IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 27, 2022 Session

STATE OF TENNESSEE v. WALLACE WADE TIDWELL1

Appeal from the Circuit Court for Anderson County

No. B6C00551 Donald Ray Elledge, Judge

___________________________________

No. E2021-00711-CCA-R3-CD

___________________________________

Following a trial, an Anderson County jury convicted Defendant, Wallace Wade Tidwell, 

of aggravated robbery, and Defendant was sentenced, as a career offender, to thirty years’ 

incarceration. On appeal, Defendant contends that the trial court erred in sentencing him 

as a career offender because the State failed to file a proper notice under Tennessee Code 

Annotated section 40-35-202(a). Defendant further contends that the trial court committed 

per se reversible error by instructing jurors that they could not question witnesses. 

Following a thorough review, we affirm the judgment of the trial court. 

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

ROBERT L. HOLLOWAY,JR.,J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and TIMOTHY L. EASTER, J., joined.

Ann C. Short and Donald A. Bosch (at sentencing and on appeal), Knoxville, Tennessee; 

J. Thomas Marshall, Jr., District Public Defender; and Ann D. Coria, Assistant District 

Public Defender (at trial), for the appellant, Wallace Wade Tidwell.

Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant 

Attorney General; Dave S. Clark, District Attorney General; and Anthony Craighead, 

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

 

1

In the original indictment and superseding indictment, Defendant’s name was “Wallace Wade 

Tidwell.” At numerous places in the record, including the notice of appeal, the name “Wallace Wade 

Tidwell III” is used. In the body of the opinion, we will use the name as it appears in the indictment.

07/05/2022
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OPINION

I. Factual and Procedural Background

On July 11, 2017, the Anderson County Grand Jury indicted Defendant for 

aggravated robbery, a Class B felony, in case number B6C00551. The indictment alleged

that Defendant:

on or about June 13, 2015[,] before the finding of this indictment, in the 

County aforesaid, did then and there unlawfully, intentionally, knowingly, 

and violently, take from the person of Theresa Spaw, through the use of a 

deadly weapon, to wit: a gun, in violation of TCA 39-13-402; against the 

peace and dignity of the State of Tennessee.

On August 29, 2017, the State filed a “Notice of Intention to Use Prior Bad Acts for

Impeachment and Enhancement of Sentence” (“August 2017 notice”). In the August 2017 

notice, the State identified Defendant’s prior felony convictions, the dates of those 

convictions, and the courts of conviction, as follows:

CRIMINAL COURT, ANDERSON COUNTY, TENNESSEE:

A4CR0095 Robbery 12-10-04

A4CR0261 Robbery 12-10-04

A9CR0220 Robbery 6-17-10

A9CR-221 Robbery 6-17-10

CRIMINAL COURT, KNOX COUNTY, TENNESSEE:

92133 Robbery (2 counts) 7-16-09

08490 Attempted Aggravated Robbery 2-10-05

76350 Facilitation Poss[.], Mfg., Sale Sch[.] III 2-10-05

80491 Robbery 2-10-05

The August 2017 notice indicated that the State would use any of the above prior 

convictions “for purposes of impeachment and enhancement of sentence.”

On June 5, 2018, the grand jury issued a superseding indictment under the same 

case number that included additional allegations regarding the property taken from the 

victim and the weapon used during the aggravated robbery. Specifically, the superseding 

indictment stated that Defendant:
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on or about June 13, 2015, before the finding of this indictment, in the County 

aforesaid, did then and there unlawfully, intentionally, knowingly, and 

violently, take from the person of Theresa Spaw property, to wit: cash, 

through the use of a deadly weapon or an article used or fashioned to lead 

the victim to believe it to be a deadly weapon, to wit: a gun, in violation of 

TCA 39-13-402; against the peace and dignity of the State of Tennessee.

The State did not file a second notice of enhanced punishment following the issuance of 

the superseding indictment. 

A trial commenced on April 9, 2019. During its preliminary instructions to the jury, 

the trial court stated: “You may not ask questions. It is the responsibility of the attorneys 

to present the evidence. You must decide the case on the evidence presented to you.”2 

Theresa Spaw testified that, on the night of June 13, 2015, she was working as a 

clerk at the Shell gas station on Charles Seivers Boulevard in Clinton. Ms. Spaw stated 

that she was outside smoking a cigarette when Defendant pulled up in his black truck “with 

yellow stripes on it.” Ms. Spaw put out her cigarette and walked back into the store with 

Defendant. Defendant told Ms. Spaw that he needed to use the restroom, and Ms. Spaw 

went behind the check-out counter. Ms. Spaw testified that, when Defendant came out of 

the restroom, he approached her and ordered that she give him the money out of the cash 

register, telling her that he would not hurt her and that “insurance [would] pay for it.” 

When Ms. Spaw hesitated, Defendant lifted his shirt, and she saw the butt of a gun in his 

waistband. Ms. Spaw testified that she believed Defendant had a gun and that it scared her 

“really bad.” She said:

I opened the drawer and pretty much was giving [Defendant] the 

money out of the register and then after I handed it to him he asked me to 

come around the counter. And we have a hallway to go to the restrooms and 

he made me go around the counter and he told me to count to a hundred[.]

Ms. Spaw said, “[I]t really scared me when he wanted me to come around the 

counter. It was like you have got your money, just go. Leave me alone. I did what you 

asked.” She said that she gave Defendant “[t]wenties, tens, fives, [and] ones” from the

cash drawer and that she pushed a panic button when she was gathering the cash out of the

register. She said that police arrived quickly after Defendant fled and that she told them 

what happened. She said that she was “shaking” as she recounted the offense. Ms. Spaw 

 

2 This language is included as “Option A” in the Tennessee Pattern Jury Instructions for general 

opening instructions. T.P.I.—Crim. 1.00. 
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testified that she did not know the exact amount taken from the register until her boss 

arrived at the store following the incident and that it was “around eight hundred dollars.” 

Ms. Spaw explained that the Shell station had video surveillance cameras, and she 

identified two video recordings that depicted the events of June 13. The video recordings

were played for the jury, and Ms. Spaw identified Defendant on the recordings. 

Sergeant Michael Jones of the Clinton Police Department testified that he was on 

patrol on the night of June 13, 2015, checking on local businesses when he pulled into the 

parking lot of the Shell station. Sergeant Jones said that Ms. Spaw ran “from the back of 

the store up to the front of the store with a scared look on her face[,]” and she told him that 

she had “just been robbed.” He testified that Ms. Spaw was shaking as she recounted what 

happened. Sergeant Jones notified police dispatch and began collecting additional 

information from Ms. Spaw, including a description of the suspect. He shut down the store 

and did not let anyone enter the premises. He also instructed Ms. Spaw to contact the 

owner of the store so that detectives could have access to the video surveillance cameras 

at the store. Sergeant Jones said that detectives arrived at the scene about thirty minutes

later. On cross-examination, Sergeant Jones stated that he could not recall if Ms. Spaw 

said that the suspect had a weapon but agreed that his report regarding the robbery did not 

include a mention of a weapon. 

Chief Vaughn Becker of the Clinton Police Department testified that he responded 

to the Shell station where he took photographs and collected evidence. Chief Becker said 

that he reviewed the video recordings of the robbery from the store. From the video

recordings, Chief Becker observed that the suspect’s vehicle was unique; it was a black 

truck with a “bright yellow strip down it.” Chief Becker said that he and other officers

drove around a “circuit” of hotels looking for the truck and found it at the Scottish Inn on 

Callahan in Knoxville about an hour after the offense. 

At the Scottish Inn, Chief Becker spoke to the hotel clerk and learned Defendant’s 

room number. Chief Becker said that he and Sheriff Russell Barker knocked on the door 

and tried, unsuccessfully, to get Defendant to open the door and come out. They called out 

officers from the Knoxville Police Department, and several hours later, they unlocked the 

door and made entry into the hotel room. Chief Becker stated that, during a search of the 

room, he found a screwdriver in a belt. They also found cash, including thirty-four dollars 

in his wallet and four hundred ninety dollars “in loose cash between the mattress and box 

springs.” Chief Becker testified that Defendant was arrested and taken to the Clinton Police 

Department for an interview. 

Anderson County Sheriff Russell Barker testified that, at the time of the offense, he 

worked as a detective sergeant with the Clinton Police Department. Sheriff Barker said
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that he responded to the scene at the Shell station where he interviewed Ms. Spaw. He 

recalled that Ms. Spaw was “rattled” and “very shaken by what she had experienced.” Ms. 

Spaw provided a description of the suspect, and after their preliminary investigation at the 

scene, Sheriff Barker and Chief Becker decided to check hotels within the city limits and 

further down the interstate. Sheriff Barker stated that he located the suspect’s truck in a 

parking lot of a hotel off Callahan. Sheriff Barker ran the tag on the truck and learned that 

it was registered to Defendant. After speaking to the hotel clerk, Sheriff Barker discovered 

that Defendant was a registered guest at the hotel. Sheriff Barker went to Defendant’s hotel 

room and knocked on the door. He testified, “[Defendant] came to the door and did not 

answer it, but he pulled the curtain back to the side and he and I had a brief conversation[.]” 

Sheriff Barker positively identified Defendant as the robbery suspect that he observed on 

the footage from the video surveillance cameras at the Shell station. Sheriff Barker testified 

that, despite numerous attempts by law enforcement to get Defendant to exit the hotel 

room, Defendant would not open the door. He said that officers entered the room using a 

key about two and a half hours later and that Defendant was taken into custody. 

Sheriff Barker testified that he interviewed Defendant at the Clinton Police 

Department after Defendant waived his Miranda rights. He said that the interview had 

been recorded, and the video recording of Defendant’s interview was played for the jury. 

In his interview, Defendant said that he was suicidal, on drugs, and driving around when 

he stopped at the Shell station in Clinton and demanded money from the clerk. After the 

clerk complied, Defendant asked her to go to the back of the store. He said that he told the 

clerk that he would not hurt her and that the money was insured. He said that the clerk did 

as he asked and that he left the store and drove to the Scottish Inn where he waited on law 

enforcement. Defendant said that he had wanted police to kill him.

On cross-examination, Sheriff Barker agreed that, during the interview, Defendant

told him that his mental state was not good and that he had wanted the police to kill him. 

Defendant also told him that he had not taken his medication for “some time.” Sheriff 

Barker was shown a photograph of the screwdriver found in Defendant’s hotel room and 

was asked, “Have you ever seen, in your law enforcement experience, a gun handle that 

was rounded on the end like that?” He responded, “Actually I have. Like a derringer. 

They tend to be kind of round, the handles, and . . . you can change those handles and grips

out to give them different looks.”

Following deliberations, the jury found Defendant guilty as charged.

On July 10, 2019, the State filed a “Notice of Enhancement Factors[,]” which stated

that Defendant:
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pursuant to T.C.A. 40-35-114, meets the following enhancement factor(s) for 

purposes of sentencing:

1. [] Defendant has a previous history of criminal convictions 

or criminal behavior, in addition to those necessary to establish 

the appropriate range. The State submits [D]efendant is a 

CAREER OFFENDER[.]

CRIMINAL COURT, ANDERSON COUNTY, TENNESSEE:

Date of Offense Date of Conviction

A4CR0095 Robbery 10-16-03 12-10-04

A4CR0261 Robbery 6-25-04 12-10-04

A9CR0220 Robbery 1-24-09 6-17-10

A9CR0221 Robbery 1-24-09 6-17-10

CRIMINAL COURT, KNOX COUNTY, TENNESSEE:

Date of Offense Date of Conviction

92133 Robbery[] 1-23-09 7-16-09

92133 Robbery[] 1-23-09 7-16-09

08490 Att[.] Agg[.] Robbery 6-25-04 2-10-05

80491 Robbery 6-25-04 2-10-05 

76350 Att[.] Poss[.], Mfg., 9-11-01 2-10-05

Sale Sch[.] III

[D]efendant is convicted of Aggravated Robbery. A Class B Felony. 

[D]efendant has six (6) separate Class C felony convictions. This places him

in the Career Offender class. Therefore, the State is asking that he be 

sentence[d] to thirty years (30) in the Tennessee Department of Correction[]. 

This is to be served at 60%.

On November 15, 2019, Defendant filed a “Motion to Strike State’s July 10, 2019, 

Notice that Defendant [] is a Career Offender and Request for Sentencing as a Range I 

Standard Offender.” In the motion to strike, Defendant argued that the original indictment 

in the case was “fatally flawed” because it failed to allege that anything was taken from the 

victim and “factually flawed” because it alleged that Defendant used a gun to commit the 

offense. Defendant asserted that, although the superseding indictment cured the flaws in 

the original indictment, the State did not file a new notice of its intention to seek sentencing 

of Defendant as a career offender until months after Defendant’s trial. Defendant argued 

that, pursuant to Tennessee Code Annotated section 40-35-202(a), “the [State’s] July 10, 
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2019 notice is ineffective to allow this Court to impose any sentence outside the standard 

offender range.” Defendant asserted that the State’s August 2017 notice “related to the 

original indictment . . . not the superseding indictment upon which [Defendant] was tried”

and because the original indictment did not charge an offense, the August 2017 notice “was 

a nullity.” He further asserted that the August 2017 notice failed to provide required 

information and contained no clear expression of the State’s intention to seek sentencing 

outside of the standard offender range. Finally, Defendant argued that empirical evidence 

from court filings in the district demonstrated that the August 2017 notice was not intended 

or designed to operate as a notice of enhanced punishment. 

The State filed a response, arguing that the August 2017 notice was effective 

because it put Defendant on notice that the State intended to seek enhanced punishment 

under the superseding indictment, which charged the same offense as the original 

indictment. The State also argued that the notice substantially complied with the 

requirements in Tennessee Code Annotated section 40-35-202(a). The State asserted that 

its “Notice of Enhancement Factors[,]” filed on July 10, 2019, was intended to be a posttrial sentencing brief for the court. 

At a sentencing hearing, the State presented Defendant’s presentence report through 

the testimony of a probation officer, which included a statement from Ms. Spaw regarding 

the negative effects the robbery had on her. The State additionally presented certified 

copies of Defendant’s prior felony convictions.

3

 Following argument of counsel, the trial 

court denied Defendant’s motion to strike, finding that the State’s August 2017 notice of 

enhanced punishment was effective and that it substantially complied with the 

requirements of the notice statute. The trial court further found that, for purposes of 

sentence enhancement, Defendant had prior felony convictions for five counts of robbery 

and one count of attempted aggravated robbery—all Class C felonies. Accordingly, the 

court sentenced Defendant, as a career offender, to serve thirty years in the Tennessee 

Department of Correction with an eighty-five percent release eligibility. See Tenn. Code 

Ann. §§ 40-35-108(a)(1), (c); 40-35-112(c)(2); 40-35-501(k)(1) (2021).

Defendant filed a timely motion for new trial, in which Defendant argued, among 

other things, that the trial court erroneously instructed the jury that it could not ask 

questions of witnesses. Following a hearing, the trial court denied the motion for new trial

in a written order. This timely appeal follows.

 

3 Defendant offered as an exhibit certified copies of notices that had been filed in other Tennessee 

jurisdictions, namely Marshall County, Wilson County, Knox County, Shelby County, and Davidson 

County. In separate exhibits, Defendant presented a list and examination of all Anderson County Circuit 

Court criminal cases from 2018, wherein the State filed the same-type notice as filed in Defendant’s case. 

The trial court ruled that these exhibits were not relevant and received them for identification purposes 

only. 
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II. Analysis

A. Notice Under Tennessee Code Annotated Section 40-35-202(a)

Defendant contends that the trial court erred in sentencing him as a career offender

because the State failed to provide adequate pretrial notice of its intent to seek enhanced 

punishment under Tennessee Code Annotated section 40-35-202(a). Defendant argues that 

the State’s August 2017 notice was a nullity because the original indictment failed to 

charge an offense and that the State was required to file a new notice after the superseding 

indictment was issued. Defendant further argues that the August 2017 notice failed to 

contain the information required by section 40-35-202(a) and that it contained no clear 

expression of the State’s intention to seek sentencing outside of the standard offender 

range. He asserts, therefore, that he is entitled to resentencing as a standard Range I 

offender. 

The State responds that the trial court properly sentenced Defendant as a career 

offender. The State argues that the August 2017 notice was not a nullity, that it 

substantially complied with the relevant statute, and that Defendant failed to show 

prejudice.

Tennessee Code Annotated section 40-35-202(a) provides as follows:

If the district attorney general believes that a defendant should be sentenced 

as a multiple, persistent or career offender, the district attorney general shall 

file a statement thereof with the court and defense counsel not less than ten 

(10) days before trial or acceptance of a guilty plea; provided, that notice may 

be waived by the defendant in writing with the consent of the district attorney 

general and the court accepting the plea. The statement, which shall not be 

made known to the jury determining the guilt or innocence of the defendant 

on the primary offense, must set forth the nature of the prior felony 

convictions, the dates of the convictions and the identity of the courts of the 

convictions.

Tenn. Code Ann. § 40-35-202(a) (2021). 

As our supreme court has explained:

The purpose of the statutory notice of intent to seek enhanced sentencing is 

to (a) provide fair notice to an accused that he/she is exposed to other than 

standard sentencing, (b) to facilitate plea bargaining, (c) to enable the 
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accused to make an informed decision before entering a guilty plea, and (d) 

to a certain extent, to aid in trial strategy.

State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006) (citing State v. Adams, 788 S.W.2d 

557, 559 (Tenn. 1990); State v. Taylor, 63 S.W.3d 400, 412 (Tenn. Crim. App. 2001)). In 

Livingston, our supreme court held that the notice statute requires the State to file a (1) 

“written notice,” (2) “clearly expressing the State’s intention to seek sentencing outside of 

the standard offender range,” (3) “setting forth the nature of the prior felony conviction, 

the dates of the convictions, and the identity of the courts of the convictions.” Livingston, 

197 S.W.3d at 713-14 (citing Tenn. Code Ann. § 40-35-202(a)). This court has concluded 

that a notice satisfies its purposes when the defendant is not misled or surprised by the 

State’s decision to seek enhanced sentencing. See State v. Chase, 873 S.W.2d 7, 9 (Tenn.

Crim. App. 1993). 

When a detail of the required information in a notice is omitted or incorrect, “the 

inquiry should be whether the notice was materially misleading.” Adams, 788 S.W.2d at 

559. Moreover, when the State has “substantially complied” with the notice requirement, 

the defendant has a duty “to inquire about any ambiguities in the notice and to show that 

any problem with the notice prejudiced the defendant.” State v. Williams, 558 S.W.3d 633, 

640 (Tenn. 2018) (citing State v. Patterson, 538 S.W.3d 431, 438 (Tenn. 2017)); see also

Adams, 788 S.W.2d at 559. However, “[i]f a notice document is so defective as to amount 

to no notice at all, then the State has not met its burden, and the defendant does not have to 

show prejudice.” Williams, 558 S.W.3d at 640 (citing Adams, 788 S.W.2d at 559). The 

sufficiency of the State’s notice of enhanced punishment is a question of law subject to de 

novo review. Id. at 639.

When a superseding indictment charges a defendant with the “same crime,” the 

State is not required to file a new notice of enhanced punishment. Livingston, 197 S.W.3d 

at 714; State v. Carter, 121 S.W.3d 579, 584-86 (Tenn. 2003); Chase, 873 S.W.2d at 9. As 

explained by our supreme court, “where both indictments charge the same crime, the 

defendant has no reason to believe enhanced sentencing would not apply to a conviction 

under either indictment.” Carter, 121 S.W.3d at 586. Whether a notice of enhanced 

punishment is effective following the issuance of a superseding indictment is a question of 

law subject to de novo review. Livingston, 197 S.W.3d at 712; Carter, 121 S.W.3d at 584.

1. Original and Superseding Indictments

Defendant first contends that the original indictment in this case was fatally flawed

and failed to state an offense because it omitted an element of the offense, i.e., it did not

specify what was taken from the victim. However, the original indictment was not 

defective simply because it failed to specify that cash was taken from the victim. Our 
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supreme court has determined that specific reference to the statute defining an offense is 

sufficient to place a defendant on notice of the offense with which he is charged. State v. 

Duncan, 505 S.W.3d 480, 488 (Tenn. 2016) (citing State v. Hammonds, 30 S.W.3d 294,

300 (Tenn. 2000)). Here, the original indictment cited the statute defining aggravated 

robbery, which was constitutionally sufficient to give Defendant notice of the charged 

offense. See e.g., Charles A. Guess v. Shawn Phillips, Warden, No. W2019-01347-CCAR3-HC, 2020 WL 1875233, at *2 (Tenn. Crim. App. Apr. 15, 2020) (holding that an 

indictment put the defendant on notice that he was being charged with especially 

aggravated robbery because it cited the statute defining the offense), perm. app. denied

(Tenn. Sept. 14, 2020). Accordingly, Defendant’s contention that the August 2017 notice 

was a nullity is unavailing. 

Moreover, the superseding indictment in this case was clearly a re-indictment 

charging Defendant with the same crime as in the original indictment. Both indictments 

were filed under the same case number; they applied to the same victim, the same offense 

date, and same defendant and charged the same crime of aggravated robbery. Thus, the

August 2017 notice, filed in the original indictment, gave Defendant fair warning that the 

State intended to seek an enhanced sentence for that crime. See Chase, 873 S.W.2d at 9.

2. Substantial Compliance

Upon review of the August 2017 notice, we agree with the trial court that it 

substantially complied with Tennessee Code Annotated section 40-35-202(a). It was a 

written notice that clearly expressed the State’s intent to use Defendant’s prior convictions 

“for purposes of . . . enhancement of sentence.” It set forth the nature of the prior felony 

convictions, the case numbers, the dates of conviction, the courts of the convictions, and 

the notice was filed over a year and a half before Defendant’s trial. While Defendant 

correctly points out that the State did not specify in the notice what offender status it was 

seeking, the notice listed enough prior convictions to qualify Defendant as a career 

offender. Based on the information provided in the August 2017 notice, defense counsel 

would have been able to ascertain Defendant’s offender status if convicted of aggravated 

robbery as charged in the indictment. See Tenn. Code Ann. § 40-35-108 (setting forth 

definition of career offender). Moreover, this court has previously found substantial 

compliance in cases where the notice does not specify which enhanced offender 

classification the State intends to seek but does identify the prior convictions the State 

intends to rely. See, e.g., State v. Justin Hadley, No. W2014-00985-CCA-R3-CD, 2015 

WL 5001166, at *6 (Tenn. Crim. App. Aug. 21, 2015) (finding substantial compliance 

where generic notice form did not identify range but did contain the defendant’s prior 

convictions), perm. app. denied (Tenn. Aug. 21, 2015); State v. Norman Branch, No. 

W2013-00964-CCA-R3-CD, 2014 WL 3744322, at *11-12 (Tenn. Crim. App. July 28, 

2014) (finding substantial compliance where notice did not identify range but did contain 
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prior convictions), perm. app. denied (Tenn. Dec. 19, 2014); State v. Ronnie R. Charleston, 

No. M2005-02255-CCA-R3-CD, 2007 WL 57074, at *10 (Tenn. Crim. App. Jan. 5, 2007) 

(finding substantial compliance where notice did not specify range sought by the State but 

listed prior convictions), perm. app. denied (Tenn. June 18, 2007).

Defendant argues that the August 2017 notice did not comply with section 40-35-

202(a) because it failed to contain the offense classification for each of his prior 

convictions, failed to “identify precisely which convictions might trigger sentencing 

outside the standard offender range,” and failed to cite to the relevant statute. The notice 

statute, however, does not require that level of specificity. See Tenn. Code Ann. § 40-35-

202(a) (2021); Livingston, 197 S.W.3d at 713-14. Defendant also argues that the August 

2017 notice was deficient because the State combined the notice with its notice of 

impeachment. Although filing a separate, properly captioned notice of enhanced 

punishment is “the better practice,” our supreme court has repeatedly “decline[d] to 

mandate a particular form” because the notice statute itself “does not prescribe a particular 

form[.]” Patterson, 538 S.W.3d at 442.

 

Finally, Defendant argues that the State’s notice did not clearly express the State’s 

intention to seek sentencing outside of the standard offender range, asserting that the

notice’s reference to “‘enhancement of sentence’ . . . logically refers to enhancement within 

the range.” We cannot agree with this interpretation of the State’s notice. First, it is 

inconsistent with the language of the Sentencing Commission Comments for section 40-

35-202, which explains that “[s]ubsection (a) requires that the district attorney general file 

a notice with the court and defense counsel setting forth the nature of any prior convictions 

which will later be utilized for sentencing enhancement purposes.” Tenn. Code Ann. § 40-

35-202, Sentencing Comm’n Cmnts. It is also inconsistent with language used in prior 

opinions discussing similar notices under section 40-35-202(a). See, e.g., Livingston, 197 

S.W.3d at 712 (explaining the purpose of the statutory notice of “intent to seek enhanced 

sentencing”); Carter, 121 S.W.3d at 591 (holding that “the notice of intent to seek 

enhanced sentencing” was sufficient as to defendant’s possession charge); Taylor, 63 

S.W.3d at 413 (holding that “enhanced punishment” in the State’s notice “logically means 

punishment as a multiple, persistent, or career offender”); State v. Jonathan C. Buckner, 

No. M2016-01162-CCA-R3-CD, 2017 WL 3476068, at *17 (Tenn. Crim. App. Aug. 14, 

2017) (noting that the title of the State’s notice “show[ed] that the purpose was to provide 

notice to the defense of the intention to seek an enhanced sentence upon conviction”), 

perm. app. denied (Tenn. Dec. 6, 2017). Finally, Defendant’s interpretation is inconsistent 

with the fact the State is not required to give pretrial notice for purposes of enhancement 

within a sentence range. See Tenn. Code Ann. § 40-35-114 (2021). 

Because we conclude that the State’s notice substantially complied with Tennessee 

Code Annotated section 40-35-202(a), the burden shifted to Defendant to “inquire about 
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any ambiguities in the notice and to show that any problem with the notice prejudiced the 

defendant.” Williams, 558 S.W.3d at 640. The record, however, does not reflect that 

Defendant sought to clarify any ambiguities in the August 2017 notice. Additionally, 

Defendant did not dispute the accuracy of the convictions listed in the notice, and he has 

failed to establish that he was prejudiced by any alleged defect in the notice. Defendant is 

not entitled to relief. 

B. Juror Questions

Defendant contends that the trial court erred when it instructed the jurors that they 

may not ask questions. He contends that the trial court’s instruction was per se error and 

that prejudice should be presumed. The State responds that the trial court properly 

exercised its discretion by prohibiting jurors from questioning witnesses. 

The practice of permitting jurors to ask questions of witnesses during trial was once 

strongly disfavored in this state, with our courts once “describing the procedure as ‘a 

perilous practice which trial courts should scrupulously avoid.’” State v. James, 315 

S.W.3d 440, 458 (Tenn. 2010) (quoting Branch v. State, 469 S.W.2d 533, 534 (Tenn. Crim.

App. 1969)). However, in 2003, the Tennessee Rules of Criminal Procedure were amended

to include Rule 24.1(c), which provides that a trial court “may permit a juror to ask a 

question of a witness” and prescribes a procedure for the submission of juror questions:

(1) Written Submission of Questions. The juror shall put the question in 

writing and submit it to the judge through a court officer at the end of a 

witness’ testimony. A juror’s question shall be anonymous and the juror’s 

name shall not be included in the question.

(2) Procedure After Submission. The judge shall review all such questions 

and, outside the hearing of the jury, shall consult the parties about whether 

the question should be asked. The judge may ask the juror’s question in 

whole or part and may change the wording of the question before asking it. 

The judge may permit counsel to ask the question in its original or amended 

form in whole or part.

(3) Jury Instructions. When juror questions are permitted, the court shall 

instruct jurors early in the trial about the mechanics of asking a question and 

to give no meaning to the fact that the judge chose not to ask a question or 

altered the wording of a question submitted by a juror.

Tenn. R. Crim. P. 24.1(c)(1)-(3); see also James, 315 S.W.3d at 458 (noting that the 

adoption of Rule 24.1(c) changed the policy of discouraging questions by jurors). The 
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Advisory Commission Comment for Rule 24.1 states that Rule 24.1(c) “gives the court the 

discretion to allow jurors to ask questions of witnesses” and explains that the rule was 

“designed to assist jurors in their understanding of evidence and to make them feel more 

involved in the trial process.” Tenn. R. Crim. P. 24.1, Advisory Comm’n Cmnt. 

“Generally, the propriety, scope, manner and control of the examination of 

witnesses is a matter within the discretion of the trial judge, subject to appellate review for 

abuse of discretion.” James, 315 S.W.3d at 460 (internal quotations omitted). A reviewing 

court will not find error “[a]bsent a clear abuse of the discretionary authority of the trial 

judge, one that manifestly prejudices the rights of a defendant[.]” Id. An abuse of 

discretion occurs when the trial court applies an incorrect legal standard, reaches an 

illogical conclusion, bases its decision on a clearly erroneous assessment of the evidence, 

or employs reasoning that causes an injustice to the complaining party. State v. Clark, 452 

S.W.3d 268, 287 (Tenn. 2014) (citing State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). 

Defendant contends that the trial court committed per se reversible error by not 

allowing jurors to ask questions of witnesses. By its plain language, Rule 24.1(c) grants 

the trial court the discretion to permit a juror to ask a question of a witness; it does not 

mandate that the court allow such questioning, however. Tenn. R. Crim. P. 24.1(c). The 

trial court’s instruction that jurors may not ask questions is consistent with the court’s 

discretionary authority under Rule 24.1(c) and consistent with the trial court’s discretion 

in the “propriety, scope, manner and control of the examination of witnesses[.]” James, 

315 S.W.3d at 460. 

Defendant asserts that the trial court’s discretion under Rule 24.1(c) is limited to the 

“form and substance of the questions” from jurors. We disagree. Rule 24.1(c) vests trial 

courts with the authority to “permit a juror to ask a question of a witness” and then sets out 

the procedure that must be followed if a court allows jurors to submit questions. Tenn. R. 

Crim. P. 24.1(c)(1)-(2). Finally, the rule states that, “[w]hen questions are permitted[,]” a 

trial court must provide jurors with preliminary instructions on the mechanics of submitting 

questions. Tenn. R. Crim. P. 24.1(c)(3). The trial court’s discretion under Rule 24.1(c) 

clearly extends to allowing or disallowing a juror to ask a question of a witness. Defendant 

also asserts that the trial court was “required to place on the record the reasons for any 

decision to tell jurors that they may not ask questions.” Defendant cites no authority for 

this proposition, and we find none. The trial court acted within its discretion when it 

instructed jurors that they may not ask questions, and Defendant is not entitled to relief. 
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III. Conclusion

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

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE