State of Tennessee v. Hamid Houbbadi

12/08/2023

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 10, 2023 Session

STATE OF TENNESSEE v. HAMID HOUBBADI

Appeal from the Circuit Court for Montgomery County

No. 63CC1-2019-CR-400 Robert Bateman, Judge

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No. M2022-01751-CCA-R3-CD

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The Defendant, Hamid Houbbadi, was convicted by a Montgomery County Circuit Court

jury of first degree premediated murder, first degree felony murder, and especially

aggravated burglary, for which he received an effective sentence of life plus twelve years.

The Defendant raises three issues on appeal: (1) whether the evidence is sufficient to

sustain his convictions; (2) whether the trial court erred by admitting orders of protection

the victim obtained against the Defendant; and (3) whether the trial court erred in imposing

a twelve-year sentence for his especially aggravated burglary conviction and ordering that

it be served consecutively to his life sentence. Based on our review, we affirm the

judgments of the trial court.

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

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and KYLE A. HIXSON, JJ., joined.

Manuel B. Russ, Nashville, Tennessee (on appeal); Charles S. Bloodworth, Assistant

District Public Defender, Clarksville, Tennessee (at sentencing); and Chase Smith,

Clarksville, Tennessee (at trial), for the appellant, Hamid Houbbadi.

Jonathan Skrmetti, Attorney General and Reporter; Katharine K. Decker, Assistant

Attorney General; and Robert J. Nash, District Attorney General, for the appellee, State of

Tennessee.

OPINION

FACTS

This case arises out of the stabbing death of the Defendant’s estranged wife, Leila

Chanane. According to the State’s proof at trial, on October 19, 2018, the Defendant, who

was barred from the couple’s Clarksville marital residence by the terms of a protective

order, parked his vehicle at a nearby Walmart and took an Uber to the marital residence,

where he turned off the main circuit breaker inside the house, armed himself with a butcher

knife, and waited in the dark for the victim to come home from work. When the victim

reached the front porch, the Defendant attacked her with the knife, stabbing her twice in

the chest and seven times in the back and upper arm as she attempted to flee. The victim’s

next-door neighbor discovered the deceased victim lying in the neighbor’s driveway early

the next morning. A short time later, responding police officers encountered the Defendant

inside the marital residence, where he had overdosed on prescription medication and cut

his wrists and neck with a straight razor. The Defendant was subsequently indicted for

first degree premeditated murder, first degree felony murder in perpetration of or the

attempt to perpetrate especially aggravated burglary, and especially aggravated burglary.

At the pretrial hearing at which the trial court considered the admissibility of various

evidence, Kevin Fowler, an attorney employed with the Legal Aid Society of Middle

Tennessee and the Cumberlands, detailed his representation of the victim as she sought an

order of protection against the Defendant. He said that the petition was granted on

September 26, 2018, with a hearing set for October 9. On October 9, the parties, through

their respective counsel, entered into an agreement that amended the order of protection to

allow the Defendant temporary access to the marital residence in order to retrieve his

personal clothing and medication, with a new hearing date of November 12. He stated that

the amendment was made at the request of the Defendant and reflected the agreement of

the parties. When asked by the trial court whether he viewed the October 9 order as an ex

parte order or a consent order, he responded, “It’s a continuation of the ex parte, or

temporary order, and reset the hearing.” He then agreed with the trial court that it could

also be considered a consent agreement. When pressed on re-cross-examination to say that

it remained an ex parte order regardless of the parties’ consent, he replied that the statute

was not clear “[b]ut it essentially . . . is either converted into a temporary order by

agreement of the parties, which binds both parties, or you could say that it extends the ex

parte.” He acknowledged that a hearing was not held and that the amended order did not

contain any findings of fact.

At trial, Detective Michael Luebke of the Clarksville Police Department testified

that he responded between 5:00 and 5:15 a.m. on October 20, 2018, to the report of a

deceased individual in the driveway of 510 Bellamy Lane. When he arrived, the

unresponsive victim had no pulse and was “cold and stiff” with what appeared to be blood

on her coat and injuries to her torso. The victim was dressed in a tan coat, black pants, and

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t-shirt. There was a scarf covering her face, later described by another witness as a middle

eastern hajib, and a set of keys was lying on the ground near her right hand.

Jaymes Thomas Dewitte, the victim’s neighbor at 510 Bellamy Lane, testified that

he was leaving for work at 5:00 a.m. on October 20, 2018, when he saw the victim’s body

in his driveway and called 911. He said his wife had come home at approximately 6:30

p.m. the previous day. He and his wife lived alone, and no one visited their home that

evening.

Clarksville Police Officer Adam Post, a patrol and crime scene officer, arrived at

the scene at 6:15 a.m. and was directed to check the victim’s and the Defendant’s marital

residence, located at 508 Bellamy Lane. He testified that he found the front and back doors

locked and noted that the windows were closed. He also noted red-brown stain, or “RBS,”

on the front porch and front doors and saw a lunchbox in the flowerbed to the right of the

front porch. As he was taking photographs, another member of the crime scene team

reported that the front door of the residence had been opened. Officer Post and his fellow

officers approached, saw the Defendant lying in the doorway, drew their weapons, and

ordered the Defendant to show his hands. The Defendant complied, and the officers called

for an ambulance and cleared the residence.

Officer Post identified the photographs he took that morning, which included

photographs of RBS on the front porch, porch columns, and front doors of the residence; a

large butcher knife with RBS on the living room couch; a straight razor, prescription pill

bottles, a woman’s purse, and large amount of RBS in the hallway bathroom; the Defendant

inside an ambulance with bandaged wounds to his wrists and neck; and mulch inside the

residence. Officer Post testified that the mulch appeared to match the mulch in the outside

flowerbed. He expressed his certainty that none of the police officers tracked mulch into

the house.

Attorney Kevin Fowler testified that he had assisted the victim with filing a petition

for a temporary, often interchangeably referred to as an “ex parte,” order of protection

against the Defendant in the Montgomery County Circuit Court. He described for the jury

the process involved, including the meaning of “ex parte”:

It’s often called ex parte order for the first 15 days because that’s Latin

for “without party.” So that order can actually be initially entered without

the party knowing about it. Then that individual has to be served in order for

the hearing to occur.

He testified that the petition was granted and the ex parte order of protection entered

on September 26, 2018, with the hearing set for October 9, 2018. Under the terms of the

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ex parte order, the Defendant was to immediately vacate the marital residence pending the

hearing.

Mr. Fowler testified that on the October 9, 2018 hearing date, both the victim and

the Defendant, who was represented by counsel, agreed to an amendment to the original

ex parte order of protection. Under the terms of the amended order, the hearing date was

extended to November 12, 2018, and the Defendant was granted access to the marital

residence between 12:00 p.m. on October 9, 2018, and 5:00 p.m. on October 10, 2018, to

retrieve his personal clothing and medication. All other conditions remained in place, with

the victim to resume possession of the marital residence after 5:00 p.m. on October 10.

The amended order, which was one of many exhibits admitted at trial, reads in pertinent

part: “Respondent may return to the marital home between 12:00 p.m. on October 9, 2018,

and 5:00 p.m. on October 10, 2018, to gather and retrieve his personal clothing and

medication. Petitioner will return to the home following this period of time.”

On cross-examination, Mr. Fowler acknowledged that a hearing was not held on

October 9, 2018. He said that an interpreter was present, and that she provided

interpretative services to the victim. He stated that the Defendant, through his attorney,

was the one who requested the amendment to allow him temporary access to the residence

to retrieve his clothing and medication. He acknowledged that he signed the amended

order on the behalf of the Defendant’s attorney but said it was with the attorney’s

permission and was a common practice. He could not recall if the Defendant’s attorney

was present in the courtroom at the time the amended order was signed or entered and said

he did not know “at what point [the Defendant] might have been present or what he heard.”

Deputy Nicolas Jacob Oakes of the Montgomery County Sheriff’s Department

identified his signature on the return of service form for the victim’s September 26 ex parte

order of protection, which reflected that he personally served the Defendant with copies of

the petition, notice of the hearing, and the order of protection at 7:15 a.m. on September

27, 2018.

Kenneth Pedrosa, who worked in asset management at the Clarksville Walmart on

Wilma Rudolph Boulevard, identified a disc containing October 19, 2018 surveillance

video from the store’s pharmacy area and parking lot.

Nicole Stephens Papillion, who was working as an Uber driver on October 19, 2018,

testified that at approximately 10:40 a.m. that day, she picked up the Defendant from the

parking lot of the Wilma Rudolph Boulevard Walmart and dropped him off on Bellamy

Lane. She made a positive courtroom identification of the Defendant as the man she picked

up that morning. She also identified the Defendant as the man in the Walmart surveillance

video standing at the Walmart pharmacy counter and later getting into her vehicle in the

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store parking lot. She said that when she dropped the Defendant off on Bellamy Lane, he

directed her to stop in the middle of the road in front of a residence instead of having her

pull into a driveway. On cross-examination, she acknowledged that the Defendant had to

have an established Uber account with identification to summon an Uber ride.

John Jackson, energy services manager at CDE Lightband, identified energy

interval data records for the Defendant’s and the victim’s marital home, which reflected

that power to the residence was cut off between 11:00 and 11:15 a.m. on October 19, 2018

and was not restored until between 5:00 and 5:15 p.m. on October 20, 2018. He said there

were no weather outrages and no reports of downed lines in the area during that time.

Rebecca Lynn Goppert, a bus driver employed with the Clarksville Transit System,

identified security footage from the bus she was driving on October 19, 2018, which

showed the victim boarding the bus and later exiting at approximately 6:45 p.m. She said

the victim was one of her regular passengers, with the same pick up and drop off locations.

Officer Daniel Binkley of the Clarksville Police Department identified a crime scene

video he recorded on October 20, 2018.

Samar Benmansour, a friend of the victim, identified the victim from both a still

photograph and from the October 19, 2018 bus surveillance video.

Damien Talley of the YWCA of Nashville and Middle Tennessee testified that he

operated a 24-hour domestic violence shelter where the victim resided from September 26

to October 11, 2018.

Officer Tyler Weaver of the Clarksville Police Department testified that on October

11, 2018, he responded to 508 Bellamy Lane, where he spoke to the victim, who was alone.

He said the victim wanted him to gain access to a room with a locked interior door and that

he attempted to do so but was unsuccessful.

Officer Adam Price of the Clarksville Police Department testified about his role in

securing the Defendant’s Nissan vehicle, which was discovered in the Walmart parking lot

and seized as evidence.

Lieutenant Garland Lester, II of the Montgomery County EMS testified that the

Defendant had more cuts to his left wrist than he had ever before seen, with the wound so

open that the anatomy of the wrist was exposed. The Defendant also had cuts to his right

wrist and to his neck. There was “dried blood everywhere[,]” but the wounds were no

longer actively bleeding at the time Lieutenant Lester treated the Defendant and transported

him to the hospital.

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Retired Clarksville Police Department Detective Terry Minton, the crime scene

commander, testified that when he reentered 508 Bellamy Lane with a search warrant after

the initial protective sweep of the residence, he found that none of the lights worked. He

went outside to look at the electric meter, realized that the power was off, and searched for

the circuit breaker box, which he located behind a bookcase in a mud room off the kitchen.

He then opened the panel door and saw that the main circuit breaker had been turned to the

off position.

Detective Minton identified items of evidence collected in the case, including swabs

of RBS found throughout the exterior and interior of the marital residence, a black insulated

cooler found in the flowerbed to the right of the front porch, a knife with RBS found on

the living room couch, a straight razor found on the floor in the hallway bathroom, and two

prescription bottles with RBS on them found in the hallway bathroom. He testified that

one of the prescription bottles was for Losartan Potassium with one pill left in the bottle,

and the other was for Atorvastatin Calcium and was empty. Both medications had been

prescribed to the Defendant and were dated October 19, 2018.

Dr. David Zimmerman, the medical examiner who performed the autopsy of the

victim’s body, testified that the victim had seven stab wounds to the back and two stab

wounds to the chest. He was unable to determine the order in which the wounds were

inflicted and documented them as A through I, starting with the wounds on the back. Stab

wound A was a penetrating stab wound to the right upper back that passed between the

right scapula and the ribs. Stab wound B was a penetrating stab wound to the right upper

back with injuries of the skin and underlying muscle. Stab wound C was a penetrating stab

wound to the left upper back with injuries of a fractured scapula and incised wounds to the

intercostal muscles, upper and lower lobes of the left lung, and left pulmonary artery. Stab

wound D was a penetrating stab wound to the back of the left upper arm that went into the

upper back, with a fracture of the lateral arc of rib 4 and an incised wound of the skeletal

muscle of the left side of the chest. Stab wound E was a penetrating stab wound to the left

mid-back with incised wounds of the underlying muscle and of the lower lobe of the left

lung. Stab wounds F and G were both penetrating stab wounds to the left lower back in

which the wound tracks intersected, with an incised wound of the intercostal muscles

between left ribs 10 and 11 and a fracture of left rib 11. Stab wound H was a penetrating

stab wound on the left breast below the nipple with incised wounds of the intercostal

muscles between left ribs 5 and 6, a fracture of the sternum, an incised wound of the upper

lobe of the left lung, an incised wound of the epicardial fat, an incised wound of the

diaphragm, and an incised wound of the liver. Stab wound I was a penetrating stab wound

to the left lateral chest with injuries to the skin and skeletal muscle.

Dr. Zimmerman testified that stab wound C was a fatal wound that would have

resulted in the victim’s death within minutes. He said that stab wounds D and E could have

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been fatal as well due to the injuries they caused to the victim’s lung, which would have

made breathing difficult. He stated that neither drugs nor alcohol were detected in the

victim’s blood, and that there were no defensive wounds on her body. He determined that

the victim’s cause of death was multiple stab wounds and the manner of death was

homicide.

Dr. Zimmerman testified that the knife recovered from the marital residence had a

V-shaped side and a blunted side that was consistent with the victim’s stab wounds. When

asked about the prescription pill bottles recovered from the hallway bathroom, he testified

that Losartan was prescribed for high blood pressure and Atorvastatin was prescribed for

high cholesterol.

Homicide Detective Jason Kurtich of the Clarksville Police Department testified

that the Uber ride records showed that the Defendant was picked up at 10:35 a.m. from the

Wilma Rudolph Boulevard Walmart and dropped off at 10:41 a.m. at 511 Bellamy Lane.

He identified the buccal swabs he had obtained from the Defendant for his DNA and a set

of keys with a Nissan key fob that was found on a bedside nightstand during the execution

of the search warrant. On cross-examination, he acknowledged that he obtained search

warrants for the Defendant’s DNA, vehicle, marital residence, and cell phone despite the

Defendant’s having given his consent for those searches. On redirect examination, he

testified that the Defendant also gave him consent to search the residence in Nashville

where the Defendant had been living.

Kathi Gibson, an expert in latent prints employed with the Tennessee Bureau of

Investigation (“TBI”) Crime Laboratory in Nashville, testified that she was unable to make

any identification from the latent prints submitted in the case.

TBI Forensic Scientist Greg Fort, an expert in forensic biology who analyzed the

RBS swabs submitted in the case, testified that three swabs from the front porch tested

positive for human hemoglobin and matched the victim’s DNA profile. Other swabs

collected from the exterior and interior of the residence tested positive for blood and

matched the Defendant’s DNA profile. With respect to the knife found in the residence, a

swab from a stain on the blade near the handle tested positive for blood and human

hemoglobin and contained a mixture of the DNA of at least two individuals, with the major

contributor the Defendant and the DNA profile of the minor contributor deemed to be

inconclusive. A swab taken from the handle of the knife where there was no RBS, which

did not test positive for blood, contained the DNA profiles of at least two individuals, with

the Defendant the major contributor and the DNA profile of the limited minor contributor

again deemed inconclusive.

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The Defendant elected not to testify and rested his case without presenting any

evidence. Following deliberations, the jury convicted the Defendant of first degree

premeditated murder, first degree murder during the perpetration of the felony of

aggravated burglary, and especially aggravated burglary. The trial court subsequently

merged the felony murder conviction into the premeditated murder conviction and

sentenced the Defendant to life imprisonment. Finding two enhancement factors

applicable and that the Defendant qualified as a dangerous offender under the consecutive

sentencing statute, the trial court sentenced the Defendant to the maximum term of twelve

years for the especially aggravated burglary conviction and ordered that the sentence be

served consecutively to the life sentence, for a total effective sentence of life plus twelve

years in the Tennessee Department of Correction.

Following the denial of his motion for new trial, the Defendant filed a timely notice

of appeal to this court.

ANALYSIS

I. Sufficiency of the Evidence

As his first issue, the Defendant challenges the sufficiency of the evidence in

support of his convictions. When the sufficiency of the evidence is challenged on appeal,

the relevant question of the reviewing court is “whether, after viewing the evidence in the

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

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

307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions

whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838

S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.

App. 1992).

Therefore, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn from it. See State v. Williams,

657 S.W.2d 405, 410 (Tenn. 1983). All questions involving the credibility of witnesses,

the weight and value to be given the evidence, and all factual issues are resolved by the

trier of fact. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “A jury conviction

removes the presumption of innocence with which a defendant is initially cloaked and

replaces it with one of guilt, so that on appeal a convicted defendant has the burden of

demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982).

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The guilt of a defendant, including any fact required to be proven, may be predicated

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

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

App. 1999). The standard of review for the sufficiency of the evidence is the same whether

the conviction is based on direct or circumstantial evidence or a combination of the two.

See State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

A. Especially Aggravated Burglary and Felony Murder

The Defendant was convicted of especially aggravated burglary and first degree

felony murder in the perpetration of an aggravated burglary. At the time of the offense,

especially aggravated burglary was defined as burglary of a habitation or building other

than a habitation and where the victim suffers serious bodily injury. See Tenn. Code Ann.

§ 39-14-404(a)(1), (2) (2018). For the purposes of this case, “[a] person commits burglary

who, without the effective consent of the property owner: (1) [e]nters a building other than

a habitation (or any portion thereof), not open to the public, with intent to commit a felony,

theft, or assault[.]” Id. at § 39-14-402 (a)(1).

The Defendant’s argument that the evidence is insufficient to sustain his felony

murder and especially aggravated burglary convictions is based solely on his contention

that, as an owner of the residence, he could not be guilty of the burglary of the residence.

The Defendant relies on the definition of “owner” in the burglary statutes:

“Owner” means a person in lawful possession of property whether the

possession is actual or constructive. “Owner” does not include a person, who

is restrained from the property or habitation by a valid court order or order

of protection, other than an ex parte order of protection, obtained by the

person maintaining residence on the property.”

Id. at §39-14-401(3) (emphasis added). The Defendant asserts that he falls under the carve-

out exception to the above definition because he was originally restrained from the property

by the September 26 ex parte order, and a hearing was not held prior to the October 9

amendment to the ex parte order.

We agree with the State that the evidence presented at trial was sufficient for a

rational jury to find that the Defendant was legally restrained from the property by the

terms of the amended order of protection, and thus, that the Defendant did not meet the

statutory definition of owner at the time of the crimes. The jury heard testimony from

Attorney Fowler about the process involved in obtaining an ex parte order of protection,

the meaning of “ex parte,” and that an ex parte order could be obtained without knowledge

of the respondent. The jury also heard testimony that the Defendant was personally served

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with the ex parte petition, order of protection, and notice of the hearing, and that both the

victim and the Defendant, each represented by counsel, appeared in court on the date of the

hearing, where the parties agreed to the amendment to the order. Under the terms of the

amendment, the Defendant was granted only temporary access to the residence to retrieve

his belongings, with the victim to return to the residence after that date. From this evidence,

a rational jury could reasonably conclude that the amended order of protection was “a valid

court order or order of protection” that legally restrained the Defendant from the marital

residence at the time of the crimes, regardless of the absence of a hearing on the petition.

Accordingly, we conclude that the evidence is sufficient to sustain the Defendant’s felony

murder and especially aggravated burglary convictions.

B. First Degree Premeditated Murder

First degree premeditated murder is the “premeditated and intentional killing of

another.” Tenn. Code. Ann. § 39-13-202(a)(1). Premeditation “is an act done after the

exercise of reflection and judgment” and “means that the intent to kill must have been

formed prior to the act itself. [However,] [i]t is not necessary that the purpose to kill

preexist in the mind of the accused for any definite period of time.” Id. at § 39-13-202(e).

Although there is no concrete test for determining the existence of premeditation,

Tennessee courts have relied upon certain circumstances to infer premeditation. See State

v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998). The following factors have been used to

support a jury’s inference of premeditation: (1) the defendant’s prior relationship to the

victim that might suggest a motive for the killing; (2) the defendant’s declarations of intent

to kill; (3) the defendant’s planning activities before the killing; (4) the manner of the

killing, including the defendant’s using a deadly weapon upon an unarmed victim, killing

the victim while the victim is retreating or attempting escape, or killing the victim in a

particularly cruel manner; and (5) the defendant’s demeanor before and after the killing,

including a calm demeanor immediately after the killing. See id. at 914-15; State v. Bland,

958 S.W.2d 651, 660 (Tenn. 1997).

The Defendant contends that, other than his use of a weapon on the unarmed victim,

none of the factors outlined in Bland and other cases support the jury’s finding that he acted

in premeditation. He asserts that the evidence instead suggests that he killed the victim “in

a passionate rage.” In support, he points to “his nearly successful attempts at suicide after

[the victim] had been killed.” The State argues that there was ample evidence from which

the jury could infer premeditation, including the Defendant’s attempts to conceal his

involvement by hiring an Uber driver to drop him off a few houses away, his procurement

of the weapon, his cutting off power to the residence and waiting in darkness for the victim

to arrive home, the multiple stab wounds he inflicted on the unarmed victim, and his failure

to render aid to the victim. We agree with the State.

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Viewed in the light most favorable to the State, the evidence establishes the

Defendant, angered at the victim’s ending of their relationship, hired an Uber driver to take

him to the marital residence to avoid the victim’s being warned of his presence by his

vehicle parked on the street or in the driveway. Once there, the Defendant armed himself

with the knife, shut off the main circuit breaker, and waited in the darkness for the victim

to arrive home from work. When the unsuspecting, unarmed victim reached the front

porch, the Defendant sprang out and attacked her with the knife, stabbing her twice in the

chest and seven more times in the back as she attempted to get away. Afterward, the

Defendant made no attempts to render aid or summon help for the victim but instead

attempted suicide. We disagree that the Defendant’s attempted suicide shows that his

killing of the victim occurred in a state of passion rather than with premeditation.

Accordingly, we affirm the conviction for first degree premeditated murder.

II. Admission of Orders of Protection

The Defendant next contends that the trial court erred by admitting the ex parte and

amended orders of protection, arguing that they were not admissible to show his motive

and intent and that any probative value they held was outweighed by the danger of unfair

prejudice. The State disagrees, arguing that the trial court properly admitted the orders to

show the Defendant’s motive and intent, premeditation, and settled purpose to harm the

victim, and that the probative value was not outweighed by the danger of unfair prejudice.

We agree with the State.

Tennessee Rule of Evidence 404(b) provides that “[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” but “may . . . .be admissible for other purposes.”

The conditions that must be satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear and

convincing; and

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

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Tenn. R. Evid. 404(b). Cases in which other “bad act” evidence of an accused will be

admissible include those in which the evidence is introduced to show motive, intent, guilty

knowledge, identity, absence of mistake or accident, a common scheme or plan, completion

of the story, opportunity, and preparation. See State v. Berry, 141 S.W.3d 549, 582 (Tenn.

2004); see also Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[7][a] (6th ed. 2011).

When the trial court has substantially complied with procedural requirements, the standard

of review for the admission of bad act evidence is abuse of discretion. State v. DuBose,

953 S.W.2d 649, 652 (Tenn. 1997).

After considering the evidence presented at the jury-out pretrial hearing, the trial

court found that both the original and the amended order, the later of which the trial court

referred to as a consent order, met the requirements for admissibility under Tennessee Rule

of Evidence 404(b). The trial court ruled inadmissible the petition for the ex parte order of

protection, finding that it contained inadmissible hearsay. By finding that the orders met

the requirements for admissibility under Rule 404(b), the trial court implicitly found that

the bad act evidence was clear and convincing and that its probative value outweighed the

danger of unfair prejudice. As for the purpose in admitting the evidence, the trial court

stated that it was relying on the holding in State v. Smoot, No. E2017-00367-CCA-R3-CD,

2018 WL 4699046 (Tenn. Crim. App. Oct. 1, 2018), perm. app. denied (Tenn. Jan. 16,

2019), finding that “under the authority of that case . . . orders of protection can be

admissible in these circumstances.”

The trial court in Smoot admitted orders of protection the victim had obtained

against the defendant, finding that they were admissible under Tennessee Rule of Evidence

404(b) “for the purpose of proving identity, motive, intent, and/or premeditation.” Id. at

*17. In our review, we noted that “[o]ur Supreme Court has concluded that ‘violent acts

indicating the relationship between the victim of a violent crime and the defendant prior to

the commission of the offense are relevant to show the defendant’s hostility toward the

victim, malice, intent, and a settled purpose to harm the victim.’” Id. at *19 (quoting State

v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993)). We, therefore, concluded that the trial court

properly admitted the orders of protection themselves, but that it committed harmless error

in admitting the petition for the order of protection because of the inadmissible hearsay it

contained. Id.

Similar to Smoot, the orders of protection in the case at bar were relevant and

admissible to show the Defendant’s intent and premeditation in the killing of the victim.

We reject the Defendant’s argument that there was no causal connection or chain of logical

inferences between the other act evidence and the Defendant’s intent and motive in his

killing of the victim. A relatively short period of time elapsed between the original

September 26 ex parte order of protection, the October 9 amended order of protection, and

the October 19 killing of the victim. We agree with the State that the orders of protection

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obtained by the victim provided a motive for the Defendant to kill the victim and helped to

show that the killing was done after the exercise of reflection and judgment. As the State

points out, both our supreme court and this court have previously concluded that episodes

of domestic violence between a defendant and victim may show a defendant’s motive and

intent in the subsequent killing of a victim. See Smith, 868 S.W.2d at 574; State v. Gilley,

297 S.W.3d 739, 758-59 (Tenn. Crim. App. 2008); Smoot, 2018 WL 4699046, at *19; State

v. Long, No. E2015-01287-CCA-R3-CD, 2017 WL 2958700, at *13 (Tenn. Crim. App.

July 11, 2017), perm. app. denied (Tenn. Nov. 16, 2017). We, therefore, conclude that the

trial court acted within its discretion in admitting the evidence.

III. Sentencing

Lastly, the Defendant contends that the trial court erred by sentencing him to the

maximum in his range for his especially aggravated burglary conviction and ordering that

he serve the sentence consecutively to his life sentence.

At the March 11, 2022 sentencing hearing, the State introduced the presentence

report, which reflected that the forty-three-year-old Defendant had no prior criminal record.

The Defendant reported that he had been born in Morocco, had dropped out of school after

the eighth grade, and had obtained a two-year vocational certificate from Morocco for

tailoring. The Defendant further reported that he had moved from Morocco to the United

States in 2007, living first in Knoxville, then Nashville, and finally in Clarksville, where

he and his wife had purchased the marital residence in May 2018. Unverified employment

information provided by the Defendant was that he had worked as a tailor for Cole Ridge

Tailoring and Value Apparel while in Knoxville, and for D and K Menswear in Nashville,

where he remained employed until the time of his arrest.

The Defendant reported that he had no family in the United States, but that he

regularly spoke by telephone with family members in Morocco and had supportive friends

in the United States, who had raised money for his defense. He reported his mental health

as poor, stating that he suffered from depression and anxiety and had frequent nightmares

about the offense. The Defendant also reported physical health problems, stating that his

arms no longer functioned properly after his suicide attempt and that he suffered from high

blood pressure, high cholesterol, and diabetes. He denied any problems with drugs or

alcohol. He reported that he had been married to the victim for approximately three years

and that their relationship was decent until the victim accused him of “creating a problem

with her immigration status.” The Defendant admitted that he killed the victim by stabbing

her with a kitchen knife but reported that he “blacked out after the first stab.”

There were no witnesses at the sentencing hearing, but the Defendant made an

unsworn statement to the court in which he first said that he was sorry for what he did and

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that “nobody deserves to be hurt or be killed.” He then launched into a history of his

relationship with the victim and what led to the killing, telling the trial court that he wanted

a chance to tell his story. He stated that he met and became engaged to the victim in

Morocco in July 2014, brought her to the United States on a visa on August 29, 2015, and

married her two weeks later. He said the victim at first received a two-year green card and

later applied for a ten-year green card but was instead granted a six-month extension.

The Defendant described how the victim became angry and accused him of

sabotaging her immigration papers, and the resulting deterioration of their marriage, with

his purchasing a lock and beginning to sleep in a separate locked bedroom of the marital

residence. He said that on September 26, 2018, he collected the mail and placed it in his

locked bedroom. He stated that the victim broke into the room and into his locked safe and

stole $11,750. He said he called the police, and the next day the sheriff served him with

the order of protection that required him to immediately leave the marital residence. He

stated that he retained an attorney and went to court, where he learned that the hearing was

being pushed to a later date because the interpreter had another job and the trial judge was

not present.

The Defendant stated that when he received a text from Walmart that his auto-filled

prescriptions were ready, he drove from Nashville to the Clarksville Walmart. At that

point, he decided to go home to search for his stolen money. He stated that he took an

Uber because he was not supposed to be at the marital residence and was afraid someone

would call the police if they saw his vehicle. When he was inside the residence, he saw a

magazine with his attorney’s name and phone number, “lost it,” and decided to wait to talk

to the victim.1 The Defendant said that he did not know what the victim’s relationship was

with his attorney, but that he had filed a complaint against the attorney with the Board of

Professional Responsibility. Finally, the Defendant stated that he wished he had never

gone to his house and that he was sorry.

At the conclusion of the hearing, the trial court found two enhancement factors

applicable: that the Defendant treated the victim with exceptional cruelty during the

commission of the offense; and that the personal injuries inflicted upon the victim were

particularly great. See Tenn. Code Ann. § 40-35-114 (5), (6). The trial court found that

the Defendant’s lack of a prior criminal history possibly applied as a factor in mitigation,

but that it was greatly outweighed by the enhancement factors. Accordingly, the trial court

sentenced the Defendant as a Range I, standard offender to twelve years for the Class B

felony offense of especially aggravated burglary, the maximum sentence in the range.

1

It is not entirely clear from the Defendant’s allocution whether he saw a magazine with his

attorney’s name and number, or a magazine and his attorney’s name and number. Regardless, he expressed

his suspicion about the victim’s having some kind of contact with his attorney.

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Based on the testimony and demeanor of the witnesses, the demeanor of the

Defendant in his unsworn statement, the proof at trial, and the circumstances of the offense,

the trial court found that a consecutive sentence was appropriate and necessary to protect

the public from further criminal acts of the Defendant and reasonably related to the severity

of the offense. The trial court, therefore, ordered the twelve-year sentence for especially

aggravated burglary served consecutively to the life sentence for first degree murder, for a

total effective sentence of life plus twelve years in the Tennessee Department of

Correction.

This court reviews the length, range, and manner of service imposed by the trial

court under an abuse of discretion standard with a presumption of reasonableness. State v.

Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 279 (Tenn.

2012). The trial court is granted broad discretion to impose a sentence anywhere within

the applicable range and the sentencing decision of the trial court will be upheld “so long

as it is within the appropriate range and the record demonstrates that the sentence is

otherwise in compliance with the purposes and principles listed by statute.” Bise, 380

S.W.3d at 709-10. We, likewise, review the trial court’s order of consecutive sentencing

for abuse of discretion, with a presumption of reasonableness afforded to the trial court’s

decision. See State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013) (applying the same

deferential standard announced in Bise, 380 S.W.3d at 682, to the trial court’s consecutive

sentencing decisions).

In determining a defendant’s sentence, the trial court is to consider the following

factors: (1) the evidence, if any, received at the 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 criminal conduct involved; (5)

evidence and information offered by the parties on the mitigating and enhancement factors;

(6) any statistical information provided by the Administrative Office of the Courts as to

sentencing practices for similar offenses in Tennessee; (7) any statement by the Defendant

in his own behalf about sentencing; and (8) the result of the validated risk and needs

assessment conducted by the department and contained in the presentence report. See

Tenn. Code Ann. § 40-35-210(b); see also Bise, 380 S.W.3d at 697-98.

The Defendant first contends that the trial court erred in sentencing him to twelve

years for his especially aggravated burglary conviction, asserting that the trial court

misapplied enhancement factors (5) and (6). The State concedes that enhancement factor

(6) was misapplied because serious bodily injury was an essential element of the offense.

The State argues that the exceptional cruelty enhancement factor was properly applied

based on the evidence of the multiple, violent stab wounds the Defendant inflicted, which

the State asserts reflected “a heightened level of violence for its own sake.” The State

further asserts that, in addition to the physical pain the victim experienced from the multiple

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stab wounds, “the last moments of [her] life would have been strikingly tortuous as she

realized that the defendant was going to continue to attack her, as though hunting an already

wounded animal” and that “[t]hat period of terror was not required for the offense of

especially aggravated burglary.”

We agree with the State. Evidence supporting the application of the exceptional

cruelty enhancement factor requires a finding of cruelty “over and above” what is required

for the offense itself. State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001). This court has

found the exceptional cruelty enhancement factor properly applied in cases in which, as

here, the victim sustained severe injuries, including both physical and emotional, over and

above those required for the underlying offense. See e.g., State v. Gray, 960 S.W.2d 598,

611 (Tenn. Crim. App. 1997) (affirming application of exceptional cruelty enhancement

factor to conviction for especially aggravated kidnapping conviction based on the

defendant’s psychological abuse of the victim); State v. Gadsden, No. M2019-01385-

CCA-R3-CD, 2020 WL 6791251, at *13 (Tenn. Crim. App. Nov. 19, 2011) (affirming

application of exceptional cruelty enhancement factor to convictions for second degree

murder and Class D felony theft of property convictions based on the multiple stab wounds

the defendant inflicted on the victim, including as the victim attempted to flee). As for the

trial court’s misapplication of enhancement factor (6), a “a trial court’s misapplication of

an enhancement or mitigating factor does not invalidate the sentence imposed unless the

trial court wholly departed from the 1989 [Sentencing] Act, as amended in 2005.” Bise,

380 S.W.3d at 706. Because the trial court imposed a within-range sentence consistent

with the purposes and principles of the Sentencing Act, we affirm the twelve-year-sentence

for especially aggravated burglary.

The Defendant next contends that the trial court erred in ordering consecutive

sentencing, arguing that there were no aggravating circumstances to justify the imposition

of consecutive sentences under the dangerous offender factor of the statute. The State

disagrees, arguing that the trial court provided a reasonable justification for consecutive

sentencing based on the multiple stab wounds and the manner in which the wounds were

inflicted. We, again, agree with the State.

A trial court may order that multiple sentences run consecutively if it finds by a

preponderance of evidence that one or more of the seven factors listed in Tennessee Code

Annotated section 40-35-115(b) applies, including factor (4), that 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. Tenn. Code

Ann. § 40-35-115(b)(4). When the trial court bases consecutive sentencing upon its

classification of the defendant as a dangerous offender, it must also find that an extended

sentence is necessary to protect the public against further criminal conduct by the defendant

and that the consecutive sentences reasonably relate to the severity of the offense

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committed. State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson, 905

S.W.2d 933, 937-38 (Tenn. 1995).

In ordering that the Defendant serve his twelve-year sentence consecutively to his

life sentence, the trial court focused on the brutal manner of the multiple-stab wound

killing, finding that the Defendant’s actions evidenced a “complete disregard for the life of

the victim.” The trial court further found that the extended sentence was necessary to

protect the public against further criminal conduct by the Defendant and reasonably related

to the severity of the offense.

The Defendant argues that the trial court ignored the principles of State v. Howell,

34 S.W. 3d 484, 493 (Tenn. 2000), and Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976)

that “crimes must present aggravating circumstances in addition to the inherent nature” of

the crimes in order to warrant consecutive sentencing. The Defendant relies on the

following language from Howell:

In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, considered the most

subjective of the classifications and the most difficult to apply, other

conditions must be present: (a) that the crimes involved aggravating

circumstances; (b) that consecutive sentences are a necessary means to

protect the public from the defendant; and (c) that the term reasonably relates

to the severity of the offenses.

34 S.W.3d at 493. The Defendant cites the following language from Gray: “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.” 538 S.W. 2d at 393.

The Defendant’s reliance on Howell and Gray, however, is of no avail here.

Although it did not use that specific phrase, the trial court, in ordering consecutive

sentences, relied upon the “aggravated circumstances” involved in the offenses, in which

the Defendant stabbed the victim nine times with a knife, including seven times to her back.

Under the circumstances in this case, we conclude that the record supports the trial court’s

imposition of consecutive sentencing.

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CONCLUSION

Based on our review, we affirm the judgments of the trial court.

_________________________________

JOHN W. CAMPBELL, SR., JUDGE

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