies” report from Defendant’s
phone indicated that the articles were accessed on the phone.

A recording of Defendant’s interview with Detective McFarland during the early
morning hours of April 17, 2018, was admitted as an exhibit and played for the jury.
Defendant told Detective McFarland that before the shooting, he was sitting on the couch
in the living room with L.M. sitting on his lap, and the victim was walking back and forth
and talking aggressively. Defendant claimed that he ignored the victim because he was
there to spend time with L.M. He said that he and the victim “talked a little, but nothing –
like trying to catch up on each other.” Defendant told Detective McFarland that the victim
walked back into the kitchen, and he heard L.M. say, “Look, Daddy. Mommy has a gun.”
Defendant described the weapon as a “pink .22,” and he “thought it was a toy gun.” He
said that the victim pointed the gun, but she was smiling so he thought that she was
“playing.” Defendant told Detective McFarland that he heard the gun “click,” and he
pushed L.M. into the living room toward the door. He then approached the victim and
pushed her back into the kitchen up against the wall. Defendant said that the victim
“somehow pushed [him] away,” and as he pushed back, “[t]hat’s when [he] heard the gun
go off.”

Detective McFarland asked if the victim was employed, and Defendant said, “She’s
never worked a day in her life.” When asked how she paid the bills, Defendant responded,
“Well, I try to give her money for the rent and she got government assistance or something
like that.” He said that the victim had stopped him from seeing L.M. and taking him places.
Defendant told Detective McFarland that “[s]he said the only way I could see [L.M.] is to
place myself on child support.” He said he and the victim broke up because she got
intoxicated at a party and became violent as they were driving home causing Defendant to
crash his car into another car and a dumpster. Defendant said that a witness to the crash

-8-
came and pulled the victim off of him. He noted that the victim “was real bad with
alcohol.” Defendant told Detective McFarland that as he was taking the victim home after
the crash in his damaged vehicle, he had to pull over and calm the victim down. A police
officer arrived and offered to drive her home.

At one point, during a pause in the interview, Defendant said, “She had no reason
to use a gun. Nobody want[ed] to hurt her.” Detective McFarland asked Defendant if the
victim used drugs, and Defendant said, “[A]t one point she was smoking pot.” He also said
that she met Mr. Smith, who was “like forty years old,” through a friend that sold drugs.
Defendant told Detective McFarland that on one occasion the victim told him that Mr.
Smith put a “gun to her head and threatened to kill her.” However, he said that the victim
stayed with Mr. Smith because he was “helping her, like, moneywise.” Defendant told
Detective McFarland that he once called the Department of Children’s Services (“DCS”)
after the victim texted him for help. He said that he was worried because “this guy may be
trying to hurt her again because it’s not the first time, not the second time.” Defendant also
said that he called police and asked them to send someone to help the victim, but Defendant
did not know where the victim and Mr. Smith lived, so the police could not do anything.2

Defendant asserted to Detective McFarland that he reported incidents involving the
victim to police on multiple occasions. Detective McFarland testified that he attempted to
locate police reports on the incidents, but he found “[o]nly one that he mentioned.” He did
not find any reports or calls for service for any incidents between the victim and Mr. Smith.
Detective McFarland testified that “at some point during [his] investigation, [he] was
alerted about the presence of a letter that had emanated from the Knox County Jail[.]” He
said that the letter consisted of four pages handwritten in pencil, “[f]irst being addressed to
Keenan and the second being addressed to Keenan and Keelan, the third to Leah and the
fourth to Marcus.” The return address for the letter reflected “Ryan Stansberry” at the
detention facility at 5001 Maloneyville Road. Detective McFarland testified that he
obtained handwriting samples for Defendant and sent the letter to the Tennessee Bureau of
Investigation (“TBI”) for analysis.

The letter, admitted at trial and addressed to “Keenan and Keelan,” asked them

to find somebody to act as a witness of hearing an argument or some
wrestling for me! Who ever you find must act as they don’t know
me and must not be on my [Facebook].

2
During the interview, Defendant told Detective McFarland that he was on probation. The
interview continued, but the recording had no sound for the next twenty seconds during which Defendant
apparently talked about the reason for being on probation.

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Who ever must make it seem like they were walking by [the
victim’s] ap[artment] that night and heard a gun shot from the
direction of her ap[artment] when they got a distance.

Witness need to say they remember walking by hearing a man
screaming and saying “Please drop it [victim]. Please fu[- -]king
drop it” and also heard her screaming “You, you, you.” (repeatedly)
over his voice.

Witness walked a distance away hearing a gun shot as they got in the
car!!

Incident happened April 16 or 17th around 9ish in Nature Cove in
Baker Town.

I had Tabitha in mine [sic] or Daniel Thomas. Tabitha may do if you
talk to her. Tell her I asked if she could.

If you find someone tell Mama to contact my lawyer and tell her she
know someone that may have heard something regarding my case.

Who ever just not let anyone trick them saying I know them.

She may also see if they will give a statement at trial. This will really
help me.

Just in case Google map her ap[artment] in Nature Cove so they can
prove they know the ap[artment] and why they were near.

They could say they bought something from “Letgo” from someone
there.

I’m trusting y’all with this.

Defendant asked “Marcus” to reset his Gmail password “asap.” He said, “I also need to
know if the searches in the Google account can be edited. . . Soon as you can figure out a
[password] give it to Keenan to edit search they fabricated in my phone . . .or you can edit
them for me.” Defendant also asked Keenan to “edit or delete certain searches made in
April 16 or 17[.]” He instructed Keenan to “keep the search I need regarding a TN show”
called “how to get away with murder.”

On cross-examination, Detective McFarland testified that Defendant’s DNA was
not found on the magazine clip from the gun, and Defendant’s fingerprints were not found

- 10 -
on the gun. He agreed that while gunshot residue was found on the victim’s hands, none
was found on Defendant’s hands. Detective McFarland said that he did not notice any
blood spatter on Defendant’s clothing. He agreed that Defendant was not arrested until
nearly three months after the victim’s death.

Special Agent Russell Davis, a forensic scientist with the TBI, testified as an expert
in the microanalysis of gunshot residue. He prepared a laboratory microanalysis report in
this case. Special Agent Davis testified that gunshot residue results from gases, metals,
and other materials that scatter from a weapon when its fired, which may collect on a
person’s skin and clothing. He explained that “a gun is designed to fire and push a . . .
bullet down the barrel of the weapon. So, most of this material is going to go down range.
However, the weapon is not gas tight.” Special Agent Davis testified that with a semi-
automatic weapon, such as the one used in this case, “[t]he action of the weapon is going
to kick out that cartridge case and allow some of this material to escape in the immediate
vicinity of the person and the person’s hands.”

When asked about the presence of gunshot residue on the victim’s hands, Special
Agent Davis responded, “It’s been my experience that generally when someone has been
shot at close range from any particular weapon, it is not unusual to find this material on the
person’s hands.” Concerning the lack of gunshot residue on Defendant’s hands, Special
Agent Davis testified:

[T]here’s a couple of reasons why someone may not have residue on
their hands. The science does not help us in this instance. The
possibility is that the person was not around a weapon when it fired.
The other possibility is this material has come off of the hands. It’s
trapped in the oils on our hands. Our hands regenerate this oil. Over
time the material is going to come off.

If you wash your hands, it takes the oil and the residue with it. If
you’re just doing things, the oils on your hands are going to slowly
start coming off. So not finding gunshot residue doesn’t tell me
anything except that I didn’t find gunshot primer residue.

The parties stipulated at trial that Special Agent Lucas Riley, a forensic scientist
with the TBI, would have testified that no latent fingerprint ridge detail was found on the
gun, magazine clip, cartridges or cartridge case recovered in this case. The parties further
stipulated that Special Agent Greg Fort, also a forensic scientist with the TBI, would have
testified that “he tested the known blood standard from [the victim] and the buccal swabs
known standard from [Defendant] against the fingernail scrapings of [the victim] and pistol
and magazine from the kitchen floor. With regard to that, the results, the DNA profile was
not able to be obtained.” Special Agent Fort would have also testified that there was a

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mixture of DNA on the gun that was consistent with at least three individuals, including
one male.

Finally, the parties stipulated that Special Agent Alex Broadhag would have
testified at trial as an expert in firearms identification. He would have testified that he
examined the gun, magazine clip, and the cartridge casing recovered from the scene as well
as the bullet recovered from the victim’s body. Special Agent Broadhag determined that
the gun fired the bullet recovered from the victim’s body, and it ejected the cartridge casing.
“Additionally, . . .[Special] Agent Broadhag also created test patterns at 3, 6, 12 and 18
inches that were then forwarded to the Knox County Medical Examiner with this firearm.”

Deputy Christy Williams of the KCSO testified that she was helping out in the mail
department of the Knox County Jail in March of 2019. She identified a letter with Ryan
Stansberry as the sender which was returned to the jail because it was undeliverable to the
intended recipient. Deputy Williams testified that when jail personnel attempted to return
the letter to Mr. Stansberry, he refused delivery. The letter was eventually forwarded to
the District Attorney General’s Office.

Corporal Frank Nauss of the KCSO, Corrections Division, testified that Deputy
Williams brought the letter to him, and he opened it in an attempt to determine who sent it.
He testified that at the time the letter was received, Defendant and Mr. Stansberry were
housed in the same “pod” of cells with one cell in between the two. Corporal Nauss
testified that Defendant referred to himself in the letter. The letter was turned over to
investigators.

Deputy Travis Oldham, a shift commander at the Knox County Jail, testified that he
searched Defendant’s cell in October of 2020 and discovered a handwritten list of names
and phone numbers which Deputy Oldham scanned to his email. He noted that Defendant
had no cellmate at the time. Approximately one week later, Deputy Oldham asked
Defendant for the original copy of the list. He testified, “At first he was going to hand it
over, and then he thought it, it was fishy[.]” Deputy Oldham testified that Defendant said,
“‘Let me call my attorney first. This doesn’t seem right,’ something in that regard.” He
then told Defendant, “It’s not, it’s not a legal piece of paper. There’s no need to call your
attorney.” Deputy Oldham testified that Defendant said, “If you guys want this, you’re
going to have to retrieve it from the toilet,” and Defendant flushed the list before Deputy
Oldham could get into the cell.

Ryan Stansberry testified that he was incarcerated in the Knox County Jail in March
of 2019, and he recalled being housed near Defendant “at some point.” He said that they
talked every day. Mr. Stansberry denied discussing any letters with Defendant, and he
denied writing “any letters out from the penal farm to Keelan, Keenan, Marcus or Leah.”
When shown the letter introduced at trial with his name listed in the return address, Mr.
Stansberry denied sending the letter or that it was written in his handwriting.

- 12 -
Larry Miller, professor and chairman of the Department of Criminal Justice at East
Tennessee State University and “director of the graduate program of forensic document
examination,” testified “as an expert in forensic document examination.” He said that there
“was a six-page handwritten letter that was in question, and also . . . some known specimens
of [Defendant’s] known handwriting.”3 Dr. Miller concluded, “My opinion is the person
who wrote the known specimens that I used for comparison also wrote the six-page letter.”

Dr. Amy Hawes, Deputy State Medical Examiner with the Tennessee Office of the
State Chief Medical Examiner, performed an autopsy on the victim on April 17, 2018. She
testified that the victim had a gunshot wound to her chin, and “there were no other
significant trauma or injuries.” Dr. Hawes opined that the bullet traveled in a path from
front to back with “injuries of her mandible which is the bottom jaw bone, the larynx which
is the voice box, and the spine. A medium caliber bullet was recovered. Dr. Hawes
testified that the victim had a few minor injuries, including a small bruise on her left upper
arm, a larger bruise on her right thigh, and a bruise to the right side of her scalp. The
bruises on the victim’s arm and thigh were yellowish-brown, indicating to Dr. Hawes “that
they are older, meaning they were likely already there at the time of her death.”

Concerning how quickly the victim may have died, Dr. Hawes testified:

It would have been [ ], “Fairly quickly,” not immediate. And the
reason I am somewhat hesitant to say exactly how long is because
her larynx which is where your - - your air comes into your lungs,
it’s part of your airway would come through, that would make it very
difficult for her to breathe, and also her spine was injured.

So it’s difficult for me to say that it was immediate, but I would
expect she would have dead - - been dead within a very short period
of time.

Dr. Hawes testified that the trajectory of the bullet in the victim’s body went from “front
to back” and lodged in her spine. She further testified: “So that tells me that the bullet went
directly from front to back. So had her head been turned, that would have also mean[t] that
the gun at the time it was fired would have also had to be at the same angle.” Dr. Hawes
agreed that she could not tell “any positional angle, the way the head swivels or the way,
the way her head would have been positioned when she was shot[.]” Dr. Hawes concluded
that the victim’s “cause of death is a gunshot wound to the head. And the manner of death
is homicide.”

3
Other witnesses referred to the letter as four pages. Two of the pages had something also written
on the back.

- 13 -
Dr. Hawes then testified concerning “soot and gunpowder stippling” in describing
the appearance of a wound on the skin. She said, “[A]s a medical examiner all I can say is
there’s gunpowder stippling there or not, and if it is there, it tells me it was a couple of
inches up to a couple of feet.” Dr. Hawes noted that the firearms examiner in this case
tested the gun to determine the stippling patterns from 3, 6, 12, and 18 inches. In comparing
those patterns, Dr. Hawes concluded that “it[’]s closest to the test fire pattern of about 12
inches.”

On cross-examination, Dr. Hawes agreed that “most suicidal gunshot wounds are at
contact range.” She disagreed with defense counsel’s assertion that “that’s what we have
here, is contact range.” Dr. Hawes testified, “What we have here is intermediate range.”
She further said, “I have no indication, and there’s been no evidence provided to me that
would indicate that this wound was self-inflicted.”

Defendant testified that he met the victim when he was in the eighth grade, and they
dated until March of 2017. Their son, L.M. was born in 2014. Defendant testified that he
dated someone named “Kimber” for a short period time after he and the victim split up in
2017, and he had a relationship with Leah Vasquez, beginning in early 2018. He said that
the victim had an “on and off” relationship with Nicholas Smith. Defendant testified that
during the period of time in early December 2017 until the time of the victim’s death, she
“emotionally wanted physical attention, but I couldn’t do physical attention with her just -
- I was in a relationship, so.”

Defendant testified that the victim would get upset if she thought he was looking at
another woman. He noted that the victim did not like Ms. Vasquez because Ms. Vasquez
went to Ihop with Defendant and L.M., and they took a photo that Ms. Vasquez posted on
her wallpaper on Facebook. Defendant testified, “And I told her, ‘I wouldn’t post that.’
She said ‘Why?’ I said, ‘Because it may start an issue.’” He said that Ms. Vasquez then
began receiving text messages, voice mails, and calls from the victim.

Defendant testified that the victim discussed her relationship with Mr. Smith with
him many times. He said that the victim indicated that she was with Mr. Smith for the
“financial stability.” Defendant testified that the victim called him once about an incident
where “she had some type of fight with [Mr. Smith] and he put a gun to her head and
wouldn’t let her leave on several occasions.” He said that L.M. was present at the time.
Defendant testified that the victim said that “she thought he was going to blow her head off
with a shotgun that he had at his location.” He said that the victim sent him text messages
that read, “Help, please help, please.” Defendant testified that he asked the victim for her
location, which she said that she had sent twice, but the location “never came through.”
He also said that the victim had to call a taxi. Defendant testified that he called 911 for
help but the operator said that nothing could be done without knowing the victim’s location.
He said that the victim later sent him photographs of herself with “strangle marks around

- 14 -
her neck.” Defendant said that the victim was fearful of Mr. Smith, and she told Defendant
to be fearful of him as well.

Defendant testified that he contacted DCS because he was concerned about L.M.’s
safety. He said, “I started to seek custody of [L.M.] because I don’t want my son around
that bulls[ ]t.” Defendant said that he and the victim did not have a visitation schedule for
him to see L.M., and he said that she stopped allowing him to see L.M. in December of
2017. Defendant testified, “I put myself on child support before she even found out that I
really went to go put myself on child support.” Defendant testified that there was an
upcoming child support hearing scheduled at the time of the victim’s death that Defendant
believed “could have been for the custody.” He agreed that he was trying to get custody
of L.M. Defendant testified that the victim eventually allowed him to see L.M., and he
bought the victim the pink Cobra pistol from Mr. O’Neal for her protection. Defendant
testified that he bought the gun on March 26 or 27, 2018, and he delivered it to the victim
at her mother’s house. He admitted that he initially lied about the gun to Detective
McFarland because he was “scared,” and he was on probation at the time and not supposed
to be around any guns.

Defendant testified that on the day of the shooting, he made plans with the victim
to see L.M. after work. They agreed that Defendant would go over to the victim’s
apartment at “probably 8:00 maybe.” Defendant testified that when he got to the
apartment, the victim was at the door with L.M. standing in front of her. He said that he
began “hugging on” L.M., and he gave the victim a hug too. Defendant testified that the
victim hugged him back, grabbed his butt, and then walked downstairs. He said that the
victim came back upstairs, and everything seemed fine until “she started mentioning
relationships and talking about how I’m disrespectful.”

Defendant agreed that he took several videos of the interactions between him and
the victim that day because “I knew if I were to bring it to court during the child custody
so they can see or get a visual of how our relationship was and the condition, circumstances
of how [L.M.] was living.” Defendant testified that before he started the video, the victim
told him that she loved him and wanted to “make it work.” She also complained about
Defendant being in a serious relationship and began ranting that he needed to “put [his]
bitch in check.” Defendant said that the victim also began talking about child support and
told him that he should “just try to stay in [L.M.’s] life and just be there when she would
allow [Defendant] to see him.”

When asked if the victim seemed to be under the influence of anything that night,
Defendant said that he could not tell and that she did not seem any different than usual and
that “[i]t was just natural, it was just natural.” He noted that the victim took medicine for
anxiety and depression because he had taken her to Cherokee Health System in the past to
pick it up. Defendant testified that the victim would sometimes get mad at him and say,
“You make me want to kill myself.”

- 15 -
Defendant testified that before the shooting, he was sitting on the couch with L.M.
and trying to use his Apple Watch to “Facetime” with Ms. Vasquez so that she could see
L.M. He said that the victim was standing in front of him by the bathroom door “just going
back and forth. Then I really started ignoring her. Then she started talking about ‘I don’t
care you - - they’re not going to let you get custody of my son because,’ you know, just
basically making me - - just trying to make me feel bad, I guess.” Defendant testified that
the victim was begging him to see L.M. and to pick him up and spend time with him.

Defendant testified that L.M. was sitting on his leg, and they were watching
television while L.M. was trying to get his cell phone. Defendant said that he was also
texting Ms. Vasquez to let her know that he was getting ready to leave. He asserted that
L.M. then said, “Look, Daddy, Mommy has a gun.” Defendant testified that the victim
was in the kitchen, and he “didn’t pay her no mind” at first, but then he heard “like a click
noise.” He said that he pushed L.M. and told him to “run.” Defendant testified that he ran
toward the victim and grabbed her arms, pushing her back against the wall. He said, “I
guess whenever she hit the wall, the gun came in a weird direction. It was a weird direction
that the gun was pointing. It wasn’t how you would normally handle a gun, the way that
gun was in her hand.”

Defendant testified that he tried to hold the victim, but she pushed off the wall, and
as they struggled, he pleaded with the victim to drop the gun. He said that the victim kept
repeating “You, you, you, you.” Defendant testified that L.M. was “pulling his hair
because he sees what’s going on and then a shot goes off.” Defendant testified, “[A]s soon
as the shot goes off, I jumped back from her. The gun dropped on the ground from her
hand and she like bent down towards the gun like she was about to pick it up.” He said
that he “kind of kicked the gun a little bit from out of her reach” as he ran toward L.M.
Defendant testified that he did not fire the gun or have control of it. He admitted to later
taking the gun from the victim’s right side to “dismantle it.”

Defendant testified that he ran downstairs and called “police” and then checked
himself to make sure that he was not injured. He then ran upstairs to see if he could hear
anything from the victim. Defendant testified that he could see the victim’s feet as he got
near the couch and then ran back downstairs “because eventually I you know, just
suspected that she was injured.” Defendant said that he eventually went to a neighbor’s
house while still on the phone with the 911 operator because he did not know the victim’s
address.

On cross-examination, Defendant testified that many of the unknown calls on his
cell phone were from the victim because she would “spoof” her cell phone number to call
him after he blocked her number. He also claimed that the victim changed her original cell
phone number to another one because he gave her original number to DCS. Defendant
testified that he and the victim had an extensive text message history. He said that there
were incidents between the victim and Mr. Smith that caused him alarm, including an

- 16 -
incident where Mr. Smith placed a gun to the victim’s head. Defendant said that because
of the incidents with Mr. Smith, the latest being in February of 2018, he purchased a gun
for the victim at her request. He agreed that his text messages with the victim consisted of
bickering back and forth about L.M. Defendant said that he was concerned that the victim
had L.M. around during the incidents with Mr. Smith. He did not know whether there was
a text message on his phone about Mr. Smith pointing a gun at the victim’s head.
Defendant claimed that the victim told him about the gun incident when she called him
from one of the unknown numbers. He acknowledged that there were no text messages
about him buying the victim a gun.

Defendant agreed that he made several searches on Armslist.com on March 22,
2018, and he deleted the searches because he did not want anything “negative like that” on
his phone. Concerning his search history, Defendant testified: “The searches were
referencing a TV show, and it had a familiar - - a legal matter that I had second-hand
knowledge of that would expose principles, the structural principles of law, case law that
would indicate the possibility of a TV show using fake law.” Defendant admitted that he
searched firearms, and purchased a gun on March 26 or 27, 2018. He said that he did not
have a reason to buy the gun through legitimate means, and he met Mr. O’Neal and
purchased it with cash. He claimed that he did not buy any ammunition for the gun.
Defendant asserted that his only reason for purchasing the gun was to give it to the victim
to “guarantee the safety of [Defendant’s] son,” even though he claimed that the victim was
a “drunk,” suffered from anxiety and depression, and schizophrenia and on medication,
which she sometimes failed to take. Defendant did not recall if the victim ever got upset
with him for buying L.M. toy guns.

Defendant also agreed that he entered a search on his phone for “Killing someone
in self-defense while on probation,” and he entered the other searches that were deleted.
He denied spending a lot of time on the articles that he accessed an hour-and-a-half before
the victim was killed. He said, “I glanced at it to look for structural principles of law.”
Defendant testified that he did not learn anything, and “[t]hat’s why there was other
searches in my phone that was not offered as my proof, that would state proof that this TV
show uses fake law and facts.” He claimed that someone manipulated the information on
his phone and that the other searches he made contemporaneous with those admitted at trial
would have shown that he was looking at a television show, not planning a murder.
Defendant testified that he deleted any web history that reflected negatively on him because
he never locked his cell phone, and anyone could access it.

Defendant agreed that he had never paid child support for L.M. and that he was set
to start paying support on May 23, 2018. He also agreed that he and the victim were in a
fight for custody of the child and that the victim had served him with a child support
petition. Defendant testified that he asked to “place [himself] on child support” in order to
get custody of L.M. Defendant testified that he was served with the child support petition
prior to buying the gun. He said that he took the gun to the victim’s mother’s house on

- 17 -
March 27, 2018, along with some shirts for L.M. He claimed that one of the conditions
that the victim gave him for seeing L.M. was the purchase of the gun. Defendant agreed
that there was a period of time prior to that when the victim did not allow him to see L.M.,
including at Christmas and on Father’s Day. However, this did not upset him “because
[he] knew that [he] was going to get custody of him.” Defendant agreed that he lied during
the 911 call and to police, when he asked why the victim had a gun, until Detective
McFarland confronted him with information that Defendant had purchased the gun from
Mr. O’Neal.

Defendant agreed that he was videoing the victim prior to the shooting. He stopped
recording at 9:02 p.m., and then placed a call to 911 at 9:06. He claimed that he stopped
recording because his cell phone “went dead.” He then said that the phone was at three
percent before the fourteen-minute 911 call.4 Defendant testified that the victim initially
pointed the gun at him, and he moved out of the way and then ran toward her. He said that
he grabbed both of her arms in order to get the gun and pushed her back against the wall.
Defendant testified that the gun was in the victim’s right hand, and she was “putting her
hands back and forth behind her head and over her head trying to stop [him] from getting
access to the gun.” He said that he continued holding the victim against the wall by her
“biceps” and scuffling with her. Defendant testified that at one point, the victim pushed
off the wall and pushed him back. He denied that they fell to the ground, even though that
is what he told the 911 operator. Defendant testified that he did not let go of the victim
until the “gun went off.” He said that the victim was “flailing,” and using her head to push
him on the table when the gun fired. Defendant agreed that even though he and the victim
were in a struggle, nothing appeared to be broken or disrupted at the scene, other than a
chair “moved away from where the table was at.” He said that he kicked the gun away
after the victim fell to the floor, and he eventually took the magazine out of it and “placed
it away so she would not be comfortable if she was going to get up and grab the gun.”
Defendant did not recall turning off the kitchen light after the shooting, and he said that he
did not remain in the room after the shooting because he was scared to be in there with her.
When asked if he did anything to physically help the victim, Defendant replied, “Look,
look, I don’t have no experience. What am I supposed to do? I don’t treat gunshot
wounds.” Defendant testified that Investigator McFarland later informed him that the
victim was deceased, and Defendant became emotional.

Defendant admitted that he wrote the letter recovered at the jail addressed to the
four individuals and used Ryan Stansberry’s name as the sender. He claimed that he sent
the letter to help himself because he was “scared that [his] proof of evidence was not in
[his] defense.” Defendant agreed that in the letter, he asked the individuals to find a witness
to lie to the jury and commit perjury.

4
Defendant testified that he also placed a call to Ms. Vasquez after the 911 call, while his phone
was at three percent.

- 18 -
On re-direct examination, Defendant testified that he did not know how the victim
died or how the gun fired. He said, “I didn’t even know where she was shot.” Defendant
further testified that he did not know whether the shooting was an accident or if the victim
was trying to harm herself.

Sentencing Hearing

At the sentencing hearing, the State’s proof consisted of the presentence report, an
addendum to the presentence report containing Defendant’s statement, and the affidavit of
complaint from Defendant’s prior judicial diversion case. It was noted that Defendant was
on judicial diversion at the time of the victim’s murder for an aggravated assault against
the victim that involved firing a weapon into her car.

Defendant presented no proof at the hearing and gave an allocution during which he
said that he still “had love” for the victim and her family. He said that he was not a “bad
guy” and got “caught up in a bad situation.” Defendant asked the trial court for “some type
of relief” and asserted that if the victim’s family were there, he “would love to tell them
sorry about how that event took place[.]” He said that he wished it never happened and
that he, L.M., and the victim’s family and friends were hurt by it. Defendant told the trial
court that he had taken himself out of the “situation” with the victim and was trying to get
custody of L.M. “to get him out of the [same] situation.”

After arguments by both the State and Defendant, the trial court revoked
Defendant’s judicial diversion sentence in the aggravated assault case noting that
Defendant “violated the terms of both his judicial diversion and his probation” and ordered
him to serve the original three-year sentence.

The trial court found that “none of the mandatory factors” for consecutive
sentencing apply in this case. The court further found:

But we then turn to the permissive consecutive sentencing
considerations under 40-35-115(b). I’ll note from the outset that I
think consideration (6) applies, “The defendant is sentenced for an
offense committed while on probation.”

I know that he was placed on judicial diversion, so you do have a
situation where the judgment was deferred, but if you look at the first
sentence of Section 313 it says in - - it’s plain language that the
sentence should be - - or could be deferred and the defendant placed
on probation.

- 19 -
So I think he was in fact statutorily on probation and therefore I think
Section 115 (b)(6) does apply to allow the Court to consider
permissive consecutive sentencing.

Additionally, the Court is called upon by the State to consider factor
4. “The defendant is a dangerous offender whose behavior indicated
little or no regard for human life and had no hesitation about
committing the crime in which the risk to human life is high.”

I’ve already ruled on that as it relates to revoking probation in the
previous case, but I would like to elaborate on that a little bit now. I
think the proof in this case that was presented to the jury absolutely
makes this showing.

This was a cold, calculated first-degree murder. And the steps that
[Defendant] took to procure the weapon, and just think of the little
details here, to procure - - it was a pink gun. So it would look like a
gun that would be possessed by a woman.

And then to eventually use that gun in her murder. To have the child
present when that happens. The Court does not think that was an
accident. I think that was an attempt by [Defendant] to create a
diversion, to create the thought in the investigators, Well, who would
shoot someone in front of their own child?

I think that was something that was done intentionally. I think
conducting that act in front of the child not only led to [the victim’s]
death, but then you’re firing a weapon in a closed room like that, it
could have very easily led to the death of the child.

He had no hesitation about committing this crime. It took - - it was
sometime between the time the gun was purchased and the actual
murder took place. I think it was part of his grand design that whole
time to commit this murder. He would have had multiple
opportunities to pull back and to change his mind and to not commit
this crime, but he did.

I do think an extended sentence is necessary to protect the public
against further criminal conduct by the defendant. I understand
[defense counsel’s] argument that really as a criminal matter he’s
only had issues with this one victim. But I think it’s true what the
State says as well, this was a victim who presented an issue for him.
She was a problem to him.

- 20 -
There will be instances in his life, if he does survive this sentence,
where he will run into other individuals like that. And I do find
reading the report or the statement given by [Defendant] which has
been filed as Exhibit 2, as well as his allocution here to the Court
today, if you read it closely and if you listen closely to what it’s
saying, I really think it’s chilling.

The lack of remorse, the air of he was doing this victim a favor, bless
her mother’s heart. She’s struggled with things. Bless this victim’s
heart; I was just trying to help her. And just a complete lack of
contrition and remorse for taking this woman out of the world. It is
chilling. And I think it speaks to how [Defendant] could handle
further disputes later in life.

Does an aggregate sentence reasonably relate to the severity of the
offenses committed? I think tacking three years on to a life sentence,
you know, and effective parole eligibility of 51 years, I think it does.
I think when you commit two actions like this, they’re separate,
horrible, violent acts and they should be punished separately.

The trial court imposed the mandatory life sentence for Defendant’s first-degree murder
conviction to be served consecutively to his three-year sentence for aggravated assault in
the previous case.

ANALYSIS

I. Sufficiency of the Evidence

Defendant argues that “[t]here is insufficient evidence in the record to establish
beyond a reasonable doubt that the [d]efendant is guilty of first-degree murder.” The State
responds that the evidence presented at trial was sufficient to support the jury’s verdict.

“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
“Appellate courts evaluating the sufficiency of the convicting evidence must 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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson

- 21 -
v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court
evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318
S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691
(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). 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 Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the
credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence, the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence. Dorantes, 331 S.W.3d at 379 (citing State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence,
this court “neither re-weighs the evidence nor substitutes its inferences for those drawn by
the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997)).

First-degree murder is defined as “[a] premeditated and intentional killing of
another.” T.C.A. § 39-13-202(a)(1). A person acts intentionally “when it is the person’s
conscious objective or desire to engage in the conduct or cause the result.” Id. § 39-11-
302(a).

“[P]remeditation” is an act done after the exercise of reflection and
judgment. “Premeditation” means that the intent to kill must have been
formed prior to the act itself. It is not necessary that the purpose to kill
pre-exist in the mind of the accused for any definite period of time. The
mental state of the accused at the time the accused allegedly decided to
kill must be carefully considered in order to determine whether the
accused was sufficiently free from excitement and passion as to be capable
of premeditation.

Id. § 39-13-202(e).

The element of premeditation is a factual question to be decided by a jury from all
the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn.
2003). Although a jury may not engage in speculation, it may infer premeditation from the
manner and circumstances of the killing. Bland, 958 S.W.2d at 660. Our supreme court

- 22 -
has held that factors demonstrating the existence of premeditation include, but are not
limited to, the following: the declaration of the intent to kill, the procurement of a weapon,
the use of a deadly weapon upon an unarmed victim, the fact that the killing was
particularly cruel, the infliction of multiple wounds, the making of preparations before the
killing for the purpose of concealing the crime, the destruction or secretion of evidence,
and calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401, 409 (Tenn.
2005); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). Additional factors cited by this
court from which a jury may infer premeditation include lack of provocation by the victim
and the defendant’s failure to render aid to the victim. See State v. Lewis, 36 S.W.3d 88,
96 (Tenn. Crim. App. 2000). Further, “[e]stablishment of a motive for the killing is a factor
from which the jury may infer premeditation.” State v. Leach, 148 S.W.3d 42, 54 (Tenn.
2004) (citing State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998)).

We conclude that the evidence viewed in the light most favorable to the State proves
that the killing in this case was premeditated. The victim and Defendant were involved in
a dispute over child support and custody of their four-year-old son, L.M., at the time of the
shooting. The proof shows that Defendant purchased a pink Cobra .380 caliber pistol in
cash a few weeks before the victim’s death from Mr. O’Neal, and the gun was not
registered in Defendant’s name. After the shooting, Defendant told the 911 operator and
investigators that he did know the victim had a gun, and he asked multiple times why she
had a gun. It was not until Investigator McFarland confronted Defendant with information
that Defendant purchased the weapon from Mr. O’Neal that Defendant changed his story
and said that he bought the gun for the victim, at her request, for protection from the
victim’s current boyfriend, Mr. Smith, and had given it to her on March 27, 2018.

Defendant told several different versions as to how the shooting occurred. He told
the 911 operator that the victim appeared holding the pistol, and the weapon discharged
when he wrestled her to the ground. He further told the operator that “she pulled the trigger.
It was pointing right at her.” Defendant told Detective McFarland that he pushed the victim
against the wall and that the gun discharged as she pushed him back. Finally, at trial,
Defendant testified that he and the victim struggled in the kitchen and that he was holding
her arms as she pushed off the wall against him. He claimed that both of them were on
their feet when the gun discharged and fell to the floor. However, the jury rejected
Defendant’s explanation at trial , as it was inconsistent with the physical evidence. The
medical examiner testified that based on tests performed by Special Agent Broadhag, the
muzzle of the pistol was approximately twelve inches from the victim’s face when the gun
discharged. The path of the bullet went from front to back with “injuries of [the victim’s]
mandible which is the bottom jawbone, the larynx which is the voice box, and the spine,”
where the bullet lodged. “[T]he bullet went directly from front to back.” The medical
proof was not consistent with any of Defendant’s explanations as to how the shooting
occurred.

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At no point did Defendant attempt to render aid to the victim other than to call 911
at some point and say that the victim was being aggressive and that he thought she was
going to shoot him. The body camera footage shows that the kitchen light was turned off
when officers arrived at the apartment. Defendant told the 911 operator that the victim
shot herself, and he repeatedly lied about the gun during the call. Defendant claimed that
he did not know the address of the victim’s apartment and had to go to a neighbor’s house
to get the address, even though he had just driven himself there. There was also evidence
presented that shortly before the shooting, Defendant searched the internet on his phone
for information on “limits on self-defense” and “killing someone in self[-]defense while on
probation.” Defendant told Detective McFarland that he was on probation at the time of
the shooting. He also wrote a letter to several individuals after his arrest in this case asking
them to find a witness to falsely testify on his behalf at trial and to edit the internet search
history on his phone.

Defendant contends that the evidence at trial “is entirely consistent with [his]
explanation of how this shooting occurred.” He correctly points out that no gunshot residue
was found on his hands, that his DNA was not found on the gun or under the victim’s
fingernails, that no latent fingerprints were found on the gun, and there was no blood spatter
on his clothing. However, the jury heard this evidence, and as was its prerogative, found
that it did not prove Defendant’s innocence.

We conclude that a rational jury could have determined beyond a reasonable doubt
that Defendant killed the victim intentionally and with premeditation. Therefore, the
evidence is sufficient to support Defendant’s first-degree murder conviction, and he is not
entitled to relief on this issue.

II. Admission of L.M.’s Statements to the Forensic Interviewer

Defendant argues that the trial court “failed to consider the applicability of
Chambers v. Mississippi, [410 U.S. 284 (1983),]” in determining whether L.M.’s statement
during his forensic interview was admissible and that he could have “admitted this
exculpatory interview into evidence, and it is highly likely that this exculpatory interview
would have changed the outcome of this trial.” The State contends that the issue as to
Chambers is waived because Defendant has raised it for the first time on appeal and that
the trial court properly determined that L.M.’s statement was hearsay, and no exception to
the hearsay rule applied to allow its admission. The State further argues that the statement
was not admissible under Chambers.

Before presentation of the evidence at trial, the State made an oral motion in limine
“to exclude any reference to statements made of [L.M.], the child in this matter, to
Childhelp and specifically forensic examiner Kelly Sanders.” The State argued that any
statements made by L.M. during the interview would be hearsay with no applicable

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exception. Defense counsel asserted that the statement would be “an excited utterance,
given the nature of the situation,” referring to a recording from Deputy Bryant’s patrol car
video. The trial court pointed out that the parties were referring to two different statements
made by L.M. and noted that the body cam footage was already “in evidence with the
limitations that was set forth yesterday.” Concerning the forensic interview, the State
informed the trial court that L.M.’s statement was given to the forensic interviewer on April
17, 2018, the day after the shooting and pointed out that the interview notes stated that
“[t]he child was not very verbal and the extent of what he said could be reduced . . . [t]o
‘Mama is dead and mama had a pink gun.’”

The trial court did not rule on the motion in limine and stated:

Okay. Well, as it relates to Childhelp interview, I mean on its face I
think we’re certainly talking about hearsay here. The defense is
claiming the exception applies because its an excited utterance. I
haven’t seen the tape, so I don’t have any way of knowing whether
it is or is not an excited utterance. So I’m unable to rule on that
particular point at this time. So I would ask that neither party
mention it going forward until we have an opportunity for me to look
at the tape and see what, if any, hearsay exceptions might apply to
the Childhelp interview. So I guess I’ll reserve ruling on the State’s
motion as it relates to that.

At trial, Defendant abandoned the excited utterance argument and in his brief on appeal
concedes that the exception would not apply in this case to the statement L.M. made in the
forensic interview. He did not make any further attempt to introduce L.M.’s statement at
trial. Defendant does not argue that any other hearsay exception applies here.

On appeal, Defendant argues for the first time that L.M.’s statement to the forensic
interviewer should have been considered by the trial court in accordance with ruling of the
United States Supreme Court in Chambers. However, issues raised for the first time on
appeal are waived. See Tenn. R. App. P. 36 (a); State v. Herbison, 539 S.W.3d 149, 164
(Tenn. 2018) (“[t]o preserve the double jeopardy issue, [the defendant] had to raise it in his
motion for new trial and appellate brief”).

Defendant argues that “failure by the trial court to consider the applicability of
Chambers v. Mississippi, as well as the trial court’s insistence that a traditional hearsay
exception must apply in order for it to consider admitting the forensic interview into
evidence, constitutes plain error that has affected the substantial rights of [Defendant].” To
demonstrate plain error, Defendant must show that: (1) the record must clearly establish
what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3)
a substantial right of the accused was violated; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is necessary to achieve substantial

- 25 -
justice. State v. Rimmer, 623 S.W.3d 235, 255-56 (Tenn. 2021), reh’g denied (May 21,
2021), cert. denied, 142 S. Ct. 790 (2022) (citing State v. Martin, 505 S.W.3d 492, 504
(Tenn. 2016). “[A]n appellate court need not consider all criteria when the record
demonstrates that one of them cannot be established.” State v. Vance, 596 S.W.3d 229,
254 (Tenn. 2020).

Defendant did not include the Childhelp interview in the record at trial or on appeal
and failed to provide an offer of proof at trial from the forensic interviewer. Additionally,
at trial, Defendant failed to show that L.M.’s statement to the forensic interviewer had
sufficient indicia of reliability. After the trial court indicated that it would have to review
the interview and reserved ruling on the matter, Defendant failed to pursue the issue further.
He made no argument at trial that the statement was admissible in accordance with
Chambers. Because we do not have a sufficient record from which we can analyze this
issue and cannot conclude that “a clear and unequivocal rule of law” was breached in this
case, we cannot review this issue under the plain error doctrine. Rimmer, 623 S.W.3d at
255-56. Defendant is not entitled to relief on this issue.

III. Admission of Evidence From Google Searches5

Tennessee Rule of Evidence 401 defines “relevant evidence” 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.”
Generally, relevant evidence is admissible, while irrelevant evidence is inadmissible.
Tenn. R. Evid. 402. However, relevant evidence may be excluded if its probative value is
“substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.

It is well-established “that trial courts have broad discretion in determining the
admissibility of evidence, and their rulings will not be reversed absent an abuse of that
discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Tennessee Rule of
Evidence 404(b) permits the admission of evidence of prior conduct if the evidence of other
acts is relevant to a litigated issue such as identity, intent, or rebuttal of accident or mistake,
and the probative value outweighs the danger of unfair prejudice. Tenn. R. Evid. 404(b)
Advisory Comm’n Cmts.; see State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985); State v.
Hooten, 735 S.W.2d 823, 824 (Tenn.Crim.App. 1987). However, “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity with the character trait.” Tenn. R. Evid. 404(b). Before admitting
evidence under Rule 404(b), the rule provides that (1) upon request, the court must hold a
hearing outside the jury’s presence; (2) the court must determine that the evidence is
probative on a material issue and must, if requested, state on the record the material issue
and the reasons for admitting or excluding the evidence; (3) the court must find proof of
the other crimes, wrongs, or acts to be clear and convincing; and (4) the court must exclude

5
We have combined Defendant’s Issues III and IV.

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the evidence if the danger of unfair prejudice outweighs its probative value. Tenn. R. Evid.
404(b).

A. Failure to Redact Google Searches

First, Defendant contends that “[t]he trial court erred by failing to redact the words
‘on probation’ from the Google searches that were taken from the [d]efendant’s phone by
law enforcement and introduced into evidence at trial.” The State responds that the issue
is waived because Defendant failed to prepare a proper record for review.

The record shows that Defendant filed a pretrial motion in limine to preclude the
State from making reference to Defendant’s prior criminal history. Defendant specifically
sought to exclude “any reference to [his] searches on his phone regarding committing a
crime while on probation.” A hearing on the motion was held, and the trial court took the
matter under advisement. In his brief, Defendant cites to his motion in limine and court
minutes in the record showing that a hearing was held. However, the record does not
include a transcript of the hearing nor does it include any order, written or oral, concerning
the motion. Defendant also makes no reference in his brief to the hearing. Further,
Defendant did not respond to the State’s waiver argument in a reply brief, or request to
supplement the record with the missing transcript. 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) (citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn.
1983)). Where the record is incomplete and does not contain a transcript of the proceedings
relevant to an issue presented for review, or portions of the record upon which the party
relies, an appellate court is precluded from considering the issue. Id. at 561 (citing State v.
Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)). Absent the necessary relevant
material in the record, an appellate court cannot consider the merits of an issue. See
T.R.A.P. 24(b). Here, Defendant failed to include the transcript of the hearing on his
motion in limine. Accordingly, we conclude that the issue has been waived and decline to
address its merits.

B. Results of Google Search by Detective McFarland

Defendant argues that the trial court erred by admitting results of a Google search
conducted by Detective McFarland a week after the victim’s murder, as well as the contents
of the top three articles from the Google search.

During Detective McFarland’s testimony, the State moved to admit Exhibits 60
through 74, all related to Defendant’s cell phone contents and history. Defendant objected
only to Exhibit 74, the Google search conducted by Detective McFarland. Defendant did

- 27 -
not object to Exhibit 73 which was the report of cookie data from Defendant’s cell phone.
In a jury-out hearing, the following exchange took place:

[Prosecutor]: Okay. So if you look at 71, Judge, you see in
Exhibit 71 that is an exhibit that’s been introduced as the search
history on the defendant’s phone, and those are items that he
searched, some of which have been deleted. As you can note from
the report, it doesn’t tell us when the actual item was searched, and
so we are relying upon other means for the investigator to testify
about that.

So in conjunction with the web history report and the cookies report,
what the investigator did was he went in those and at Google, to
Google, and googled, “Killing someone in self-defense while on
probation.” And that was what Exhibit 74 started with. It was a
Google search that he did April 23rd, 2018. And the top three
results, Judge, are the top - - when he googled that April 23rd of
2018. Now, this is the link that links this search, “Killing someone
in self-defense while on probation.”

This is why we know he did it in April of 2018 is because the top
three Google results he actually visited those websites. The number
one Google result it comes back to one of the three articles that we
had attached to the Google search and that was “Convicted felon
faces charges for defending self against violent home invasion.”

And we know that that is on his phone because it appears in the
cookies report. It’s going to be 66 through 68. The website being
Learnaboutguns.com, “Convicted felon.” Cookies 66 through 68.
So that, that comes back as the number one Google search and is also
in his cookies for that - - and that date and time. The cookies were
– put it there on April 16th around 7:30.

The second article, Judge, is a direct hyperlink from the web history.
You see in the web history number five has a hyperlink to the article
that was accessed on April 16th, 2018, and it’s also found in his
cookies, 75 through 82, and 86 through 92.

So it’s the number two return when you google the term, “Killing
someone in self-defense while on probation,” and he accessed it
because its in his web history and his cookies.

* * *

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[Prosecutor]: All from April 16th. The number three items that
came up in the Google search is number six in his web history, and
it actually is a hyperlink to the website TexasCLH - - CHLforum.

* * *

[Prosecutor]: And it’s also appearing 93, 95 in his cookies. The
remaining items in the Google search that we attempted to get in, we
don’t have any evidence on his phone that he ever hyperlinked
through to them or even accessed them because there’s no cookies
or web history relating to all the rest of the - - we have four pages of
Google search, Judge.

* * *

[Prosecutor]: But we believe that this search that the detective
conducted back in April of 2018 is the link and shows the positive
connection between the search of “Killing someone in self-defense
while on probation,” to prove that that was done April 16th, 2018.

So that was the gravamen and the connection between the web
history, the cookies, and the deleted phrase, “Killing someone in
self-defense while on probation.”

When the Court learned that Exhibit 74 contained links to additional websites which
were not verified to have been accessed by Defendant, it sustained the objection to Exhibit
74, stating: “If there are - - if we have cookies or web history that indicates specific sites
that he actually visited, I think that would be admissible. But I think we need to tie it into
that and we can’t just have all of these links that he may or may not have even seen.” The
State then agreed to redact the report contained in Exhibit 74 to include only the first three
articles that were verified to have been accessed by Defendant’s cell phone through the
cookie report admitted without objection as Exhibit 73.

When the trial resumed, Detective McFarland testified that on April 23, 2018, he
replicated the Google search Defendant made on his phone for “killing someone in self-
defense while on probation.” The top three results included an article from
Learnaboutguns.com, entitled “Convicted Felon Faces Charges for Defending Self Against
Violent Home Invader”; an article from Lawyers.com, entitled “Limits on Self-Defense”;
and an article from Texasschlforum.com, entitled “Probation, stand your ground, peaceful
journey . . .etc.” Detective McFarland testified that the “cookies” report from Defendant’s
phone indicated that the articles were accessed on Defendant’s phone. The trial court then
admitted the redacted version of the report as Exhibit 74 over Defendant’s renewed
objection. The trial court concluded:

- 29 -
I mean as to the fact that the detective singled out certain search
items, I mean obviously this is a homicide investigation so he’s
going to zero in on certain items, you know, “Reap what you sow,”
whatever that means.

Apparently it didn’t have any significance to the investigator, so he
didn’t look into that. We certainly don’t expect him to pull out every
single website that the defendant mentioned, but rather focus on the
ones that might have some relevance to the issue at hand here.

What we do have is a search - - a couple of search terms that the
investigator replicated about a week after the incident. The State had
redacted the search results to list only the three links that the
investigator was able to tie back to the defendant’s phone as websites
that had been visited.

Whether they were in the web history or whether they were in the
cookies portion of the telephone, you know, any argument as to, you
know, whether the defendant actually read them or how much time
he spent reading them. I think that’s an argument that would go
towards the weight that the jury should attach to those, but not
necessarily to their admissibility.

So I am comfortable with the redactions that have been made by the
State that we are limiting this to only the websites that were actually
accessed on that phone, and I think that that would be admissible.

Defendant argues in his brief that the Google search and accompanying articles are
not relevant evidence within the meaning of Tenn. R. Evid. 401 as the search was
conducted a week after the shooting occurred. Defendant also argues that “it is well known
that Google [s]earch results are not static; they can change from day to day.” Thus, there
is no way to know whether the Google search conducted by Detective McFarland using
search terms previously used by Defendant would yield the same results, and therefore
Detective McFarland’s Google search results are irrelevant and inadmissible. Defendant
further argues that even if the search results were relevant, the probative value was
substantially outweighed by the risk of prejudice since the search made reference to
“probation” and may have implied to the jury the Defendant was on probation or may have
been a convicted felon. The State argues that the search results were not speculative
because the evidence presented at trial established that the articles in question were actually
accessed on Defendant’s phone based on the cookies data, and further that the evidence
was relevant to show that Defendant acted with premeditation.

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We conclude that the redacted report with the results of the search replicated by
Detective McFarland were relevant to the issue of whether Defendant killed the victim with
premeditation. Through the cookie data admitted without objection in Exhibit 73, the proof
showed that the top three articles that came up as a result of the search were actually
accessed on Defendant’s phone prior to the victim’s death. Other articles that came up as
a result of the search were redacted. The trial court determined that Defendant’s exposure
to the information in the search results went to the weight of the evidence rather than its
admissibility. Because Defendant did not object to Exhibit 73, the cookie data report which
verified Defendant’s access to the articles on his cell phone, there can be no prejudice.
Defendant is not entitled to relief on this issue.

IV. Consecutive Sentencing

Defendant argues that the trial court erred by ordering his life sentence for first-
degree murder to be served consecutively to his prior three-year sentence for aggravated
assault. The State responds that the trial court properly sentenced Defendant.

When an accused challenges the length of a sentence, this court reviews the trial
court’s sentencing determinations under an abuse of discretion standard accompanied by a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). “This
abuse of discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). See also State v.
Pollard, 432 S.W.3d 851, 859-60 (Tenn. 2013) (standard of appellate review for
consecutive sentencing is abuse of discretion accompanied by a presumption of
reasonableness). A finding of abuse of discretion indicates the “trial court’s logic and
reasoning was improper when viewed in light of the factual circumstances and relevant
legal principles involved in a particular case.” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn.
2001). A trial court has not abused its discretion unless “the record [is] void of any
substantial evidence that would support the trial court’s decision.” Id.

In making sentencing decisions, trial courts must consider the following: (1) the
evidence received at trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the conduct involved; (5) evidence and information offered by the parties
regarding the statutory mitigation and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (6) any statistical information provided by
the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement the defendant wishes to make on his own behalf; and (8) the
result of the validated risk and needs assessment conducted by the department and
contained in the presentence report. See T.C.A. § 40-35-210(b).

- 31 -
Tennessee Code Annotated section 40-35-115(b) sets forth the criteria the court
shall consider in ordering sentences to run consecutively or concurrently:

(b) The court may order sentences to run consecutively if the court
finds by a preponderance of the evidence that:

(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life and no hesitation
about committing a crime in which the risk to human life is
high;

(6) The defendant is sentenced for an offense committed while
on probation;

Id. § 40-35-115(b)(4). See also Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). A
defendant may be classified as a dangerous offender if the crimes for which he is convicted
indicate that he has little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high. Id. See also T.C.A. § 40-35-115(b)(4). The
decision to impose consecutive sentences when crimes inherently dangerous are involved
should be based upon the presence of aggravating circumstances and not merely on the fact
that two or more dangerous crimes were committed. Gray, 538 S.W.2d at 393. To impose
consecutive sentencing based on a finding that the defendant is a dangerous offender, the
court must also find that “an extended sentence is necessary to protect against further
criminal conduct by the defendant and that the consecutive sentences must reasonably
relate to the severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995). The trial court must also make specific findings about “particular facts” that
support the Wilkerson factors. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999) (citing
Wilkerson, 905 S.W.2d at 939). So long as the trial court properly articulates reasons for
ordering consecutive sentences, thereby providing a basis for meaningful appellate review,
the sentences will be presumed reasonable and, absent an abuse of discretion, upheld on
appeal. Pollard, 432 S.W.3d at 862.

As set out above, the trial court articulated its reasons for consecutive sentencing
and sentenced Defendant to a within-range sentence that reflect the purposes and principles
of the Sentencing Act. Defendant contends that the trial court erred in finding that he was
sentenced for an offense committed while he was on probation because judicial diversion
“is not the same as probation” for purposes of consecutive sentencing. Defendant cites no
authority in support of his claim. Tennessee Code Annotated section 40-35-313(a)(1)(A)
states, “The court may defer further proceedings against a qualified defendant and place
the defendant on probation upon such reasonable conditions as it may require without
entering a judgment of guilty and with the consent of the qualified defendant.” The plain
language of the diversion statute states that a defendant on diversion is on probation. We

- 32 -
agree with the trial court that Defendant committed the murder in this case while he was
on probation for aggravated assault.

Likewise, the trial court did not abuse its discretion by finding that Defendant was
a dangerous offender whose actions indicated little to no regard for human life and that he
expressed no hesitation about committing a crime in which the risk to human life was high.
The trial court made the requisite Wilkerson findings, and concluded that the circumstances
of the offense were aggravated, that confinement for an extended period of time was
necessary to protect society from further criminal activity from Defendant, and that the
aggregate sentence reasonably related to the seriousness of the offenses. The trial court
properly ordered Defendant to serve his life sentence consecutively to his prior three-year
sentence for aggravated assault. Defendant is not entitled to relief on this issue.

V. Cumulative Error

Defendant contends that he is entitled to a new trial because “cumulative error exits
such that [he] was denied due process of law and a new trial is necessary.” The State
counters that Defendant is not entitled to relief due to cumulative error.

Our supreme court has stated:

The United States Constitution protects a criminal defendant’s right to a
fair trial; it does not guarantee him or her a perfect trial. We have reached
the same conclusion with regard to the Constitution of Tennessee. It is
the protection of the right to a fair trial that drives the existence of and
application of the cumulative error doctrine in the context of criminal
proceedings. However, circumstances warranting the application of the
cumulative error doctrine to reverse a conviction or sentence remain rare.

The cumulative error doctrine is a judicial recognition that there may be
multiple errors committed in trial proceedings, each of which in isolation
constitutes mere harmless error, but which when aggregated, have a
cumulative effect on the proceedings so great as to require reversal in
order to preserve a defendant’s right to a fair trial.

State v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010) (citations omitted).

To warrant assessment under the cumulative error doctrine, there must have been
more than one actual error committed in the trial proceedings. State v. Herron, 461 S.W.3d
890, 910 (Tenn. 2015) (citing Hester, 324 S.W.3d at 77). After considering each of

- 33 -
Defendant’s issues on appeal and finding no error, we need not consider the cumulative
effect of any alleged errors.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

____________________________________
JILL BARTEE AYERS, JUDGE

- 34 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8482869. Public record. Not legal advice.