IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 5, 2018 Session

STATE OF TENNESSEE v. MARCELLUS HURT

Appeal from the Criminal Court for Shelby County

No. 15-04826 Lee V. Coffee, Judge

___________________________________

No. W2017-02179-CCA-R3-CD

___________________________________

A Shelby County Criminal Court Jury convicted the Appellant, Marcellus Hurt, of 

aggravated assault, vandalism, and domestic assault. The trial court imposed a total 

effective sentence of sixteen years, eleven months, and twenty-nine days. On appeal, the 

Appellant contends that: (1) the trial court erred by allowing the State to argue a new 

theory during rebuttal, (2) the trial court erred by allowing the victim to testify regarding 

the cost of the repairs to his car; (3) the evidence was not sufficient to sustain his 

convictions of aggravated assault and felony vandalism; and (4) the trial court erred by 

sentencing the Appellant for a Class D felony for the vandalism conviction, by 

erroneously applying enhancement factors, and by imposing consecutive sentencing. 

Upon review, we agree that the trial court erred by admitting hearsay testimony regarding 

the amount of the damages. Therefore, we must reverse the Appellant’s vandalism 

conviction and remand for a new trial on that charge. The Appellant’s judgments are 

affirmed in all other respects. 

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

in Part, Reversed in Part; Case Remanded

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, J., joined. ROBERT H. MONTGOMERY, JR., J., filed a separate opinion 

concurring in part and dissenting in part.

David S. Mays, Memphis, Tennessee, for the Appellant, Marcellus Hurt.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Kevin McAlpin, 

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

04/01/2020
- 2 -

OPINION

I. Factual Background

The Appellant was indicted for aggravated assault, being a felon in possession of a 

handgun, vandalism over $1,000, and domestic assault. The Appellant’s charges 

stemmed from an altercation between the Appellant and the victim of the aggravated 

assault, Eddie Posey, over a minimal amount of marijuana. Two main disputes emerged 

at trial: (1) whether the State adduced sufficient proof regarding the cost of the repairs to 

the victim’s car and (2) whether the Appellant used a gun or a pipe or tire iron during the 

assault of the victim. 

During the trial, the victim testified that on the morning of March 21, 2015, he 

went to Eldridge Street to the house shared by his cousin, Carol Jenkins Hurt; her 

husband, Charles Hurt; and her stepson, the Appellant. The victim asked Mrs. Hurt to 

buy some marijuana for him, but she did not have any money. Mrs. Hurt offered the 

victim the ends of some marijuana cigarettes, which she called “cocktails” or “ducks,” 

that she had saved in a jar for the victim and a neighbor. The Appellant thought the 

marijuana was his, and he began arguing with Mrs. Hurt. The victim was afraid the 

situation would “escalate,” and he did not take the marijuana. The Appellant was angry 

and began beating Mrs. Hurt, who was sitting on a couch. Mr. Hurt tried to intervene, but 

the Appellant pushed him aside. Afterward, the victim walked toward the Appellant. 

The Appellant “swung” at the victim, and the two men began “throwing a few punches at 

each other.” During the fight, the victim’s hand was broken. 

The Appellant told the victim, “‘I’m going to get my gun. I’m going to shoot 

you.’” The victim was tired and afraid for his life, so he “broke and ran” across the street 

to Eirma Jenkins’ house. Ms. Jenkins was the victim’s cousin and Mrs. Hunt’s sister. 

The victim recalled that when he reached the front steps of Ms. Jenkins’ house, he heard 

a gunshot. The victim saw the Appellant shooting and picking up the shells. 

The victim said that after he was safely inside Ms. Jenkins’ house, he looked out 

the front door. The Appellant was “hollering and calling [the victim’s] name,” holding “a 

big gun,” walking around the victim’s Nissan Versa, and breaking all of the car’s 

windows. When the Appellant hit the back windshield of the car with the gun, the gun 

fired. The victim said that the repairs to his car cost $8,700 and that he paid a $500 

deductible. The victim identified photographs showing the damage to his car, and the 

photographs were admitted as exhibits. 

The victim said that his cousin, Donzell Hykes, told him to step away from the 

front door before the Appellant shot him, and the victim complied. The victim did not 

want to call the police, but Mr. Hykes called the police. After breaking the windows in 
- 3 -

the victim’s car, the Appellant walked around the block for approximately ten minutes 

and then went into his house. 

The victim said that he did not have a gun and that he never threatened to hurt or 

kill the Appellant. The victim said he confronted the Appellant in Mrs. Hurt’s house to 

stop the Appellant before he killed Mrs. Hurt. 

On cross-examination, the victim said that he went to Mrs. Hurt’s house at 

approximately 10:00 a.m. Mr. Hurt was elderly and in “relatively good health”; however, 

he suffered a stroke sometime after the offense. The victim acknowledged that Mrs. Hurt 

“like[d] beer” but stated that he could not remember whether she was drinking when he 

arrived at her house. The victim denied drinking alcohol that morning. When asked to 

explain why he told the police in his March 21, 2015 statement that “‘[w]e were sitting 

there, drinking,’” the victim explained that he must have been referring to “juice or 

something” because he would not have been drinking alcohol that early in the day. 

The victim reviewed his police statement and acknowledged that it did not 

mention that the Appellant threatened to get his gun and shoot the victim; nevertheless, 

the victim said the Appellant made the threat and that he told the police about the threat. 

The victim said that the Appellant “swung at” him and that they “got to fighting” 

but that he did not think the Appellant ever hit him. The victim explained that he did not 

know “who passed the first lick.” He recalled that after the Appellant “swung at” him, he 

grabbed the Appellant, and the Appellant responded by grabbing the victim’s testicles. 

Thereafter, the Appellant said he was going to get his gun and shoot the victim. 

After the Appellant threatened to get his gun, the victim ran across the street to 

Ms. Jenkins’ house where Mr. Hykes was working. The victim heard two or three 

gunshots. The victim said that he was running when the Appellant fired the first shot; 

therefore, he did not know whether the Appellant had fired in his direction. The victim

said that “the second shot was not in [his] direction” but that he “saw the gun go off when 

[the Appellant] hit the back of [the victim’s car] window.” 

The victim said that the Appellant had “a big gun,” that it was “nickel plated,” and 

that it might have been a .45 caliber or 9 millimeter. The Appellant had another gun, 

which was black, in his pocket. The victim saw the Appellant throw the black gun into 

the Hurts’ house. The victim acknowledged that his police statement did not mention a 

second gun or that he had heard two or three shots; however, the victim maintained, “I 

know what I saw. I know he shot at me. I know he shot at me twice.” 

The victim conceded he did not tell the police that the Appellant picked up the 

discarded shell casings after the shooting, explaining he did not think “that was serious.” 
- 4 -

The victim acknowledged he did not testify at the preliminary hearing that the Appellant 

threw a second gun into the Hurts’ house after walking around the block, explaining he 

must have “just forgot and left that out.” The victim did not remember telling the police 

that the Appellant threatened to get a gun and shoot him. The victim stated that when the 

police approached the Appellant, the Appellant sat, put his hands behind his back, looked 

at the victim, and said, “I’m going to kill you.” 

The victim acknowledged that at the scene, he estimated to the police that the 

damage to his car would cost $1,500 to repair. However, the victim conceded that he was 

not an automobile mechanic, that he did not work for Kelly Blue Book, and that he did 

not have an official estimate at the time. 

Defense counsel showed the victim his police statement and asked if he had told 

the police that the Appellant “shot, came back, knocked out the windows. When he hit 

the back window is when he shot again, then he shot at the house.” The victim

responded, “Maybe [the police] wrote it wrong. I told them that when I left out the house 

and I ran, he shot. And when he hit the back window, he shot. The gun went off.” 

Carol A. Hurt testified that the victim came to her home before noon. Mrs. Hurt 

was sitting in the living room drinking a beer and watching television. Mr. Hurt, the 

Appellant, and the victim were sitting on the porch. The victim came inside and asked 

Mrs. Hurt for money to buy marijuana. She responded that she did not have any money 

but gave him some marijuana “ducks” that she had saved in a cup. She thought the 

victim could make a marijuana cigarette from the “ducks.” 

Mrs. Hurt testified that the marijuana did not belong to the Appellant. 

Nevertheless, he was angry because she had given the victim the marijuana, and he began

hitting Mrs. Hurt. Mr. Hurt and the victim intervened and began fighting the Appellant. 

Mrs. Hurt ran outside towards a neighbor’s house, but the Appellant caught her and 

began hitting her again. Mr. Hurt and the victim followed them outside, and the victim

fought with the Appellant. Mrs. Hurt saw the victim “jump up” and run across the street 

to Ms. Jenkins’ house. 

Mrs. Hurt said that she went back inside her house and was trying to lock the front 

door when the Appellant “kicked it in” and attempted to hit her. The Appellant ran 

toward the back of the house saying “he was going to get a gun” and “I’m going to shoot 

you, I’m going to shoot you.” The Appellant went outside, and Mrs. Hurt heard a 

gunshot. She did not know if the Appellant “shot in the air or shot at [the victim] or shot 

the window. All [she knew] is [she] heard stuff shatter.” She then saw the Appellant 

knock out the windows of the victim’s car. 
- 5 -

Mrs. Hurt recalled that after breaking the windows, the Appellant ran away and 

was gone for less than five minutes. Mrs. Hurt ran to a neighbor’s house. The next time 

Mrs. Hurt saw the Appellant, he was in the back of a police car. Mrs. Hurt did not know 

who called the police. 

Mrs. Hurt said that photographs were taken of her injuries immediately after the 

incident. Additional photographs were taken a couple of days after bruises developed

from her injuries. Mrs. Hurt identified the photographs, and they were shown to the jury. 

On cross-examination, Mrs. Hurt said that she was not sure whether she gave a 

statement to the police about the incident. She said she was drinking Colt 45 beer when

the victim came to her house, which was probably in the afternoon or midday, not the 

morning. 

Mrs. Hurt said she “could barely see” as a result of the injuries from the assault,

but she knew the victim and the Appellant continued fighting outside the house because 

she followed them. The victim ran across the street, and Mrs. Hurt ran down the street, 

but the Appellant caught her and assaulted her again. Mrs. Hurt saw the Appellant break 

two or three of the car windows. She could not recall if the Appellant assaulted her

before he broke the windows, explaining, “I remember certain things that happened and I 

can tell you accurately it happened, but I can’t say in which order did it happen because it 

all happened so quick to me.” Mrs. Hurt heard one gunshot but did not actually see the 

Appellant fire the gun. She received medical treatment following the assault.

Mrs. Hurt said that she had lived in the house with the Appellant for a couple of 

years. She had never seen the victim with a gun, but she might have seen the Appellant 

with a gun. Defense counsel showed Mrs. Hurt a pipe, and she identified it as one that 

had been on the front porch of her residence. She did not know if the pipe had ever been 

used for changing tires or shooting fireworks. Defense counsel submitted the pipe as an 

exhibit, describing it for the record as “a black and red item described as a pipe. Appears 

to be about 24 inches. 18 to 24 inches long.” 

Memphis Police Officer Jonathan DeMuth testified that just before noon, he was 

dispatched to Eldridge Street. The police received “numerous calls” reporting an incident 

that “started off as a disturbance, then it escalated to a fight, and then shots fired on the 

scene.” Officer DeMuth and his partner, Officer Nikki Russell, arrived at the scene in 

separate vehicles at approximately the same time. Several people pointed toward a man, 

later identified as the Appellant, and said he had fired the shots. The Appellant “was 

covered in sweat and blood and was very raged.” The officers detained the Appellant. A 

car was parked almost in front of the residence, and almost all of the car windows were 

broken. 
- 6 -

Officer DeMuth said that he did not have a chance to speak with all of the people 

who were at the scene. While he was trying to control the situation, all but one person 

disappeared, which was not unusual. He explained that witnesses can be “afraid that 

they’ll be retaliated against.” 

Officer DeMuth said that the police searched the area for a gun, including the 

Hurts’ residence, but did not find a weapon. Mrs. Hurt “had terrible facial injuries. 

Swelling. Both of her eyes were blood red. It was pretty – pretty badly beat.” Officer 

DeMuth did not notice whether Mrs. Hurt was intoxicated. 

On cross-examination, Officer DeMuth acknowledged that his report reflected he 

was told to look for a “black automatic pistol.” He testified that he did not find a pistol, 

bullets, gun case, or bullet holes inside the Hurts’ house. No one had any gunshot

wounds. He further noted that he did not find shell casings but that someone at the scene 

told him that the shell casings “were picked up.” 

Officer DeMuth said that he talked with Mr. Hykes at the scene. The Appellant 

was detained after other people at the scene “point[ed] at him as the armed person.” The 

officers approached the Appellant and explained that they needed to detain him until they 

could determine what had occurred. Eventually, the officers cuffed the Appellant’s hands 

behind his back and “coached” him into the back of a police car. 

Officer DeMuth stated that Officer Russell “handled the assault portion” of the 

incident while he “handled the shots being fired at [the victim] and [the] vandalism.” 

Officer DeMuth did not speak with Mr. Hurt or the neighbor, Robert Lee Howze. Officer 

DeMuth’s involvement ended after the Appellant was transported to the police station. 

On redirect examination, Officer DeMuth said that the officers were advised that 

the Appellant had picked up the shell casings; therefore, “it was not unreasonable for us 

not to find something that was picked up and disposed of prior to our arrival.” 

Officer DeMuth stated that his report reflected that “[t]hree shots were fired in the 

victim’s direction” and that the estimated damage to the car was $1,500. Officer DeMuth 

never saw a bill for the repairs. 

Officer Nikki Russell testified that she was dispatched to the scene to investigate 

multiple calls about an incident that was originally “a domestic” that was “upgraded to a 

shots fired.” The scene was “very chaotic.” Multiple people were pointing and hollering 

to indicate that a black man in the middle of the street was the perpetrator. The man, later 

identified as the Appellant, was not wearing a shirt. He was sweaty and bloody, and his

demeanor was “very violent.” The officers approached the Appellant and placed him in 

the back of a police car. 
- 7 -

Officer Russell talked with Mrs. Hurt. Mrs. Hurt was upset and frightened, her 

eyes were swollen almost shut, and a “lot of blood [was] in [her] inner eye.” A vehicle 

was parked in the street, and “there was glass everywhere.” Officer Russell looked for a 

gun in the area, “but it was indicated that it had already been put away somewhere. It 

was ditched.” 

On cross-examination, Officer Russell said that the police “had a tough time 

getting . . . to [the Appellant]. That’s how erratic and violent he was even with the 

police.” The officers had to “struggle to get him detained and calmed down” but did not 

have to use force. The officers did not find a gun. 

Donzell Hykes, Jr., testified that he was a carpenter and, sometime before noon, he 

was on a ladder working on the front of Ms. Jenkins’ house. He heard a lot of noise and 

saw the victim run out of the house across the street. The victim ran up Ms. Jenkins’ 

steps and into her house. Around that time, the Appellant came out of the house across 

the street with a gun in his hand. The Appellant was “aiming and . . . hollering, ‘Come 

on out here. I’m going to kill you. I’m going to shoot you. Come on out this house.’” 

Ms. Jenkins came out of her house and yelled, “Don’t be pointing that gun at my house. 

Don’t be pointing that gun out here.” Mr. Hykes said that Ms. Jenkins had a heart attack 

and was transported by ambulance to the hospital. 

Mr. Hykes recalled that when the Appellant yelled for the victim to come out of 

the house, the Appellant pulled the trigger, “but the gun wouldn’t shoot.” The Appellant 

“tried to cock it or something . . . and then he got to shooting.” The Appellant shot 

through the victim’s car and “[s]tarted beating the hell out of it.” The Appellant broke 

out the front and back windows of the car. The victim stayed inside Ms. Jenkins’ house 

with the doors locked. 

Mr. Hykes said that after the Appellant stopped shooting, he picked up a shell and 

ran down the street. Mr. Hykes estimated that the Appellant returned five to fifteen 

minutes later. Around the same time, Mrs. Hurt and “some other girl” were walking 

down the street. When the Appellant reached the Hurts’ house, he saw Mrs. Hurt and 

“[k]nocked her clean off her feet.” Mr. Hykes began yelling that the Appellant was 

“beating up” Mrs. Hurt, and the Appellant ran away. Almost simultaneously, the police 

and fire trucks arrived at the scene. The Appellant returned to the scene “as if nothing 

had happened” and was arrested. 

On cross-examination, Mr. Hykes acknowledged that he was in custody on a 

vandalism charge and that he had prior felony convictions of possession of cocaine, 

burglary of a building, and vandalism over $1,000. Mr. Hykes asserted that he was not 
- 8 -

testifying to gain favor from the State on any charge, noting that he had given a statement 

regarding the incident prior to being charged with vandalism. 

Mr. Hykes acknowledged his police statement reflected that he said the 

Appellant’s gun “went off,” but he asserted that he thought the Appellant had to pull the 

trigger to make the gun fire. Mr. Hykes further acknowledged that he may have told the 

police the Appellant fired two gunshots into the victim’s car; however, he thought he

heard three shots. The chrome-plated gun was in the Appellant’s right hand. Mr. Hykes 

could not say with certainty that the Appellant had picked up shell casings but surmised 

“what else would [he] be picking up?” Mr. Hykes thought he told the police and the 

defense’s investigator that the Appellant had picked up shell casings. Mr. Hykes was 

shown the pipe Mrs. Hurt had identified earlier in the trial, and he said that he had not

seen the pipe. 

Officer Eric Carlisle described the process that he used to collect possible gunshot 

residue from the Appellant on the day of the offense. The sample was stored in the 

property room at the police station until it was transported to the Tennessee Bureau of 

Investigation (TBI) crime laboratory for testing. On cross-examination, Officer Carlisle 

said that testing revealed possible gunshot residue on the Appellant’s right hand. 

Detective Steven Foglesong testified that he took the sample to the TBI for testing. 

On cross-examination, Detective Foglesong acknowledged that the only witnesses who 

gave statements were the victim and Mr. Hykes. He further acknowledged that no testing 

was done to determine if the victim or Mrs. Hurt were impaired. Detective Foglesong

conceded that the case began with an argument over marijuana but that neither the victim

nor Mrs. Hurt were charged with an offense relating to marijuana. 

Detective Foglesong said that his investigation revealed that the victim’s broken 

hand resulted from his striking the Appellant in the face but that the victim was not 

charged with any offense. Detective Foglesong acknowledged that although the area was 

“canvassed thoroughly,” the police never recovered a gun. 

Detective Foglesong said that no shell casings or bullet holes were found at the 

scene or inside the victim’s car. Detective Foglesong acknowledged the victim never told 

the police that he saw the Appellant with two guns or that the Appellant threatened to get 

his gun and shoot the victim. 

Detective Foglesong said that the victim gave an estimate at the scene regarding 

the cost to repair the damage to his car, but Detective Foglesong did not specify the 

amount. Detective Foglesong never obtained an estimate from a repair shop and never 

confirmed that the victim owned the car. 
- 9 -

Detective Foglesong thought the gunshot residue test was performed 

approximately twenty minutes after the Appellant arrived at the police station. Neither 

the victim nor his car was tested for gunshot residue. Although the Appellant’s shirt was 

submitted to the TBI for gunshot residue testing, Detective Foglesong did not think it was 

ever tested. 

On redirect examination, Detective Foglesong said that he never gave anyone a 

blood alcohol test or field sobriety test. He did not think that the victim, Mr. Hykes, or 

Mrs. Hurt was impaired. 

TBI Special Agent Rielly Gray testified as an expert in gunshot primer residue 

analysis. She stated that testing determined that gunshot residue was on both of the 

Appellant’s hands, indicating that he “could have fired, handled, or was near a gun when 

it was fired.” She explained that “the best result [she] could have gotten was from the 

hands” and that the Appellant’s shirt was not tested because she “found a positive result 

for GSR on the hand kit.” 

On cross-examination, defense counsel noted Special Agent Gray’s opinion that 

the Appellant “could have fired, handled, or was near a gun” and asked if “‘[c]ould have’ 

is just another way of saying you’re guessing, right?” Special Agent Gray responded, 

“It’s up to one’s interpretation, but yes.” 

Special Agent Gray acknowledged that she had read literature regarding the 

transfer of gunshot residue from one person to another person. She further acknowledged 

that she did not know “the contamination level that might have occurred prior to the 

sample being taken.” 

On redirect examination, Special Agent Gray said “with absolute certainty that 

there was GSR on the swabs that were taken from both the right and left hand of the 

[Appellant].” 

Eirma R. Jenkins testified that Mrs. Hurt was her sister and that the victim and Mr. 

Hykes were her cousins. Ms. Jenkins lived “diagonally across the street” from Mrs. Hurt. 

Sometime before lunch, Ms. Jenkins and Mr. Hykes were outside the house talking while

Mr. Hykes was on top of a ladder repairing some shingles on the roof. Ms. Jenkins saw 

the victim run across the street from the Hurts’ house. The victim appeared to be upset 

and out of breath. The victim ran inside Ms. Jenkins’ house then came back outside. 

When Ms. Jenkins saw the Appellant run out of the Hurts’ house, she told the victim to 

go back inside her house. Ms. Jenkins saw the Appellant point a gun in the air and fire a 

shot. The Appellant then told the victim, “I’m going to kill you.” Ms. Jenkins heard Mr. 

Hykes tell the Appellant not to come into the yard. 
- 10 -

Ms. Jenkins said the Appellant approached the victim’s car and pointed his gun at 

it, but the gun would not fire. The Appellant hit the car window with the butt of the gun 

and broke out all of the windows. The Appellant “ran around,” and she assumed that he

“went to hide something.” Around that time, Ms. Jenkins’ “defribrillator went off,” and 

she was taken by ambulace to Methodist Hospital. Ms. Jenkins said that she heard only 

one gunshot that day. 

On cross-examination, Ms. Jenkins said that the gunshot she heard occurred when 

the Appellant fired into the air. She recalled that the Appellant’s gun was a silver nickelplated gun. 

The parties stipulated that “[the Appellant] was convicted pursuant to a guilty plea 

of a felony offense, to wit, burglary of a motor vehicle, a class E felony, February 3rd, 

2011 in Shelby County Criminal Court . . . .” The trial court instructed the jury that the 

stipulation related to the charge alleging that the Appellant was a convicted felon in 

possession of a handgun and that the jury could consider the Appellant’s prior felony 

conviction as an element of the charge but for no other purpose.

Charles Hurt, the Appellant’s father, testified on the Appellant’s behalf. Mr. Hurt 

said that on March 21, 2015, the Appellant came home around 9:30 a.m., and worked on 

his bicycle’s flat tire on the front porch. The victim came to the Hurts’ house, and Mrs. 

Hurt gave him a marijuana “runt” that belonged to the Appellant. The Appellant saw the 

marijuana, and the victim told the Appellant that he had gotten it from Mrs. Hurt. 

Mr. Hurt said that the Appellant and Mrs. Hurt argued about the marijuana. Mr. 

Hurt said that he, the victim, and the Appellant began struggling. The Appellant hit Mr. 

Hurt twice on his side, and the victim hit the Appellant in the back. The Appellant asked, 

“Why you going to hit me?” The victim replied, “Brother, I’ll hit you again if you jump 

on my cousin.” 

Mr. Hurt said that eventually the Appellant had the victim in a “choke hold.” Mr. 

Hurt “broke them loose,” and the victim ran out the door and across the street to Ms. 

Jenkins’ house. Mr. Hurt looked out the windows and the door and saw the Appellant 

run to the side of the house. The Appellant returned with a tire iron, yelled, and then 

broke out every window in the victim’s car. Mr. Hurt asserted that he never saw the 

Appellant with a gun. 

Mr. Hurt acknowledged that the Appellant knocked out the windows in the 

victim’s car and said that the Appellant tried to “jump on” Mrs. Hurt. Mr. Hurt did not 

know what caused the injuries to Mrs. Hurt’s face. He recalled that Mrs. Hurt was 

drinking Colt 45 beer that morning and that she was “drunk.” 
- 11 -

On cross-examination, Mr. Hurt agreed that the Appellant was angry with Mrs. 

Hurt because she gave the victim some of the Appellant’s marijuana. He also agreed that 

the Appellant attempted to assault Mrs. Hurt and that the victim came to Mrs. Hurt’s 

defense. He further agreed that after the altercation, the victim ran from the Hurts’ house, 

retrieved a tire iron, and broke out the windows in the victim’s car. Mr. Hurt said that he 

did not see a gun or hear a gunshot. Mr. Hurt conceded that the Appellant was his son 

and that he did not want to see the Appellant get in trouble. 

The forty-three-year-old Appellant testified that on the morning of March 21, 

2015, he wanted to go to the store but discovered that the back tire on his bicycle was 

loose. He went across the street to Ms. Jenkins’ house, borrowed a wrench from a man 

who was working on the house, returned home, and fixed his bicycle. 

The Appellant said that he was on the porch when he heard Mrs. Hurt and the 

victim talking. The Appellant realized she had given the victim some of the Appellant’s

marijuana. He ran inside the house and asked Mrs. Hurt why she had given the 

marijuana to the victim. Mrs. Hurt responded that the victim paid for the marijuana. The 

Appellant said that the victim did not pay for the marijuana and “snatched” it away from 

him. The victim stood up, and he and the Appellant began arguing. Mr. and Mrs. Hurt 

got between the victim and the Appellant. The Appellant said that the victim put him in a 

choke hold, and the Appellant could hardly breathe. The Appellant grabbed the victim’s 

penis so the victim would release him. The Appellant said that the victim pushed Mr. 

Hurt out of the way and “sw[un]g” at the Appellant. The Appellant said that he and the 

victim were fighting and wrestling, and Mrs. Hurt fell. 

The Appellant said that he was mad and that he told the victim, “I got something 

for you.” The Appellant ran outside and picked up a pipe that his nephews used to shoot 

bottle rockets and that Mr. Hurt used to change car tires. The Appellant ran to the front 

of the house and saw the victim running across the street. The Appellant claimed that he 

knocked the windows out of the victim’s car with the pipe. Afterward, he threw the pipe 

in the yard, ran to a cousin’s house, and “caught his wind.” He said that he had cut his 

hand on a broken car window.

The Appellant acknowledged that he was not unfamiliar with the law and

conceded that he had pled guilty to multiple felonies, including two counts of burglary of 

a motor vehicle and one count of selling drugs. The Appellant said that his having a gun 

during the offense was “just something [the State’s witnesses] put together.” 

On cross-examination, the Appellant denied that he assaulted Mrs. Hurt. The 

Appellant said he was upset because Mr. Hurt did not want anyone smoking marijuana in 

the house, and Mrs. Hurt was “just doing what she wanted to do in my father’s house, 
- 12 -

sir.” The Appellant said that he was not upset because Mrs. Hurt had given the victim his 

marijuana. 

The Appellant acknowledged that while he was knocking out the victim’s car 

windows, he was yelling for the victim to come out of Ms. Jenkins’ house. The 

Appellant said that he knocked out the windows because he was mad and that he yelled at 

the victim because he wanted the victim to leave the house. The Appellant wanted the 

victim to come out of Ms. Jenkins’ house because “if we going to fight, we going to fight 

like men.” The Appellant acknowledged that he had a pipe in his hand, that he used the 

pipe to break the car windows, and that he threw the pipe in some grass after he broke the 

windows. The Appellant maintained that he did not intend to use the pipe on the victim. 

The Appellant agreed that a pipe could inflict death or serious bodily injury but 

contended that he feared for his life and that he had to protect his father. The Appellant 

acknowledged that he was not in fear for his life when he broke the car windows and that 

he “wanted [the victim] to fight again.” 

The Appellant thought Mrs. Hurt was injured when she “caught an elbow” during 

his fight with the victim. The Appellant said he weighed 168 pounds, and the victim 

weighed 300 pounds. The Appellant denied assaulting Mrs. Hurt outside the house. The 

Appellant said that the State’s witnesses who testified he assaulted Mrs. Hurt all “said 

something different.” 

The jury convicted the Appellant of aggravated assault, vandalism, and domestic 

assault. The trial court sentenced the Appellant as a Range II, multiple offender to 

consecutive sentences of ten years for the Class C felony aggravated assault conviction, 

six years for the Class D felony vandalism conviction, and eleven months and twentynine days for the Class A misdemeanor domestic assault conviction for a total effective 

sentence of sixteen years, eleven months, and twenty-nine days. 

On appeal, the Appellant contends that (1) the trial court erred by allowing the 

State to argue a new theory during rebuttal, (2) the trial court erred by allowing the victim 

to testify regarding the cost of the repairs to the vehicle; (3) the evidence was not 

sufficient to sustain his convictions of aggravated assault and felony vandalism; and (4) 

the trial court erred by sentencing him for a Class D felony on the theft conviction, by 

erroneously applying enhancement factors, and by imposing consecutive sentencing. 

II. Analysis

A. Rebuttal
- 13 -

On appeal, the Appellant contends that the trial court erred by allowing the State 

to introduce a new theory during rebuttal, namely that the Appellant used a pipe, not a 

gun, to assault the victim. The State responds that the rebuttal was in direct response to 

the Appellant’s closing argument and therefore was not improper. We agree with the 

State. 

The indictment charging the Appellant with aggravated assault provided that the 

Appellant “did unlawfully and knowingly commit an assault on [the victim] and use or 

display a deadly weapon and cause [the victim] to reasonably fear imminent bodily injury 

. . . .” During its case-in-chief, the State presented proof that the gun was the deadly 

weapon used in the assault. Although defense counsel questioned the State’s witnesses 

about a pipe and implied that the Appellant had used a pipe, all of them responded that 

they had not seen the Appellant with a pipe. The Appellant testified that he did not have 

a gun but conceded he threatened the victim with the pipe. 

In its closing argument, the State contended that the deadly weapon was the gun. 

The defense argued that the police never found a gun and that the Appellant used a pipe

to break out the car windows and then threw the pipe in the grass. 

Defense counsel objected as the State began its rebuttal, stating that he anticipated 

the State would discuss the pipe. The trial court overruled the objection as premature, 

stating, “I can’t rule on what you think he might argue.” The State continued, noting that 

the proof showed that the Appellant threatened the victim with a gun and shot at the 

victim as he ran from the Hurts’ house. The State further noted that the indictment 

alleged the Appellant committed aggravated assault by causing the victim to “reasonably 

fear imminent bodily injury by use of or display of a deadly weapon,” but it did not 

specify the type of weapon. At that point, defense counsel requested permission to 

approach the bench, which the trial court denied. 

The trial court repeated its instruction to the jury that the “statements and 

arguments of counsel are not evidence.” The court further instructed the jury that the 

State was not required to prove that the Appellant had a gun, just that the Appellant had a 

deadly weapon. The court explained the State was arguing that if the jury found the 

Appellant did not have a gun but instead had a pipe and that the pipe was capable of 

causing death or serious bodily injury, the pipe could be considered a deadly weapon. 

The Appellant contends that the State’s prosecution of the Appellant centered 

around the theory that the Appellant committed aggravated assault and that the weapon 

used was a gun. The Appellant notes that the State “opened and closed the case with the 

gun theory” and that the State presented witnesses who testified that they saw the 

Appellant with a gun or heard the gunshots. Additionally, the State presented proof that 

gunshot residue was found on the Appellant’s hands. The Appellant contends that on 
- 14 -

rebuttal, the State could not argue that the pipe was the deadly weapon the Appellant 

used. The Appellant argues that by finding the Appellant not guilty of being a felon in 

possession of a handgun but guilty of aggravated assault, the jury found that the 

Appellant did not have a gun. The State responds that its rebuttal was in direct response 

to the Appellant’s closing argument and was therefore proper. 

It is well-established that closing argument is an important tool for both parties 

during a trial; thus, counsel is generally given wide latitude during closing argument, and 

the trial court is granted wide discretion in controlling closing arguments. See State v.

Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such, 

arguments must be temperate, based upon the evidence introduced at trial, relevant to the 

issues being tried, and not otherwise improper under the facts or law.” State v. Goltz, 

111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). 

Tennessee Rule of Criminal Procedure 29.1 governs how closing arguments in 

criminal trials are to be conducted. Rule 29.1(a) provides that “[a]t the close of the 

evidence, the state has the right to make the first closing argument to the trier of facts” 

and that “[t]he state’s first closing argument shall cover the entire scope of the state’s 

theory.” Rule 29.1(b) provides that a “defendant shall be allowed to make a closing 

argument following the state’s first closing argument” and that such “closing argument 

may address any relevant and proper subject and is not limited to matters actually argued 

by the state.” Rule 29.1(c) provides that “[t]he state shall be allowed a final closing 

argument following the defendant’s closing arguments” and that “[t]he state’s final 

closing argument is limited to the subject matter covered in the state’s first closing 

argument and the defendant’s intervening argument.” Further, Rule 29.1(d)(2) provides 

that the trial court 

shall ensure that no defendant is deprived of the opportunity 

to answer a new argument made by the state against that 

defendant . . . and that while the state, having the burden of 

proof, has the right to open and close the argument, this right 

shall not be exercised in such way as to deprive the defendant 

of the opportunity to fully answer all state argument. The 

court, on motion, shall enforce this purpose.

In the instant case, the State’s rebuttal was in direct response to the Appellant’s 

closing argument that he could not be guilty of aggravated assault because he used a pipe, 

not a gun. The State began its rebuttal by stating that the evidence established the 

Appellant used a gun but that, even by the Appellant’s own admission, he had committed 

aggravated assault when he threatened the victim with a pipe, which could be a deadly 

weapon. In examining complaints regarding the State’s rebuttal, this court has stated that 

“[w]here the criminal defendant raises an issue in his defense, he cannot complain of 
- 15 -

references to the issue by the prosecution, or argument on that issue, so long as the 

argument is fairly warranted by the facts and circumstances of the case.” State v. Sutton,

562 S.W.2d 820, 823-24 (Tenn. 1978); see State v. Osayamien Ogbeiwi, No. W2010-

00117-CCA-R3-CD, 2011 WL 3276188, at *16 (Tenn. Crim. App. at Jackson, July 29, 

2011). We conclude that the State did not introduce a “new theory” in its rebuttal and 

was responding to the Appellant’s intervening argument. See State v. Houston, 688 

S.W.2d 838, 841 (Tenn. Crim. App. 1984). 

Further, the record reflects that the Appellant did not ask the trial court to allow 

him to respond to the State’s argument pursuant to Tennessee Rule of Criminal Procedure 

29.1(d)(2). See Tenn. R. App. P. 36(a) (providing that “[n]othing in this rule shall be 

construed as requiring relief be granted to a party responsible for an error or who failed to 

take whatever action was reasonably available to prevent or nullify the harmful effect of 

an error”). We conclude that the Appellant is not entitled to relief. 

B. Cost of Repairs

The Appellant contends that the trial court erred by allowing the victim to testify 

regarding the cost of the repairs to the victim’s car, arguing that his testimony consisted 

of inadmissible hearsay. During direct examination, the victim testified that he had the 

damage to his car repaired. The State then asked, “And do you know what it costs to 

have that repaired?” Defense counsel objected, arguing that the State’s question called 

for hearsay because “[h]e asked him what someone else told him the repair was and that 

would be an out-of-court statement.” The trial court did not respond to defense counsel’s 

argument but instead stated, “He’s asking him how much money he paid to have his car 

repaired. It would not be an out-of-court statement if he’s asking that question.” Defense 

counsel correctly stated that the court had mischaracterized the State’s question. The 

State acknowledged that the victim had insurance but argued that the victim could testify 

to the cost of repairs to his own property. The trial court agreed, stating that the victim

knows what the bill was to repair his car, how much he paid, 

how much the insurance may have covered, those are matters 

that the State has to prove. And those are things that he has 

within his personal knowledge of this is how much I paid out 

of pocket, and insurance paid a certain amount. Not a hearsay 

statement.

Defense counsel responded that the victim had failed to lay the proper foundation 

for the basis of his knowledge. Defense counsel asserted, “If the insurance company told 

him what the total amount of damage was, then he would – that would also call for 

hearsay. So unless they lay a foundation how do you know what this costs, they can’t say 

that without invoking hearsay, which is an out-of-court statement.” Defense counsel 
- 16 -

acknowledged that if a bill or estimate had been provided to the defense, the defense 

would have had a reasonable opportunity to cross-examine the person who provided the 

bill. Defense counsel insisted the State needed to call the person who gave the victim the 

quote or made the repairs. Defense counsel noted, however, that in the instant case, “all 

we have is his testimony, which he can’t testify to what the repairs are. He can only 

testify to what it cost him.” 

The trial court responded that the victim was testifying that “the car was damaged, 

this is how much the bill was, this is how much I was out of pocket, this is how much the 

insurance settled on.” The trial court stated that the victim’s information came from his 

personal knowledge and that “[h]e can testify to his personal loss and expenses that it 

costs him to get the car repaired, how much he was out of pocket, and how much 

insurance may have paid.” The trial court overruled defense counsel’s objection, and 

allowed the victim to testify that the total cost of the repairs was $8,700 and that he paid a 

$500 deductible. The victim did not say who repaired the car and did not say who paid 

the $8,700. 

Later, the trial court made the following statement during a jury-out proceeding:

The objection that was made earlier about the value 

and of [the victim] testifying the value, [701] – Rules of 

Evidence [701] indicates that value – that a witness may 

testify to the value of the witness’s own property or services. 

So [701] under opinion testimony does, in fact, allow a 

witness to give an opinion about the value of his own 

personal property. 

On appeal, the Appellant contends that the only testimony the State adduced 

regarding the amount of damage “was the inadmissible hearsay testimony of [the 

victim].” The Appellant contends that “[w]ithout credible evidence regarding the actual 

repairs from the actual source who can testify as to the nature of auto repairs, the 

evidence is insufficient for a conviction.” The State responds that the victim was 

qualified to testify about the cost of the repairs and that his testimony was not hearsay. 

We agree with the Appellant. 

Hearsay is defined as “a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Tenn. R. Evid. 801(c). Hearsay is inadmissible except as provided by the 

rules of evidence or otherwise by law. Tenn. R. Evid. 802. “[H]earsay evidence has 

traditionally been excluded because of a fear that it is unreliable.” Neil P. Cohen et al., 

Tennessee Law of Evidence, § 8.01[3][a] (6th ed. 2011). “The primary concern is that 
- 17 -

the trier of fact will not be able to hear cross-examination of the declarant, who made the 

out-of-court hearsay statement.” Id. 

This court has observed that “Tennessee Rule of Evidence 602 limits a witness’s 

testimony to matters for which sufficient evidence has been introduced to support a 

finding that the witness had personal knowledge of the matter. Rule 602 provides that 

such evidence ‘may, but need not, consist of the witness’s own testimony.’” State v.

Kenneth Edward Watts, No E2010-00553-CCA-R3-CD, 2011 WL 5517000, at *3 (Tenn. 

Crim. App. at Knoxville, Nov. 8, 2011) (quoting Tenn. R. Evid. 602). Although “[n]onexpert witnesses giving testimony in the form of opinion are limited to opinions that are 

‘rationally based on the perception of the witness,’ . . . property owners are explicitly 

allowed to testify as to the value of their property.” Id. (quoting Tenn. R. Evid. 701); see

State v. Rickman, 631 S.W.2d 448, 450 (Tenn. Crim. App. 1981) (“[A]n owner may 

testify as to the value of his personal property even though he may not qualify as an 

expert on its market value.”). The vandalism statute provides that “[d]amage” includes 

“[t]ampering with property and causing pecuniary loss or substantial inconvenience to the 

owner . . . .” Tenn. Code Ann. § 39-14-408(a)(1)(B). 

In the instant case, however, the victim was not giving his opinion on the value of 

his car but was testifying regarding the cost of the repairs to the vehicle. In State v. Nona 

Pilgram, No. E2004-00242-CCA-R3-CD, 2005 WL 602380, at *4 (Tenn. Crim. App. at 

Knoxville, Mar. 14, 2005), the defendant argued that the trial court erred by admitting the 

victim’s hearsay testimony regarding the fair market value of her vehicle. The victim 

testified that before her vehicle was damaged, she received an unsolicited offer from a 

stranger in a bank parking lot to purchase her vehicle for approximately $4,500 to $5,000. 

Id. She estimated that the vehicle’s value after the damages was between $3,000 and 

$3,500, explaining the number came from several estimates she received regarding the 

cost of repairing the damages to her vehicle. Id. at *2. This court acknowledged that 

“[t]he owner of the property is permitted to testify about her opinion of the value of the 

property.” Id. at *5 (citing Tenn. R. Evid. 701(b)). This court further acknowledged that 

“the value of the cost of repairs is an appropriate means of determining the value of the 

damage sustained to the vandalized property.” Id. (citing State v. Terry W. Bean, No. 

M2003-02062-CCA-R3-CD, 2004 WL 2412622, at *3 (Tenn. Crim. App. at Nashville, 

Oct. 28, 2004)). Nevertheless, this court concluded that the victim “was properly allowed 

to give her opinion of the diminution in her vehicle’s value pursuant to Rule 701(b) [but] 

that the victim’s testimony exceeded the permissible ambit of that rule because she 

testified not merely as to her opinion, but repeated hearsay as the basis of her opinion.” 

Id. In other words, testimony based upon the victim’s personal knowledge of the value of 

the victim’s property, which normally is admissible pursuant to Rule 701, is not 

admissible if the victim’s knowledge is based solely upon the hearsay statement of a third 

person (the declarant) which is made outside of court and is offered through the victim’s 
- 18 -

testimony for the truth of the matter asserted, as in this case, the total cost of repairs of 

the vehicle.

In the instant case, the Appellant challenged the victim’s testimony because the 

State failed to establish the basis of the victim’s knowledge of the cost of the repairs to 

his vehicle. The victim’s testimony was clearly offered for the truth of the matter 

asserteed. We agree with the Appellant that the basis of the victim’s knowledge was 

crucial to whether his testimony was hearsay. Because the victim merely was repeating 

what someone else said the cost of the repairs were, without having first-hand knowledge

of the information, his testimony was inadmissible hearsay. See State v. Larkin, 383 

N.W.2d 804, 805 (Neb. 1986). We conclude that the trial court erred by ruling that the 

victim’s testimony was admissible. 

As the Appellant noted, the trial court misconstrued the State’s question to the 

victim. We agree that if the State had asked the victim how much he paid personally to 

have his vehicle repaired, his response would not have been hearsay because it would 

have been based upon his first-hand knowledge. That was not the State’s question at 

trial. Instead, the State asked the victim what it cost to have the vehicle repaired, without 

eliciting the source of the information. Notably, the victim’s testimony suggested that the 

repairs were paid for by his insurance company, that the only way he could have known 

the cost of the repairs was from information from a third party, and that he repeated the 

third-party information in court for the truth of the matter asserted, which is inadmissible 

hearsay. Clearly, the victim’s testimony that the cost of repairs to his vehicle was $8,700 

was what someone else told him; therefore, we conclude that the trial court should have 

excluded this testimony. 

C. Sufficiency of the Evidence

The Appellant contends that the evidence was insufficient to sustain his conviction 

of aggravated assault, maintaining that the jury did not believe he had a gun and that the 

pipe did not meet the statutory definition of a deadly weapon. See Tenn. Code Ann. §§

39-13-102(a)(1)(A)(iii) (aggravated assault); 39-11-106(a)(6) (definition of deadly 

weapon). The Appellant also contends that the evidence was insufficient to sustain his 

conviction of vandalism of $1,000 or more but less than $10,000. See Tenn. Code Ann. 

§§ 39-14-408(b)(1) (vandalism); 39-14-105(a)(3) (value). The State contends that the 

evidence was sufficient to sustain the Appellant’s convictions. 

On appeal, a jury conviction removes the presumption of the Appellant’s 

innocence and replaces it with one of guilt, so that the Appellant carries the burden of 

demonstrating to this court why the evidence will not support the jury’s findings. See

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The Appellant must establish that no 

reasonable trier of fact could have found the essential elements of the offense beyond a 
- 19 -

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 

13(e).

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

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the 

credibility of witnesses and the weight and value to be given the evidence, as well as all 

factual issues raised by the evidence, are resolved by the trier of fact, and not the 

appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

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). Even though convictions may be established by different forms of 

evidence, the standard of review for the sufficiency of that evidence is the same whether 

the conviction is based upon direct or circumstantial evidence. See State v. Dorantes, 

331 S.W.3d 370, 379 (Tenn. 2011). 

1. Aggravated Assault

Aggravated assault as charged in the indictment occurs when a person 

intentionally or knowingly commits an assault, and the assault involved the use or display 

of a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii). A person commits 

assault when the person “[i]ntentionally or knowingly causes another to reasonably fear 

imminent bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2). 

The Appellant contends that the jury’s acquittal on the felon in possession of a 

deadly weapon charge meant it necessarily concluded that the Appellant did not possess a 

gun; therefore, the evidence was not sufficient to sustain his conviction of aggravated 

assault. The Appellant maintains that the jury must have convicted him under the State’s 

“new pipe theory” and argues that the pipe or tire iron does not meet the definition of a 

deadly weapon. The State urges this court not to engage in “inappropriate speculation” 

by “disturb[ing] seemingly inconsistent verdicts.” The State contends that the proof 

adduced at trial was sufficient to sustain the Appellant’s conviction of aggravated assault. 

We agree with the State. 

Our supreme court has examined whether inconsistent verdicts entitle a defendant 

to relief and concluded that “‘the overwhelming authority supports the rule that 

consistency between verdicts on separate counts of an indictment is not necessary.’” 

State v. Davis, 466 S.W.3d 49, 76 (Tenn. 2015) (citing Wiggins v. State, 498 S.W.2d 92, 

93 (Tenn. 1973)). Our supreme court emphasized that “‘[t]he validity accorded to 

[inconsistent] verdicts recognizes the sanctity of the jury’s deliberations and the strong 
- 20 -

policy against probing into its logic or reasoning, which would open the door to 

interminable speculation.’” Id. (quoting United States v. Zane, 495 F.2d 683, 690 (2nd 

Cir. 1974)). This court has explained that “in examining the sufficiency of the evidence, 

we look solely at the evidence regarding the convicting offense. We will not attempt to 

divine some hidden meaning from the jury’s actions regarding a separate count of the 

indictment.” State v. Finch, 465 S.W.3d 584, 602 (Tenn. Crim. App. 2013), overruled on 

other grounds by State v. Menke, 590 S.W.3d 455 (Tenn. 2019). Any inconsistencies in 

the verdicts have no bearing on whether the evidence was sufficient to sustain the 

Appellant’s convictions. 

We note that several of the State’s witnesses, namely Mrs. Hurt, the victim, Ms. 

Jenkins, and Mr. Hykes, saw the Appellant threaten the victim with a gun. The 

Appellant’s use of a gun was corroborated by the presence of gunshot residue on his

hands. We conclude that the evidence was sufficient to sustain the Appellant’s

aggravated assault conviction. See State v. Terance P. Bradley, No. M2017-00376-CCAR3-CD, 2018 WL 934583, at *6 (Tenn. Crim. App. at Nashville, Feb. 15, 2018); State v.

Doyan Anderson, No. W2015-02405-CCA-R3-CD, 2017 WL 2275808, at *4-5 (Tenn. 

Crim. App. at Jackson, May 24, 2017).

2. Vandalism

The vandalism statute, Tennessee Code Annotated section 39-14-408, provides:

(a) For purposes of this section:

(1) “Damage” includes, but is not limited to:

(A) Destroying, polluting, or contaminating property;

(B) Tampering with property and causing pecuniary loss or 

substantial inconvenience to the owner or a third person;

. . . .

(b) A person commits the offense of vandalism who 

knowingly:

(1) Causes damage to or the destruction of any real or 

personal property of another or of the state, the United States, 

any county, city, or town knowing that the person does not 

have the owner’s effective consent;

. . . .

At the time of the offenses, vandalism was a Class D felony if the value of the damage 

was $1,000 or more but less than $10,000. Tenn. Code Ann. § 39-14-105(a)(3). 

Once again, the Appellant argues that “[t]he only testimony regarding the amount 

of damage was the inadmissible hearsay testimony” of the victim. As we stated earlier, 
- 21 -

we agree with the Appellant. However, this does not end our analysis. We must 

determine what effect the erroneous admission of the hearsay testimony had on the 

Appellant’s vandalism conviction. 

Our supreme court “mandates that when conducting a sufficiency of the evidence 

review following a finding of erroneous admission of some evidence, the appellate court 

should conduct the sufficiency review based on the inclusion of the erroneously admitted 

evidence.” State v. Ramie Anderson, No. M2005-02086-CCA-R3-CD, 2006 WL

2380604, at *9 (Tenn. Crim. App. at Nashville, Aug. 17, 2006) (citing State v.

Longstreet, 619 S.W.2d 97 (Tenn. 1981)). The rationale underlying this mandate is twofold: 

First, it is impossible to know what additional evidence the 

government might have produced had the faulty evidence 

been excluded at trial or what theory the government might 

have pursued had the evidentiary ruling of the trial court been 

different. A rule which would require the government to 

introduce all available evidence and assert every possible 

legal theory in anticipation of appellate reversal of trial court 

rulings would unduly prolong and clutter the original trial. 

Second, there is a risk that appellate courts would be less 

zealous in protecting the pretrial and trial rights of the 

accused if they knew reversal of a trial court’s ruling would 

bar further prosecution.

Longstreet, 619 S.W.2d at 101 (citing United States v. Harmon, 632 F.2d 812 (9th Cir. 

1980)). Our supreme court explained that 

“reversal for trial error, as distinguished from evidentiary 

insufficiency, does not constitute a decision to the effect that 

the government has failed to prove its case. As such, it 

implies nothing with respect to the guilt or innocence of the 

defendant. Rather, it is a determination that a defendant has 

been convicted through a judicial process which is defective 

in some fundamental respect, e.g., incorrect receipt or 

rejection of evidence, incorrect instructions, or prosecutorial 

misconduct. When this occurs, the accused has a strong 

interest in obtaining a fair readjudication of his guilt free from 

error, just as society maintains a valid concern for insuring 

that the guilty are punished.”

Id. (quoting Burks v. United States, 437 U.S. 1, 15 (1978). Therefore, we conclude that 
- 22 -

the proper course is to reverse the Appellant’s vandalism conviction and remand for a 

new trial on that charge. 

D. Sentencing

The Appellant’s final issues concern various sentencing errors he claims were 

made by the trial court, including sentencing the Appellant for a Class D felony for the 

vandalism conviction, erroneously applying enhancement factors, and imposing 

consecutive sentencing. At the sentencing hearing, the Appellant’s presentence report 

was submitted as an exhibit. The trial court found that the Appellant was a Range II, 

multiple offender. The trial court observed that the Appellant’s actions “made no sense” 

and “escalated to a position that it never should have been.” The trial court found that the 

Appellant had multiple criminal convictions in addition to those necessary to establish the 

appropriate range, including possession of a counterfeit substance, assault, theft, 

soliciting a ride, disorderly conduct, burglary of a motor vehicle, attempted burglary, 

aggravated criminal trespass, driving on a revoked license, and vandalism. Tenn. Code 

Ann. § 40-35-114(1). The trial court noted that a “validated risks and needs assessment” 

rated the Appellant “a high risk for violent crimes.” 

The trial court found by a preponderance of the evidence that the Appellant 

possessed and employed a firearm in the commission of the offenses. Id. at (9). The trial 

court further stated that the Appellant “was adjudicated to have committed a delinquent 

act or acts as a juvenile that would constitute a felony if committed as an adult,” noting 

that the Appellant had adjudications for selling cocaine, attempting to break into a car, 

and threatening his mother with a knife. Id. at (16). The court also found that the 

Appellant had been granted probationary sentences previously and that he had violated 

his terms of probation. Id. at (8). The trial court did not apply any mitigating factors. 

The trial court sentenced the Appellant to ten years for the aggravated assault

conviction, a Class C felony; six years for the vandalism conviction, a Class D felony;

and eleven months and twenty-nine days for the domestic assault conviction, a Class A 

misdemeanor. 

Regarding discretionary consecutive sentencing, the trial court found that the 

Appellant was an offender whose record of criminal activity was extensive, noting that 

most of his life, [the Appellant] has been arrested and charged 

with crimes. And, since he’s been an adult, since the age of 

eighteen, there is probably not a period of time where you can 

look at more than six months or a year that [the Appellant] 

has not been arrested, has not been charged, has not been 

convicted for a variety of crimes, including property crimes 
- 23 -

and including assaultive behavior committed against other 

people. 

The court also found that the Appellant was a dangerous offender who had little 

hesitation in committing a crime in which the risk to human life was high. The court 

stated that the circumstances of the offense were aggravated, noting that “[t]his is a silly, 

nonsensical, violent offense” that began with an argument over two or three dollars worth 

of marijuana. The court stated the Appellant possessed a gun and fired shots in a 

populated area, risking injury to multiple people. The court also found “that the 

aggregate length of the sentences are reasonably related to the severity of the offenses for 

which the [Appellant] stands convicted” and “that consecutive sentences are necessary in 

order to protect Shelby County from further criminal acts by [the Appellant].” 

The trial court found that the Appellant was a professional criminal, noting that the 

presentence report reflected that since the Appellant was a juvenile, he had committed 

multiple burglaries of motor vehicles, multiple assaults, theft, and vandalism. The 

Appellant reported having only one job and stated that the job lasted approximately one 

year, but the employment could not be verified. 

The trial court ordered the Appellant’s sentences to be served consecutively for a 

total effective sentence of sixteen years, eleven months, and twenty-nine days and denied 

alternative sentencing. 

This court reviews the length, range, and manner of service of a sentence 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); see also State v.

Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive 

sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the 

standard to alternative sentencing). In conducting its review, the trial court considers 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 enhancement and 

mitigating 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 Appellant in his own behalf; and (8) the potential for rehabilitation or treatment. 

See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. 

The burden is on the Appellant to demonstrate the impropriety of his sentences. See

Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts. 

1. Offense Classification
- 24 -

On appeal, the Appellant contends that the trial court erred by sentencing him for a 

Class D felony for the vandalism conviction. However, because we have concluded that 

the conviction must be remanded for retrial regarding the amount of the damages, this 

issue is moot. 

2. Length of Sentences

Next, the Appellant challenges the length of the sentences imposed by the trial 

court. In determining a specific sentence within a range of punishment, the trial court 

should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is 

the sentence that should be imposed, because the general 

assembly set the minimum length of sentence for each felony 

class to reflect the relative seriousness of each criminal 

offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, 

as appropriate, by the presence or absence of mitigating and 

enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c). 

Although the trial court should consider enhancement and mitigating factors, the 

statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see 

also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our 

supreme court has stated that “a trial court’s weighing of various mitigating and 

enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 

345. In other words, “the trial court is free to select any sentence within the applicable 

range so long as the length of the sentence is ‘consistent with the purposes and principles 

of [the Sentencing Act].’” Id. at 343 (quoting Tenn. Code Ann. § 40-35-210(d)). 

Appellate courts are “bound by a trial court’s decision as to the length of the sentence 

imposed so long as it is imposed in a manner consistent with the purposes and principles 

set out in sections -102 and -103 of the Sentencing Act.” Id. at 346. 

The Appellant contends that the trial court erred by applying enhancement factors 

(1), (8), and (9). Tenn. Code Ann. § 40-35-114(1), (8), and (9). Regarding enhancement 

factor (1), the Appellant admits that he has a history of criminal convictions but asserts 

that the history “does not include violent felonies.” The Appellant argues “that use of 

criminal history alone to support a maximum sentence results in an illogical conclusion,”

noting that because an offender’s criminal history determines his sentencing range, other 

factors should be required to impose the maximum sentence. 
- 25 -

At the sentencing hearing, the trial court found that the Appellant had multiple 

criminal convictions in addition to those necessary to establish the appropriate range, 

including possessing a counterfeit substance, assaults, theft, soliciting a ride, disorderly 

conduct, burglaries of a motor vehicle, attempted burglary, aggravated criminal trespass, 

driving on a revoked license, and vandalism. Tenn. Code Ann. § 40-35-114(1). The trial 

court noted that the Appellant’s prior criminal convictions included “violent offenses.” 

The trial court did not err by applying this enhancement factor. This court repeatedly has 

approved of a trial court’s imposing a maximum sentence upon applying enhancement 

factor (1) alone. See State v. Rickey Lee Brown, Jr., No. M2015-01730-CCA-R3-CD, 

2016 WL 4973078, at *4 (Tenn. Crim. App. at Nashville, Sept. 16, 2016); State v.

Minlando Cordell Young, No. M2014-00115-CCA-R3-CD, 2014 WL 4794997, at *4 

(Tenn. Crim. App. at Nashville, Sept. 26, 2014). Thus, the trial court did not err by 

imposing the maximum sentences solely on the basis of enhancement factor (1). 

Nevertheless, the record reflects that the trial court also applied three other enhancement 

factors. 

Regarding enhancement factor (8), the Appellant contends that “there is no 

support in the record that the [Appellant] failed to comply with conditions for release in 

relation to this charge, only that he violated probation in the past.” Tenn. Code Ann. §

40-35-114(8). The Appellant has misconstrued this enhancement factor. Factor (8) 

provides for enhancement of a sentence upon finding “that before trial or sentencing, [the 

Appellant] failed to comply with the conditions of a sentence involving release into the 

community.” The Appellant has cited no caselaw to support his argument. To the 

contrary, our courts have held that a prior history of probation violations is sufficient for 

application of this enhancement factor. State v. Jamie Crowell, No. W2017-00799-CCAR3-CD, 2018 WL 2338209, at *9 (Tenn. Crim. App. at Jackson, May 23, 2018), perm. to 

appeal denied, (Tenn. Sept. 14, 2018); State v. Darrell Wayne Bumpas, No. M2017-

00746-CCA-R3-CD, 2018 WL 817289, at *7 (Tenn. Crim. App. at Nashville, Feb. 12, 

2018). We conclude that the trial court did not err by applying this enhancement factor. 

Regarding enhancement factor (9), the Appellant contends that the trial court erred 

because the jury acquitted him of being a felon in possession of a gun; thus, “the jury 

determined there was no gun.” Tenn. Code Ann. § 40-35-114(9). As we noted earlier, 

we do not agree that by acquitting the Appellant of that offense, the jury necessarily 

found that the Appellant did not have a gun. Regardless, the Appellant acknowledges 

that State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000), held that a trial court could

“apply an enhancement factor based on facts underlying an offense for which the 

defendant has been acquitted,” but he argues that the trial court failed to make factual 

findings “to resolve the conflicts in the evidence and to make credibility determinations”

as required by Winfield. The record belies this contention. At the sentencing hearing, 

the trial court found that the Appellant used a gun during the commission of the crimes. 
- 26 -

The trial court did not err in applying enhancement factor (9) to his convictions of 

vandalism and domestic assault. However, because the use of a deadly weapon was an 

essential element of the offense of aggravated assault, we conclude that the trial court 

erred by applying enhancement factor (9) to the sentence for that conviction. See

Tenn.Code Ann. § 40-35-114. Nevertheless, given the remaining enhancement factors, 

we further conclude that the trial court did not err by imposing the maximum sentences 

for each offense. 

3. Consecutive Sentencing

Finally, the Appellant argues that the trial court erred by imposing consecutive 

sentencing. Generally, “[w]hether sentences are to be served concurrently or 

consecutively is a matter addressed to the sound discretion of the trial court.” State v.

Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated 

section 40-35-115(b) contains the discretionary grounds for imposing consecutive 

sentencing, and the imposition of a single ground “is a sufficient basis for the imposition 

of consecutive sentences.” Pollard, 432 S.W.3d at 862.

Although the trial court also found that the Appellant was a dangerous offender 

and a professional criminal, we conclude that the trial court’s decision to impose 

consecutive sentencing was justified solely by its finding that the Appellant had an 

extensive criminal history. This court has stated that “an extensive criminal history, 

standing alone, is enough to justify the imposition of consecutive sentencing.” State v. 

Nelson, 275 S.W.3d 851, 870 (Tenn. Crim. App. 2008). 

III. Conclusion

The Appellant’s conviction of vandalism is reversed, and the case is remanded for 

a new trial on that charge. The Appellant’s judgments are affirmed in all other respects. 

_________________________________

NORMA MCGEE OGLE, JUDGE