IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 27, 2024 Session

JAY WILLIAM EDWARDS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 120370 Hector Sanchez, Judge

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No. E2023-00410-CCA-R3-PC

___________________________________

The Petitioner, Jay William Edwards, appeals from the denial of his petition seeking postconviction relief from his convictions of aggravated kidnapping, assault, and interfering 

with an emergency call, for which he received an effective sentence of ten years’ 

confinement. On appeal, he argues: (1) trial counsels were ineffective in failing to object 

to (a) a constructive amendment to the indictment and (b) an incomplete White instruction;

1

and (2) he was deprived of his right to testify at trial.2 After review, we affirm the 

judgment of the post-conviction court.

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

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

WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Tyler M. Caviness, Knoxville, Tennessee, for the appellant, Jay William Edwards.

Jonathan Skrmetti, Attorney General and Reporter; Abigail H. Rinard, Assistant Attorney 

General; Charme P. Allen, District Attorney General; and Sean McDermott, Assistant 

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

OPINION

On the night of September 14, 2017, the Petitioner held his wife captive in their 

home and struck her repeatedly, threatened her with a gun, and attempted to prevent her 

from contacting the police. State v. Edwards, No. E2019-02176-CCA-R3-CD, 2021 WL 

2554217, *1-10 (Tenn. Crim. App. June 22, 2021), perm. app. denied (Tenn. Nov. 17, 

 

1 State v. White, 362 S.W.3d 559 (Tenn. 2012).

2 We have reordered the Petitioner’s issues for clarity.

07/05/2024
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2021). His wife suffered a cracked rib and extensive bruising to her face and body. The 

Petitioner was charged with especially aggravated kidnapping in Counts 1 and 2, 

aggravated kidnapping in Count 3, aggravated assault in Counts 4, 5, and 6, interfering 

with an emergency call in Count 7, and domestic assault in Count 8. At trial, a Knox 

County jury convicted the Petitioner of the lesser included offense of aggravated 

kidnapping in Counts 1 and 2, aggravated kidnapping in Count 3, the lesser included 

offense of assault in Counts 4, 5, and 6, interfering with an emergency call in Count 7, and 

domestic assault in Count 8. The trial court merged Counts 1, 2, and 3 into a single 

aggravated kidnapping conviction.

The Petitioner filed a direct appeal complaining of several alleged errors, including 

constructive amendments to the indictment and an incomplete White instruction. Id. at 

*14-18. Because the Petitioner failed to object to the jury instructions or raise those issues 

in his motion for new trial, this court reviewed for plain error and determined that the 

Petitioner was not entitled to relief. Id. The Petitioner did not allege that he was deprived 

of his right to testify at trial. This court affirmed the Petitioner’s convictions but remanded 

for entry of corrected judgments reflecting the merger of the convictions in Counts 4, 5, 6, 

and 8 into a single assault conviction. Id. at *1.

The Petitioner filed a petition for post-conviction relief, which was amended after 

he was appointed counsel. As relevant to this appeal, the amended petition alleged that he 

was deprived of his right to the effective assistance of counsel because trial counsels denied 

him the opportunity to testify at trial and “ineffectively handled issues involving the 

constructive amendment to the indictment and [the] deficiency of the White instruction 

given to the jury.” 

Post-Conviction Hearing. The post-conviction court held an evidentiary hearing

on February 10, 2023. At the hearing, the Petitioner’s trial counsels, referred to as first 

counsel and second counsel, and the Petitioner testified. The trial court record was 

admitted and showed that during the Momon hearing, the Petitioner did not announce 

whether he was waiving his right to testify.3 At the end of the second day of trial, the trial 

court directed trial counsels to address the requirements of Momon and the following 

exchange occurred:

[First Counsel:] . . . [W]e’ve had many discussions in this case about 

whether you will testify or not in this case, have we not?

[Petitioner:] Yes, we have.

 

3 Momon v. State, 18 S.W.3d 152 (Tenn. 1999).
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[First Counsel:] Okay. And you understand the pros and cons of doing 

both of those things?

[Petitioner:] Correct.

[First Counsel:] You’ve been fully advised of what could happen if you 

testify and what could happen if you don’t testify by 

your attorneys, haven’t you?

[Petitioner:] Correct.

[First Counsel:] Okay. And you understand that is your [c]onstitutional 

right not to testify if you don’t want to testify?

[Petitioner:] Yes, I do.

[First Counsel:] Okay. And you also understand that it is your sole 

discretion. Your attorneys cannot force you to testify. 

The DAs cannot force you to testify. It’s in your sole 

discretion to decide whether you’re going to or not?

[Petitioner:] Correct.

[First counsel:] Okay. Does he need to make that decision now, Your 

Honor?

[Trial Court:] No.

[First Counsel:] Okay. Is that satisfactory questioning, Your Honor?

[Trial Court:] Would you explain the jury instruction I’ll give if he 

doesn’t?

[First Counsel:] Okay. Excellent point, Your Honor. . . . And Your 

Honor – the Judge touched on it just a second ago, that 

– and we touched on it in voir dire, when I was talking 

to them – that if you decide not to testify, the Judge will 

instruct them that there is to be no negative inference 

drawn by your decision not to testify. And you’re aware 

of that?
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[Petitioner:] Yes, I am.

The court adjourned for the day. The following morning, the parties did not resume the 

hearing and first counsel announced that the defense would not be putting on any proof.

Second counsel testified that the Petitioner’s trial was his first trial as a licensed 

attorney. He graduated law school approximately one year before the trial and was working 

as an associate for first counsel. Approximately fifteen percent of first counsel’s cases 

were criminal. The Petitioner initially hired first counsel to represent him in a family law 

matter, but later hired him in this criminal case. Second counsel handled the majority of 

the research, writing, and discovery review in this case. He prepared a trial notebook 

containing questions for each witness, anticipated testimony, and exhibits, and reviewed it 

with first counsel. Because the proof of the misdemeanor charges was strong, their strategy 

was to focus on the lack of direct evidence to support the felony charges. 

Second counsel recalled meeting with the Petitioner at least three times to prepare 

his testimony. Trial counsels’ billing records were admitted and showed two testimony 

preparation meetings lasting more than two hours, though second counsel said he 

“underbilled [the Petitioner] quite a bit.” He and the Petitioner practiced both direct and 

cross-examination questions. He explained to the Petitioner on multiple occasions that 

whether to testify was his decision alone. He could not recall the Petitioner ever saying 

whether he was going to testify. Though he included the Petitioner on the witness list, that 

did not necessarily mean the Petitioner was planning to testify. Based on their discussions, 

second counsel believed the Petitioner would have testified that the victim had broken her 

own rib, which “would [have been] pretty detrimental in the eyes of the jury.” He could 

not recall specifically asking the Petitioner during trial if he wanted to testify, but doing so

was “sort of just an automatic thing to [him].” He recalled having a Momon hearing but 

did not recall that the Petitioner did not announce whether he would testify.

When asked about the jury instructions, second counsel said his focus was ensuring 

they included the federal definition of beyond a reasonable doubt and the White instruction. 

The White instruction was included, just not for every count. During closing arguments, 

they highlighted the portion of the White instruction that was relevant to the jury’s 

deliberation. He did not think he and first counsel ever discussed whether there was a 

constructive amendment to the indictment, and there was no tactical decision made not to 

object.

On cross-examination, second counsel acknowledged that if the Petitioner testified 

at trial, there were unfavorable facts that could have been introduced on cross-examination, 

including facts from the Petitioner’s three prior divorce proceedings. When asked whether 

he, first counsel, or their intern decided that the Petitioner would not testify, he responded, 
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“Absolutely not.” He agreed that in past legal proceedings, the Petitioner was not “timid 

or reserved in asserting [his] rights.” After the trial, the Petitioner never questioned why 

he did not testify. Second counsel first learned that the Petitioner believed he was 

prevented from testifying when he filed his amended petition for post-conviction relief. 

First counsel testified that he began practicing law in 2007 and at the time of the 

trial, about seventy to eighty percent of his practice was criminal defense. The Petitioner’s 

trial was his fourth or fifth criminal trial. The Petitioner hired first counsel to represent 

him in his divorce proceedings, and later hired him in this criminal case. First counsel 

focused primarily on the divorce and related proceedings. Second counsel did most of the 

“leg work” in this case, including discovery review and pretrial preparations. Their internal 

strategy was to seek acquittals on the greater offenses. 

First counsel did not recall any conversations with the Petitioner about whether he 

would testify at trial but said they must have occurred. He did not remember whether the 

Petitioner expressed a desire to testify. At the divorce proceeding, the Petitioner invoked 

his Fifth Amendment privilege and did not testify about the facts underlying this case. First 

counsel recalled having a Momon hearing but did not recall whether the Petitioner 

articulated a desire to testify during it. At the end of the second day of trial, he assumed 

the Petitioner was not going to testify but did not recall why he assumed so. He did not 

recall any conversations with the Petitioner the next morning about testifying.

First counsel said he reviewed the indictment and did not notice any legal issues. 

Reviewing the jury instructions would have been second counsel’s responsibility. If there 

was an issue with the jury instruction, they did not make a tactical decision not to object.

On cross-examination, first counsel said he “was not worried about [the Petitioner] 

testifying” and “thought it would have been fine.” His default was to have his clients 

testify, and he did not recall ever advising the Petitioner that he should not testify. He did 

not make the decision that the Petitioner was not going to testify. First counsel did not see 

the Petitioner after trial and did not learn that he believed he was deprived of his right to 

testify until he filed the amended petition for post-conviction relief. When asked if there 

was any tactical decision to “[shy] away” from objections, he said the trial court “made 

some sort of ruling or comment that made [them] realize it might be best to back off some 

of the jumping up and down [they] would typically do[.]” On redirect examination, he 

clarified that they would have made any objections that would “fundamentally affect the 

outcome.”

The Petitioner testified that he earned a Ph.D. in leadership and was formerly an

associate professor at Lincoln Memorial University. At the time of the offense, he and the 

victim had been married for three years and had a three-month-old son. The Petitioner 
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began detailing the day of the offense and the State objected to its relevance. Postconviction counsel argued that he needed to present the testimony the jury would have 

heard but for the deprivation of his right to testify or his right to the effective assistance of 

counsel. Upon the State’s suggestion, the post-conviction court agreed to limit the 

Petitioner’s testimony to the “conversations around whether or not to testify, not the actual 

testimony” and determine later if additional testimony was necessary. 

The Petitioner said he expressed a desire to testify as soon as he hired trial counsels. 

He remembered meeting with them at least twice to prepare his testimony. During those 

meetings, they asked him potential cross-examination questions to see how he would 

respond. He was “extremely adamant” about testifying and never wavered. He felt like 

whether to testify was his choice, and trial counsels did not try to pressure him in either 

direction. During the Momon hearing, he thought he was announcing his decision to testify 

when he responded, “Yes, I am” when the court asked him if he knew whether to testify 

was his decision. After that, however, the court indicated that he did not have to decide 

until the next day. That night, he told trial counsels he was ready to testify. 

The morning of the third day of trial, he asked trial counsels when he was going to 

testify and they said, “Just be patient. Not now.” He remembered first counsel announcing 

that they would not be putting on proof and beginning closing arguments. During closing 

arguments, he told second counsel that he wanted to testify and second counsel responded, 

“Just relax, just relax, not yet.” He never had the opportunity to tell the court that he wanted 

to testify. If the court had asked whether he wanted to testify, he would have said 

“absolutely.”

On cross-examination, the Petitioner acknowledged he had authored numerous 

articles including journal publications and held professorships in numerous countries. He 

drafted the original post-conviction petition, which included a twenty-nine page appendix. 

He used, in part, the work of the attorney that represented him on direct appeal. The 

allegation that he was deprived of his right to testify was not raised until his appointed 

counsel filed an amended petition. He also acknowledged that he wrote a twenty-four page 

letter to the governor in April 2020, describing his conviction as a “massive conspiracy and 

cover-up of various governmental entities in Knox county.” Despite detailing the issues in 

his case, he did not mention a deprivation of his right to testify. He said, however, that 

there were “probably over a hundred” recorded conversations with his mother where he 

expressed his frustration about not being allowed to testify after the trial. He also

complained to second counsel after trial that he did not get the opportunity to testify. He 

did not recall attempting to retain trial counsels for his direct appeal. 

After hearing the above testimony, the post-conviction court filed a written order 

denying the petition. In the order, the court declined to address trial counsels’ performance 
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related to the constructive amendment to the indictment and the White instruction because 

these grounds “[had] been specifically addressed in the Petitioner[’]s direct appeal by the 

Tennessee Court of Criminal Appeals” and therefore “[had] been previously litigated.”

Regarding the Momon advisal, the court found that the Petitioner failed to establish that 

trial counsels were deficient or that the deficient performance prejudiced the defense. The 

court found that “the requirements of Momon were satisfied, albeit the last sentence in the 

third section [that the defendant has voluntarily and personally waived the right to testify].” 

The court acknowledged that the record was silent as to the Petitioner’s waiver of 

his right to testify but stated that it “[could not] find that [the Petitioner] did not voluntarily 

and personally waive his right to testify in discussions with his attorneys before they rested 

defense proof.” The court found the Petitioner was not a credible witness, and his claim 

that he never spoke with trial counsels before the defense rested on the third day of trial 

was “unfathomable given the circumstances.” The court found that though trial counsels 

could not articulate the content of their conversation with the Petitioner, they “would not 

have foregone that very important determination before resting defense proof.” The court 

emphasized that the Petitioner did not mention “this very egregious allegation” at trial, at 

sentencing, in his motion for new trial, in his extensive letter to the governor, in any 

recorded jail calls, or in his original pro se petition. The court then determined that any 

deprivation of the Petitioner’s right to testify was harmless. The court highlighted that 

though the Petitioner’s testimony would have been important, the evidence was 

overwhelming and the victim’s account was corroborated by her physical injuries and the 

communications between the victim and her family during the offense. The Petitioner filed 

a timely appeal. 

After briefing and oral argument was complete, we remanded this case for the filing 

of an amended order. We notified the post-conviction court that its finding that the 

Petitioner’s ineffective assistance of counsel claims related to the constructive amendment 

to the indictment and the White instruction had been previously litigated was erroneous 

and ordered that it address both issues. The post-conviction court filed an amended order. 

Regarding the White instruction, the court found that the Petitioner had not established 

deficiency or prejudice. Though the White instructions provided referenced only 

aggravated assault, the jury was instructed that assault was a lesser included offense of 

aggravated assault. Additionally, the Petitioner’s claim that it was unclear if the instruction 

applied to the lesser included offenses of especially aggravated kidnapping was “without 

merit.” Regarding the constructive amendment to the indictment, the court found that trial 

counsels’ failure to object to the constructive amendment to the indictment was deficient 

but that the deficient performance did not prejudice the defense. 

We granted the Petitioner’s motion for supplemental briefing related to the issues 

addressed by the amended order. The issues are now properly before this court for review.
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ANALYSIS

I. Ineffective Assistance of Counsel. The Petitioner argues that trial counsels were 

ineffective in failing to object to (a) the constructive amendments in Counts 1, 2, and 3; 

and (b) the “incomplete and confusing” White instructions. The State argues that the 

Petitioner has waived these issues by failing to include a statement of the issues, statement 

of the case, or statement of facts in his supplemental brief. Tenn. R. App. P. 27(a)(4)-(6) 

(“[t]he brief of the appellant shall contain . . . [a] statement of the issues presented for 

review[,] [a] statement of the case[, and] [a] statement of facts”). Alternatively, the State 

argues that the Petitioner has not established that he received the ineffective assistance of 

counsel. We conclude that the issues have not been waived and determine that trial 

counsels were not ineffective.

The Petitioner has preserved his ineffective assistance of counsel claims. In support 

of its argument that Rule 27(a) applies to supplemental briefs, the State cites a footnote in 

Lovlace v. Copley. 418 S.W.3d 1, 36 n.24 (Tenn. 2013). In this footnote, the Lovlace

court declined to address certain issues because they required credibility determinations, 

or, alternatively, because the appellants “failed to raise these issues in their [] application 

for permission to appeal, failed to list these issues in the appropriate section of their 

supplemental brief, and failed to provide any significant argument regarding these issues 

in the argument section of their briefs.” Id. The State does not cite, and we have not found, 

any case in which a Tennessee court has directly stated that Rule 27(a) applies to 

supplemental briefs. Regardless, we exercise our discretion to review these issues despite 

the alleged inadequacies of the supplemental brief. The alleged inadequacies do not hinder 

our review because both parties extensively addressed these issues in their briefs. See

Hodge v. Craig, 382 S.W.3d 325, 337 (Tenn. 2012) (exercising discretion to review an 

issue not contained in the statement of issues because the claim was repeatedly asserted in 

the argument section); see also Tenn. R. App. P. 2 (“For good cause, . . . the Supreme 

Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or 

provisions of any of these rules in a particular case” subject to limited exceptions).

A claim for post-conviction relief based on alleged ineffective assistance of counsel 

presents mixed questions of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013) 

(citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). In order to prevail on a 

petition for post-conviction relief, a petitioner must prove all factual allegations by clear 

and convincing evidence. Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). The postconviction court’s findings of fact are conclusive on appeal unless the evidence 

preponderates against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff v. State, 297 

S.W.3d 208, 216 (Tenn. 2009); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). 

“Accordingly, appellate courts are not free to re-weigh or re-evaluate the evidence, nor are 
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they free to substitute their own inferences for those drawn by the post-conviction court.” 

Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (citing State v. Honeycutt, 54 

S.W.3d 762, 766 (Tenn. 2001)). However, we review the post-conviction court’s 

conclusions of law de novo with no presumption of correctness. Mobley, 397 S.W.3d at 

80.

The right to effective assistance of counsel is protected by both the United States 

Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I, 

§ 9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must 

establish that: (1) his lawyer’s performance was deficient; and (2) the deficient 

performance prejudiced the defense. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); 

Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner successfully 

demonstrates deficient performance when the petitioner establishes that his attorney’s 

conduct fell “below an objective standard of reasonableness under prevailing professional 

norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 

S.W.2d 930, 936 (Tenn. 1975)). Prejudice arising therefrom is demonstrated once the 

petitioner establishes “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. A reasonable probability is 

a probability sufficient to undermine confidence in the outcome.” Id. at 370 (quoting 

Strickland, 466 U.S. at 694). “Because a petitioner must establish both prongs of the test, 

a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on 

the ineffective assistance claim.” Id.

In assessing an attorney’s performance, we “must be highly deferential and should 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S. 

at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge 

the reasonableness of counsel’s challenged conduct on the facts of the particular case, 

viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. 689-90. “No particular 

set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of 

circumstances faced by defense counsel or the range of legitimate decisions regarding how 

best to represent a criminal defendant.” Id. at 688-89. However, “deference to matters of 

strategy and tactical choices applies only if the choices are informed ones based upon 

adequate preparation.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad, 

938 S.W.2d at 369).

A. Constructive Amendment. “Because an accused in a criminal prosecution has 

a right to fair and reasonable notice of the charges against which he must defend, ‘the 

accused may be convicted only of a crime [that] is raised by the indictment or [that] is a 

lesser included offense thereof.’” State v. Myers, 581 S.W.3d 173, 180 (Tenn. 2019) 

(quoting State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001)). A constructive amendment of 
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the indictment occurs “when the jury is permitted to convict the defendant upon a factual 

basis that effectively modifies an essential element of the offense charged.” State v.

Goodson, 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001). A constructive amendment results 

in automatic reversal of the defendant’s conviction because he may have been convicted 

on a ground not charged in the indictment. Id.

On direct appeal, the Petitioner challenged the alleged constructive amendments to 

the indictment. This court summarized the relevant counts of the indictment as follows:

[T]he [Petitioner] was charged in Counts 1 and 2 of the indictment with 

alternative counts of especially aggravated kidnapping. Count 1 alleged 

especially aggravated kidnapping accomplished with a deadly weapon, see

T.C.A. § 39-13-305(a)(1), while Count 2 charged especially aggravated 

kidnapping where the victim suffered serious bodily injury, see id. § 39-13-

305(a)(4). Count 3 charged the offense of aggravated kidnapping “[w]hile 

the defendant is in possession of a deadly weapon or threatens the use of a 

deadly weapon.” See id. § 39-13-304(a)(5). Count 3 was clearly a lesser 

included offense of Count 1 that need not, and arguably should not, have 

been pleaded as a separate count of the indictment. See id. § 40-18-110.

Edwards, 2021 WL 2554217, at *14. This charging of alternative modes and a lesser 

included offense in separate counts gave rise to confusing jury instructions. After defining 

the essential elements of especially aggravated kidnapping in Counts 1 and 2, the trial court 

instructed the jury that, should it find the defendant not guilty of especially aggravated 

kidnapping, it should proceed to consider the lesser included offense of aggravated 

kidnapping. Rather than defining the essential elements of aggravated kidnapping

immediately, the trial court instructed that it would define the offense later in the 

instructions. This later definition appeared in the Count 3 instruction:

The defendant is charged in Count 3 of the [i]ndictment with the offense of 

aggravated kidnapping. To this offense . . . he has entered a plea of not guilty.

Any person who commits the offense of aggravated kidnapping is guilty of 

a crime.

For you to find the defendant guilty of the offense as charged in Count 3, the 

State must have proven beyond a reasonable doubt the existence of the 

following essential elements:

(1) that the defendant knowingly confined another unlawfully so as to 

interfere substantially with the other's liberty; and
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(2) that the alleged victim suffered bodily injury.

For you to find the defendant guilty of the offense as charged in Count 3, the 

State must have proven beyond a reasonable doubt the existence of the 

following elements:

(1) that the defendant knowingly confined another unlawfully so as to 

interfere substantially with the other's liberty; and

(2) that the defendant possessed or threatened the use of a deadly weapon.

Id. at *14-15. However, Count 3 of the indictment only alleged aggravated kidnapping 

with a deadly weapon. This instruction, therefore, invited the jury to convict the Petitioner

based on a mode not charged in the indictment. Because trial counsels failed to raise the 

issue at trial or in the motion for new trial, this court was limited to reviewing for plain 

error. Id. at *15. 

Through the lens of plain error, this court concluded that the Petitioner was not 

entitled to relief. Id. at *16-17. Regarding Counts 1 and 2, this court highlighted that “[t]he 

better practice would have been for the trial court to define each lesser included offense 

immediately after the greater offense.” Id. at *16. However, the Petitioner failed to 

establish that a clear and unequivocal rule of law was breached or that the error was so 

significant that it probably changed the outcome of the trial. Regarding Count 3, this court 

concluded there was a constructive amendment: 

Here, the State charged the defendant in Count 3 with aggravated kidnapping 

“[w]hile the defendant is in possession of a deadly weapon or threatens the 

use of a deadly weapon.” By alleging a specific mode of liability, the State 

was obliged to prove that mode of liability and was precluded from achieving 

a conviction under a mode of liability different than that alleged in the 

indictment. Because the trial court's instruction invited the jury to convict 

the defendant of aggravated kidnapping in Count 3 if it found that the victim 

suffered bodily injury, it permitted the jury to convict the defendant “on a 

ground not charged in the indictment,” and, in consequence, resulted in a 

constructive amendment of the indictment.

Id. at *17 (citations omitted). However, the Petitioner failed to establish that substantial 

justice was at stake because the error was not so significant that it probably changed the 

outcome of the trial. “Unlike most of the constructive amendment cases addressed by this 

court, in this case the trial court did instruct the jury on the correct mode of liability charged 
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in the indictment, and the evidence was sufficient to support a finding of guilt for that mode 

of liability.” Id.

We note that this court recently clarified the standard applicable to determining 

whether consideration of a constructive amendment is necessary to do substantial justice 

under plain error review. State v. Modine, No. M2022-01183-CCA-R3-CD, 2024 WL 

3043270, at *4-5 (Tenn. Crim. App. June 18, 2024). The question is not whether the 

evidence is sufficient to support a conviction under the indicted mode, but whether we can 

conclude beyond a reasonable doubt that the jury’s verdict was unanimous. Id. at *5 

(though the evidence was sufficient to support a conviction under the indicted mode, “that 

is not the proper lens through which we review these issues”). In Modine, we granted plain 

error relief where, like here, the jury instruction charged two modes of liability—the mode 

charged in the indictment and an uncharged mode—because “it was possible, based on the 

jury instructions, that some jurors found that Defendant committed the rape by force or 

coercion, and others thought it was due to lack of consent.” Id. This case, however, is 

factually distinct from Modine because despite the erroneous instruction in Count 3, the 

jury unanimously found in Count 1 that the Petitioner committed aggravated kidnapping 

with a deadly weapon based on the same sequence of events underlying Count 3. 

Trial counsels were deficient in failing to object to the jury instructions in Count 3, 

but not in Counts 1 and 2. As this court concluded on direct appeal, only Count 3 of the 

indictment was constructively amended. Trial counsels testified that they made no tactical 

decision not to object to issues related to the indictment or the jury instructions. 

Accordingly, the failure to object to the constructive amendment fell below an objective

standard of reasonableness.

Assessing prejudice requires clarification of the relationship between plain error 

prejudice and Strickland prejudice. The Petitioner argues that trial counsels’ deficient 

performance was prejudicial because had they preserved the issue, this court would have 

reversed his conviction on direct appeal. The State argues that a petitioner who failed to 

establish on direct appeal that the error was so significant that it probably changed the 

outcome of the trial cannot establish prejudice under Strickland. See Falcon v. State, No. 

E2021-00398-CCA-R3-PC, 2022 WL 984665, at *5-6 (Tenn. Crim. App. Apr. 1, 2022), 

no perm. app. filed (“[O]ur finding on direct appeal that the conduct of the trial court did 

not result in prejudice to the Petitioner’s case means that the Petitioner cannot meet the 

prejudice prong of his ineffective assistance of counsel claim with respect to this 

allegation.”). In support of this argument, the State cites several unreported cases, all 

stemming from Mathis v. State, wherein this court held that the Strickland prejudice 

standard and the plain error prejudice standard are “essentially the same.” No. M2006-

02525-CCA-R3-PC, 2008 WL 1850800, at *10 (Tenn. Crim. App. Apr. 25, 2008), perm. 

app. denied (Tenn. Oct. 27, 2008). The Petitioner contends that these cases failed to 
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meaningfully address the issue and points to other jurisdictions that have determined that 

their plain error standard is distinct from Strickland prejudice. See, e.g., Ex parte Taylor, 

10 So.3d 1075, 1078 (Ala. 2005); People v. Randolph, 917 N.W.2d 249, 253-56 (Mich. 

2018).

We conclude that a denial of plain error relief on direct appeal based on a 

petitioner’s failure to show that the error “was so significant that it probably changed the 

outcome of the trial” does not necessarily preclude a finding of prejudice under Strickland. 

The standards are similar, but not identical. A defendant is not entitled to plain error relief 

unless he can show that “substantial justice is at stake; that is, the error was so significant 

that it probably changed the outcome of the trial.” State v. Hatcher, 310 S.W.3d 788, 808 

(Tenn. 2010) (citing State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)) (internal 

quotations omitted). Under Strickland, a petitioner must show “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” 466 U.S. at 694.

Strickland requires a slightly lower showing of prejudice than plain error. In 

Harrington v. Richter, the United States Supreme Court explained that there is a difference 

between Strickland’s prejudice standard and a more-probable-than-not standard. 562 U.S. 

86, 111-12 (2011). Under Strickland, “a defendant need not show that counsel’s deficient 

conduct more likely than not altered the outcome in the case” to establish prejudice. 

Strickland, 466 U.S. at 693 (emphasis added). But under plain error, a defendant must 

show exactly that. Hatcher, 310 S.W.3d at 808. To be plain, an error must have 

“probably,” or more likely than not, changed the outcome. See Kilpatrick v. Bryant, 868 

S.W.2d 594, 603 (Tenn. 1993) (using “probably” and “more likely than not” 

interchangeably). Though this difference “is slight and matters ‘only in the rarest case,’” 

it is possible for trial counsel’s failure to object to an error to create a “reasonable 

probability” of a different outcome without the error being “so significant that it probably 

changed the outcome.” Harrington, 562 U.S. at 111-12 (quoting Strickland, 466 U.S. at 

693). Therefore, we decline to adopt the broad rule proposed by the State.

Nonetheless, the Petitioner has failed to establish that trial counsels’ deficient 

performance prejudiced his defense. Had trial counsels objected, there is no reasonable 

probability that the result of the trial would have been different. See Nesbit v. State, 452 

S.W.3d 779, 787 (Tenn. 2014) (quoting Strickland, 466 U.S. at 694) (“the question is 

whether there is a reasonable probability that absent the errors, the factfinder would have 

had a reasonable doubt respecting guilt,” or would have convicted of a lesser charge). The 

evidence of aggravated kidnapping, as summarized on direct appeal, was overwhelming. 

In addition, the jury unanimously found in Count 1 that the Petitioner committed 

aggravated kidnapping with a deadly weapon, and unanimously found in Count 2 that the 

Petitioner committed aggravated kidnapping where the victim suffered serious bodily 
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injury. Because Counts 1, 2, and 3 were all based on the same sequence of events (and 

thus merged after trial), this is strong evidence that there is no reasonable probability the 

outcome would have been different absent the error. Accordingly, the Petitioner is not 

entitled to relief.

B. White Instruction. In State v. White, the Tennessee Supreme Court held that 

the kidnapping statutes were not intended to apply to “a removal or confinement of a victim 

that is ‘essentially incidental’ to that of an accompanying felony, such as rape or robbery.” 

362 S.W.3d 559, 581 (Tenn. 2012). To ensure defendants are afforded constitutional due 

process, the trial court must therefore instruct the jury to determine whether the removal or 

confinement “is independently significant from [the] accompanying felony.” Id. at 578. 

Though White uses the term “accompanying felony,” the Tennessee Supreme Court has 

required a White instruction when the accompanying offense was misdemeanor assault. 

State v. Cecil, 409 S.W.3d 599, 609-13 (Tenn. 2013) (reversing the defendant’s false 

imprisonment conviction because “the jury was not adequately charged on the question of 

whether the victim’s removal or confinement . . . was essentially incidental to the assault”); 

see also State v. Alston, 465 S.W.3d 555, 562 (Tenn. 2015) (“We have also identified 

certain crimes—such as robbery, rape, and assault—that, when charged along with 

kidnapping, would warrant [a White] instruction.”). 

On direct appeal, the Petitioner challenged the alleged incomplete White instruction. 

Edwards, 2021 WL 2554217, at *18. The trial court provided the pattern jury instruction 

adopted pursuant to White for each kidnapping offense. At the end of each White

instruction, regardless of the offense for which it correlated, was the following language:

“[u]nless you find beyond a reasonable doubt that the alleged victim’s confinement 

exceeded that which was necessary to accomplish the alleged [a]ggravated [a]ssault, you 

must find the defendant not guilty of especially aggravated kidnapping.” (emphasis 

added). Again, trial counsels failed to raise any issue at trial or in the motion for new trial 

and this court was limited to reviewing for plain error. Id. Through the lens of plain error, 

this court concluded that “the trial court’s failure to specifically enumerate the lesser 

included offense of assault in its White instruction did not breach a clear and unequivocal 

rule of law.” Id.

The Petitioner argues that trial counsels were ineffective for failing to object to the 

White instruction provided at trial. He contends that because the instruction referenced

only aggravated assault, the jury was never told that it had to find the confinement of the 

aggravated kidnapping was greater than necessary to accomplish assault—the convicted 

offense. He also contends that the instruction was confusing because it suggested it was 

only applicable to especially aggravated kidnapping. The State responds that trial counsels 

were not deficient because specific enumeration of lesser included offenses is not required. 
- 15 -

The State also contends that the Petitioner was not prejudiced because the proof 

overwhelmingly showed confinement beyond what was necessary for the assault.

We conclude that trial counsels’ failure to object to the White instruction was 

deficient. Though the instruction was provided, the confusing language could have led the 

jury to believe that it applied only to especially aggravated kidnapping, and only when the 

accompanying charge was aggravated assault. Trial counsels testified that they did not 

make a tactical decision not to object to the White instruction. The failure to object, 

therefore, fell below an objective standard of reasonableness.

However, the Petitioner has failed to establish that trial counsels’ failure to object 

to the White instruction prejudiced his defense. The evidence overwhelmingly established 

that the aggravated kidnapping was independently significant from the assault. The 

confinement lasted for approximately twelve hours, during which he repeatedly attempted 

to prevent the victim from summoning assistance to avoid detection. Accordingly, he is 

not entitled to relief.

II. Momon. The Petitioner alleges that the post-conviction court erred by finding 

that he knowingly, voluntarily, and intelligently waived his right to testify at trial. He 

complains that, contrary to the Tennessee Supreme Court’s instruction in Momon, the postconviction court presumed waiver of a fundamental right from a silent record. 18 S.W.3d 

at 162. Because the post-conviction court did not permit him to present the testimony he 

would have given at trial, he asks this court to remand for determination of whether the 

deprivation of his right to testify was harmless beyond a reasonable doubt. The State 

responds that the Petitioner waived this issue by failing to raise it in his motion for new 

trial or on direct appeal. Alternatively, the State argues that any error in the Momon

colloquy was harmless because the evidence was overwhelming, and the Petitioner’s 

testimony would have contradicted the victim’s corroborated account. We agree that the 

Petitioner waived his stand-alone Momon claim. Considering this issue as it relates to the 

Petitioner’s ineffective assistance of counsel claim, we conclude that the Petitioner has not 

established that trial counsels’ performance was deficient.

The Petitioner has waived his stand-alone Momon claim by raising it for the first 

time in this appeal. See Mobley, 397 S.W.3d at 104 (citing Tenn. Code Ann. § 40-30-

106(g)) (holding that the petitioner waived his Momon claim by not presenting it to the 

trial court or on direct appeal). This claim was not raised at trial, in his motion for new 

trial, on direct appeal, or in the post-conviction court. Relying on State v. Walsh, the 

Petitioner argues that the State has waived its waiver argument by raising it for the first 

time on appeal. 166 S.W.3d 641, 645-46 (Tenn. 2005) (citing Tenn. Code Ann. § 40-30-

110(f)) (concluding that because waiver is a rebuttable presumption, the State waived its 

waiver argument by not raising it in the post-conviction court). Walsh, however does not 
- 16 -

support the Petitioner’s argument. In the post-conviction court, the Petitioner presented 

this issue in the context of an ineffective assistance of counsel claim—not a stand-alone

Momon claim. The State, therefore, argued waiver as soon as the issue was raised and has 

not waived its waiver argument. Because the State is correct that the stand-alone claim is 

waived, we will construe this issue as an ineffective assistance of counsel claim consistent 

with the post-conviction petition and the post-conviction court’s ruling. See Thomas v.

State, No. W2004-01704-CCA-R3-PC, 2005 WL 1669898, at *2-3 (Tenn. Crim. App. July 

18, 2005) (addressing the petitioner’s Momon claim only as it related to ineffective 

assistance of counsel because the stand-alone claim was waived), perm. app. denied (Tenn. 

Dec. 5, 2005).

The right to testify at one’s own trial is a fundamental right that must be personally 

waived by the defendant. Momon, 18 S.W.3d at 161. Absent a written waiver, defense 

counsel must ensure the defendant has personally waived the right by requesting a hearing 

on the record prior to the conclusion of the proof and outside of the presence of the jury. 

Id. at 162, 175. During the Momon hearing, defense counsel must show that the defendant 

knows and understands:

(1) the defendant has the right not to testify, and if the defendant does not 

testify, then the jury (or court) may not draw any inferences from the 

defendant's failure to testify;

(2) the defendant has the right to testify and that if the defendant wishes to 

exercise that right, no one can prevent the defendant from testifying;

(3) the defendant has consulted with his or her counsel in making the decision 

whether or not to testify; that the defendant has been advised of the 

advantages and disadvantages of testifying; and that the defendant has 

voluntarily and personally waived the right to testify.

Id. “The waiver of a fundamental right will not be presumed from a silent record, and the 

courts should indulge every reasonable presumption against the waiver of a fundamental 

right.” Id. (internal citations omitted). However, the failure to follow these procedural 

guidelines “will not in and of itself support a claim for deprivation of the constitutional 

right to testify if there is evidence in the record to establish that the right was otherwise 

personally waived by the defendant.” Id. at 163.

Though the trial court conducted a Momon hearing in this case, the Petitioner did 

not announce during the hearing whether he was waiving his right to testify. After the 

Petitioner confirmed that he knew and understood his rights, first counsel asked, “Does 

[the Petitioner] need to make that decision now, Your Honor?” The trial court stated he 
- 17 -

did not, and the court adjourned for the day. The following morning, the parties did not 

resume the hearing and first counsel announced that the defense would not be putting on 

any proof. In his amended post-conviction petition, the Petitioner alleged that trial counsels 

did not consult with him before the announcement and instead made a “unilateral decision”

that he would not testify. 

We agree with the post-conviction court that the Petitioner has not established that 

trial counsel’s performance was deficient. The Petitioner has failed to demonstrate by clear 

and convincing evidence his central factual allegation—that trial counsels unilaterally 

decided that he would not testify at trial. The only support for this allegation is the 

Petitioner’s own testimony, which the post-conviction court specifically found not to be 

credible. The remaining evidence suggests that the Petitioner did in fact personally waive 

his right to testify. Second counsel testified that he explained to the Petitioner on multiple 

occasions that whether to testify was his decision alone. During the Momon hearing, the 

Petitioner confirmed he had discussed the decision with trial counsels many times and 

understood that the decision to testify was within his sole discretion. Trial counsels could 

not recall their specific conversations with the Petitioner, but both confirmed they did not 

make the decision that the Petitioner would not testify. Trial counsels also testified that

the Petitioner never complained to them during or after trial about not testifying. 

The Petitioner acknowledged that he did not mention the alleged deprivation of his 

right to testify in his original pro se petition for post-conviction relief or in a twenty-four 

page letter he wrote to the governor detailing the issues in his case which he believed 

amounted to a “massive conspiracy and cover-up of various governmental entities in Knox 

County.” Though first counsel did not ask during the Momon hearing whether the 

Petitioner was voluntarily and personally waiving his right to testify, the evidence in the 

record establishes “that the right was otherwise personally waived” by the Petitioner and 

overcomes the presumption against waiver. Momon, 18 S.W.3d at 163.

Contrary to the Petitioner’s assertion, this conclusion does not presume waiver of a 

fundamental right from a silent record. A silent record is one that is void of any evidence 

that the defendant personally waived his right to testify. See State v. Posey, 99 S.W.3d 

141, 143, 149 (Tenn. Crim. App. 2002); see also Thomas, 2005 WL 1669898, at *3-4 

(concluding the record was not silent because counsel testified that the petitioner made an 

informed decision not to testify). As summarized above, the record in this case contains

evidence of personal waiver—most notably, trial counsels’ testimony that they did not 

make a unilateral decision that the Petitioner would not testify. Accordingly, the Petitioner 

is not entitled to relief.

CONCLUSION
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After review, we affirm the judgment of the post-conviction court.

___________________________________________

CAMILLE R. MCMULLEN, PRESIDING JUDGE