IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 30, 2021 Session

STATE OF TENNESSEE v. TYLER WARD ENIX

Appeal from the Criminal Court for Knox County

No. 107024 Steven Wayne Sword, Judge

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No. E2020-00231-CCA-R3-CD

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Tyler Ward Enix, Defendant, was indicted for three counts of first degree felony murder, 

one count of premeditated first degree murder, one count of especially aggravated robbery, 

one count of especially aggravated kidnapping, and one count of carjacking. The trial court 

dismissed the kidnapping and carjacking counts at the State’s request. After a jury trial, 

Defendant was found not guilty of felony murder. The jury found Defendant guilty of first 

degree premeditated murder and especially aggravated robbery. After the jury deadlocked 

on a sentence for first degree murder, the trial court imposed a life sentence. After a 

separate sentencing hearing, the trial court ordered Defendant to serve a consecutive 

twenty-five-year sentence for especially aggravated robbery. The trial court denied a 

motion for new trial and this appeal followed. On appeal, Defendant raises the following 

issues: (1) the evidence was insufficient to support the convictions for first degree murder 

and especially aggravated robbery; (2) the State made improper statements during closing 

argument; (3) the State made improper statements during opening statements; (4) the trial 

court improperly admitted hearsay evidence; (5) the trial court abused its discretion in 

admitting multiple photographs of the victim’s body; (6) the trial court erred by denying a 

motion for change of venue; (7) the trial court erred in refusing to give a definition of 

passion to the jury; and (8) cumulative errors After a thorough review of the record and 

applicable authorities, we affirm Defendant’s convictions and sentences. 

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J. and ROBERT L. HOLLOWAY, JR., JJ., joined.

Mark Stephens, District Public Defender; Jonathan Harwell (at trial and on appeal); John 

Halstead (at trial), District Public Defenders, Knoxville, Tennessee, for the appellant, Tyler 

Ward Enix.

05/26/2021
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Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Senior 

Assistant Attorney General; Charme P. Allen, District Attorney General; Kevin Allen and 

Molly Martin, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Knox County Grand Jury returned a multi count indictment of felony murder, 

premeditated first degree murder, especially aggravated robbery, especially aggravated 

kidnapping, and carjacking for Defendant’s role in the death of his ex-wife Kimberly Enix. 

At trial, 90-year-old Dorothy Graham testified that she was the victim’s 

grandmother and that she “raised her” and put her through college. The victim became a 

social worker and married Chris Morrison in May of 2000 while she was still in college. 

The couple had two daughters. The victim and Mr. Morrison were divorced in 2006, and 

the victim eventually married Defendant. Ms. Graham acknowledged that the victim’s 

sister had a problem with alcohol but testified that she did not know if the victim also had 

an issue with alcohol.

Ms. Graham confirmed that Defendant and the victim had divorced. She testified 

that the victim and Defendant were “not [married] very long” because Defendant “was 

violent.”

In October of 2015, Ms. Graham lived in Fountain City. The victim also lived in 

Fountain City in an apartment with the victim’s and Defendant’s daughter. Ms. Graham 

and the victim had contact with each other “about every day.” 

Ms. Graham spoke with the victim around 7:30 p.m. on the night before she died. 

When Ms. Graham did not hear from the victim the next day, she called the victim’s place 

of employment. Ms. Graham was informed that the victim did not show up for work. 

Chris Morrison testified that he and the victim were married. He claimed the victim

“picked up some negative peers” and “[a]t times” drank to excess. He testified that after 

he and the victim got married, he had to finish college but that the victim moved back to 

Knoxville to start working. Mr. Morrison recalled arguments in the early years of their 

marriage. The victim often became physical, especially when she had been drinking. He 

described her as “volatile” and irrational when alcohol was involved. The victim was even 

arrested in 2005 for assaulting Mr. Morrison and his mother. Despite the victim’s tendency 

to abuse alcohol, Mr. Morrison described “good” periods of time during which the victim 

quit drinking. 
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Mr. Morrison and the victim shared custody of their children after the divorce in 

2006. Mr. Morrison thought that the victim met Defendant sometime around 2012. She 

continued to drink after she met Defendant. Mr. Morrison described things as “really 

volatile” after the Defendant and the victim had a daughter.

During this period of time, Mr. Morrison took the victim to court several times in 

an attempt to “take away parenting time.” Mr. Morrison explained that the couple’s 

children would call him from the victim’s house, and he would hear “screaming [and] 

yelling” between the victim and Defendant in the background. On cross-examination, Mr. 

Morrison described several incidents which occurred at the victim’s house which he either 

overhead while on the phone with one of his children or about which his children later 

described to him. During these incidents, Mr. Morrison heard screaming and what he 

thought was fighting between the victim and Defendant. One of these incidents in 

September of 2014 culminated with Mr. Morrison filing a warrant to have the victim 

arrested for an assault on one of their daughters. During the incident, it was alleged that 

Defendant “made an inappropriate comment regarding [one of the children’s] butt[s] . . . 

like, she had a nice ass or something.” The victim was arrested, but the warrant was 

eventually dismissed. 

After this incident, Mr. Morrison secured an order of protection prohibiting 

Defendant from having contact with Mr. Morrison’s children. There was also an order of 

protection against the victim. As part of that order of protection, Mr. Morrison sought an 

emergency hearing in chancery court. Eventually, Mr. Morrison and the victim came to an 

agreement with regard to visitation. As part of this agreement, the victim was supposed to 

“do individual counseling” and eventually “participate in family therapy with a 

psychologist” with the ultimate goal of getting “more time” with the children. The victim 

also agreed not to drink alcohol for one year. Mr. Morrison thought Defendant complied 

with the order of protection but suspected that Defendant “was still hanging around” the 

victim’s house. Mr. Morrison learned that the victim and Defendant were divorced in the 

spring of 2015. 

Mr. Morrison testified that the victim seemed dedicated to working toward 

regaining visitation with her daughters. The victim progressed from no contact with the 

children to increased visitation with the children. However, in the summer of 2015, the 

children informed Mr. Morrison that they thought Defendant was coming around the 

victim’s house again. 

Elizabeth Guy worked at Beverly Park Place Health and Rehab, also known as 

Hillcrest North, as the social services director. Ms. Guy worked with the victim. Ms. Guy 
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described the victim as “sweet as pie” and “relieved” after her divorce from Defendant was 

final. Ms. Guy last saw the victim on the day prior to her death. 

The next day, Ms. Guy was concerned when she learned that the victim did not show 

up for work. She “knew something was wrong” because the victim had not called to say 

that she would be late or absent from work. She recalled that the victim told her a year 

prior, “if I don’t show up to work, you come find me, and you go to [Defendant].” She 

also recalled that the victim told her Defendant said she would be in a “body bag” if she 

ever left Defendant. 

On the day the victim failed to show up for work, Ms. Guy called the police to 

perform a welfare check on the victim. After the welfare check, the police told her that 

there was nothing they could see to suggest foul play and that the family could report the 

victim missing after twenty-four hours. Ms. Guy informed the police that there was a twoyear-old also missing. This information prompted the issuance of an Amber Alert. 

David Malone, a social worker at Beverly Park Health and Rehab, also worked with 

the victim. He and the victim had gone on five or six dates prior to her death. Their 

relationship was physical, and they frequently exchanged text message with each other. 

Mr. Malone was concerned when the victim did not show up for work. 

The records custodian for the Knox County Emergency Communications District 

911, Michael Alan Mays, testified that there was a call from Defendant’s address on 

October 28, 2015, at 11:00 a.m. This was the first call from that residence that year. 

Sergeant Michael Perry of the Knoxville Police Department performed the welfare 

check at the victim’s apartment on October 28, 2015. During the initial check, there did 

not appear to be any sign of forced entry, and there did not seem to be anything amiss when 

Sergeant Perry peered through the windows. Eventually, Officer Perry came back to the 

residence with another officer, Ryan Kuykendall. The officers entered the residence 

through an unlocked back door. Officer Perry found the victim “laying in [an upstairs] 

bedroom, obviously deceased, blood everywhere.” There was a “towel covering her upper 

body from around her chest up over her head and face.” Near the victim’s body, police 

located a broken pink iPhone and the victim’s black cell phone. Defendant’s fingerprint 

was found on the black cell phone. Telephone records confirmed that there were several 

calls placed between the victim’s and Defendant’s phones on the evening of October 27. 

A neighbor later reported that he saw Defendant driving the victim’s car on the 

morning of October 28, and Defendant’s van was found parked about 400 yards from the 

victim’s apartment. 
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Defendant was arrested in Morrow County, Ohio on October 29 as a result of a tip 

related to the Amber Alert. He was driving the victim’s car and had $305 in cash. A pair 

of blue jeans was taken from the car. The jeans contained a red stain. The couple’s 

daughter was in the car with him unharmed. 

The victim’s debit card, for which she was the only signatory, was used at 

Walgreens on October 27 at 6:19 p.m. Surveillance video showed the victim and her 

daughter in the store. The account also had withdrawals of $300 at 8:33 a.m. on October 

28 and two different $200 withdrawals on October 29 in Ohio. Photographs from these 

transactions on October 28 and 29 showed Defendant driving the victim’s car during the 

account withdrawals. 

According to the medical examiner, the victim was stabbed a total of 47 times. Of 

those stab wounds, several could have been fatal if rendered by themselves. The stab 

wounds included 16 wounds to the chest and upper abdomen, 17 stab wounds to the back, 

two stab wounds to the left lower abdomen, one stab wound to the right side of the neck, 

six stab wounds to the left side of the neck, two stab wounds to the top of the left shoulder, 

one stab wound on the left cheek, one stab wound to her left hand, and one stab wound to 

her left forearm. The victim also had a number of bruises, including defensive wounds. 

The medical examiner determined that the cause of death was multiple stab wounds. The 

medical examiner was unable to determine the time of the victim’s death or whether the 

injuries were inflicted while the knife was moving or while the victim was moving. 

The Tennessee Bureau of Investigation evaluated evidence taken from the scene and 

from the car Defendant was driving at the time of his arrest. Defendant’s DNA was found 

under the victim’s fingernails and his blood matched blood on tissues in bathroom in the 

victim’s apartment. The jeans found in the car Defendant was driving at the time of his 

arrest contained blood matching the victim’s DNA. 

Investigator Michael Booker, the lead investigator, testified about his examination 

of the crime scene. He explained that because a “very high percentage of the blood [was] 

low” to the ground, it “led [him] to conclude that [the victim] was stabbed while she was 

on the ground.” 

FBI Special Agent Stephen McFall testified as a computer forensic examiner 

regarding cell phones found at the scene. He was unable to extract any data from the pink 

iPhone recovered at the scene because it was broken. Another phone, identified as a Tmobile phone used by the victim until October 15 contained several audio files. 

Some of the audio files were played for the jury. During one of the audio files, the 

victim and Defendant can be heard arguing about food. Defendant accused the victim of 
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taking away food before he could eat it. The victim can be heard saying Defendant was 

“unwanted” at her home because they were “divorced.” Defendant called the victim a 

“heartless whore” and told the victim she would not “have this place when [he was] done 

with [her].” In another recording, Defendant told the victim that he did not want their 

daughter around any men. Defendant threatened to “break” the victim’s neck.

Special Agent McFall testified that there were numerous photographs on the phone 

but that none of the photographs contained Defendant. The State introduced a multitude 

of text messages between Defendant and the victim. In some of these messages, Defendant 

claimed that the victim had “no morals” and that she had a “drinking problem.” 

A Samsung phone belonging to Defendant was also analyzed by Special Agent 

McFall. On this phone, there were pictures of alcoholic drinks and quite a few pictures of 

a child. The web history on the phone included visits to sites about how to “burn your 

house down” and a biography.com entry for Casey Anthony. Special Agent McFall 

explained that Casey Anthony was the mother of a child killed in Florida who was later 

tried for the child’s murder.

1

Defendant’s phone contained a multitude of “notes.” The notes appeared to 

document incidents where the victim was drinking and/or violent. One entry, dated 

September 22, 2015, read: “She is drunk uncontrollably . . . and had four tramadols. . . . 

She stabbed me again with butter knife tonight. Third time in 14 months. My scars on 

back are more than enough proof.” An October 6 note documents the victim’s “daily” 

drinking and threats against Defendant. On another occasion, Defendant again mentions 

the victim’s “daily” drinking and threats. Many of these text messages between the victim 

and Defendant spanning from to September of 2015 were read aloud to the jury. These 

messages had been deleted from Defendant’s phone but were recovered using computer 

software. There were text messages discussing arrangements to see his and the victim’s 

daughter. Defendant expresses repeated concern that the victim was dating someone else. 

There were several text messages during which the victim asked Defendant to leave her 

alone or stop contacting her. The victim also accused Defendant of failing to respect her 

boundaries. The final exchanges on October 27 include a request by Defendant to get his 

“stuff” and text messages about spending time with their daughter and asking to spend the 

night in “the girls room.”

Special Agent McFall also recovered Facebook messages that were exchanged 

between the victim and Defendant using an app called Talkatone. There were multiple 

messages from Defendant in which he asked the victim if she was dating someone. In one 

 

1 Defense counsel objected to this testimony. The trial court ordered the jury to disregard the 

testimony about Casey Anthony. 
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message, the victim responded that she did not “have to prove anything” to Defendant 

because they were “DIVORCED PERIOD.” The victim sent a message in which she asked 

Defendant to leave her alone. On October 25, Defendant told the victim he had no where 

to stay, and she replied that he could “not stay [at her house] period.” 

Defendant, who did not testify, put on proof including several stipulations. One of 

the stipulations provided that both Defendant and the victim were on the lease for the 

apartment. Another stipulation included information that a man named Bill Coker loaned 

Defendant money on occasion and actually loaned Defendant $40 on October 27.

Richard Guinn testified that he lived close to the parking lot at the veterinary clinic 

where Defendant’s vehicle was discovered. He recognized Defendant and testified that he 

had seen him in the parking lot on more than one occasion. Defendant would park in the 

lot and wait on a “lady in a dark vehicle” to pick him up. Mr. Guinn thought that it was 

Defendant’s wife that would pick him up. 

At the State’s request, the trial court dismissed the kidnaping and carjacking counts. 

The jury acquitted Defendant of felony murder but found Defendant guilty of premeditated 

first degree murder and especially aggravated robbery. After a bifurcated sentencing 

hearing, the jury could not agree on a sentence for the murder conviction. The trial court 

imposed a mandatory life sentence. After a separate sentencing hearing, the trial court 

sentenced Defendant to twenty-five years for the especially aggravated robbery conviction, 

to be served consecutively to the life sentence. 

Defendant filed a timely motion for new trial. After a hearing, the trial court denied 

the motion and this appeal followed. 

Analysis

Change of Venue

Defendant challenges various aspects of his conviction on appeal. We have 

reordered the issues to facilitate our discussion on appeal. One of the issues raised by 

Defendant is that the trial court erred in denying a motion for change of venue “in light of 

the overwhelming and prejudicial pre-trial publicity.” The State argues that this issue was 

waived because Defendant failed to renew his motion for change of venue after voir dire 
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and because Defendant failed to provide a record demonstrating that he exhausted all of 

his peremptory challenges.2

Defendant filed a motion for change of venue. Prior to jury selection, the trial court 

issued an order on the motion. The trial court went through various factors to determine 

whether Defendant could receive a fair trial. After discussing the various factors, the trial 

court denied the motion determining that Defendant could receive a fair trial from a Knox 

County jury. The trial court noted that it would “conduct a case specific jury orientation 

with a venire dedicated solely to this case,” instruct the jurors to avoid the media, and give 

jurors written questionnaires. The trial court also noted that Defendant could renew his 

request during or at the conclusion of the jury selection process.

At the beginning of voir dire, counsel for Defendant made 13 challenges for cause 

based solely on the responses to the jury questionnaire. One of these jurors had already 

been relieved by the trial court and the parties agreed to remove one other juror from the 

panel. The trial court reserved ruling on the remaining challenges for after voir dire. The 

trial court then permitted each of the lawyers to question possible jurors.

During initial questioning, the jury panel was asked if they had seen any media 

information about the case. One of the jurors commented that he or she saw an article 

about the case but did not read it. Another identified juror stated that he or she heard 

coworkers talking about the case. 

After general questioning of potential jurors, the parties determined that seven of 

the potential jurors should be questioned individually. After extensive questioning, the 

parties agreed that four of those jurors could not be rehabilitated. The trial court then went 

through seven rounds of peremptory challenges before seating a jury of twelve with two 

alternates. From the record, it is not clear how many peremptory challenges were used by 

each party. At the conclusion of jury selection, counsel for Defendant and counsel for the 

State indicated their approval of the jury. 

In general, a criminal defendant must be tried in the county where the offense was 

committed. Tenn. R. Crim. P. 18(a). However, a trial court may order a change of venue 

“when a fair trial is unlikely because of undue excitement against the defendant in the 

county where the offense was committed or for any other cause.” Tenn. R. Crim. P. 21(a). 

When a defendant seeks a change of venue he or she “shall” file a motion “at the earliest 

date after which the cause for the change of venue is alleged to have arisen” pursuant to 

 

2 After the initial technical record was filed in this Court, the record was supplemented to 

include void dire. Despite the State’s argument and supplementation of the record, Defendant 

failed to add to his argument on venue even in his reply brief. 
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Tennessee Rule of Criminal Procedure 21(c). If a defendant fails to “take whatever action 

was reasonably available,” the issue is waived. Tenn. R. App. P. 36(a); see also State v. 

Rick Hanebutt, No. W2005-01301-CCA-R3-CD, 2005 WL 2818240, at *10 (Tenn. Crim. 

App. Oct. 2, 2006), perm. app. denied (Tenn. Feb. 26, 2007). 

The decision whether to grant a defendant’s motion for change of venue rests within 

the sound discretion of the trial court and will not be reversed on appeal absent an abuse of 

discretion. State v. Sexton, 368 S.W.3d 371, 387 (Tenn. 2012); State v. Howell, 868 S.W.2d 

238, 249 (Tenn. 1993). “The mere fact that jurors have been exposed to pretrial publicity 

will not warrant a change of venue,” nor will prejudice “be presumed on the mere showing 

of extensive pretrial publicity.” State v. Rogers, 188 S.W.3d 593, 621 (Tenn. 2006) 

(internal citations omitted). “[I]n order to obtain relief on a claim that the trial court 

improperly denied a motion for a change of venue, a ‘defendant must demonstrate that the 

jurors who actually sat were biased or prejudiced against him.’” Sexton, 368 S.W.3d at 

387 (quoting Rogers, 188 S.W.3d at 621).

The factors which a trial court should consider in deciding whether to grant a change 

of venue include:

the nature, extent, and timing of pretrial publicity; the nature of the publicity 

as fair or inflammatory; the particular content of the publicity; the degree to 

which the publicity complained of has permeated the area from which the 

venire is drawn; the degree to which the publicity circulated outside the area 

from which the venire is drawn; the time elapsed from the release of the 

publicity until the trial; the degree of care exercised in the selection of the 

jury; the ease or difficulty in selecting the jury; the venire persons’ familiarity 

with the publicity and its effect, if any, upon them as shown through their 

answers on voir dire; the defendant’s utilization of his peremptory 

challenges; the defendant’s utilization of challenges for cause; the 

participation by police or by prosecution in the release of the publicity; the 

severity of the offense charged; the absence or presence of threats, 

demonstrations, or other hostility against the defendant; the size of the area 

from which the venire is drawn; affidavits, hearsay, or opinion testimony of 

witnesses; and the nature of the verdict returned by the trial jury.

Sexton, 368 S.W.3d at 387 (citing Rogers, 188 S.W.3d at 621-22 (appendix) (citing State 

v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979))).

Defendant does not address these factors in his brief. Rather, he makes a blanket 

statement that the “abundance of coverage of [Defendant’s] alleged crime” made it a 

situation where a change of venue was appropriate. The record contains several articles 
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and news clipping that reflect the nature, extent, and timing of the pretrial publicity, the 

degree to which the publicity permeated the area from which the venire was drawn, and 

the time elapsed between the release of the publicity and the trial. It appears that most of 

the media coverage was concentrated around the time of the victim’s death and related to 

the Amber Alert and/or custody of the victim’s daughter. The potential jurors completed 

questionnaires regarding the pretrial publicity, and the answers on the questionnaires 

indicated that several jurors were aware of the case prior to trial. 

The record reflects that the trial court carefully and meticulously led the jury 

selection process to ensure that Defendant received a fair trial. See Hoover, 594 S.W.2d at 

746. The record reflects that Defendant exercised some of his peremptory challenges. 

However, Defendant failed to establish that any members of the jury were biased from 

exposure to pretrial publicity or any pretrial knowledge of the case or the witnesses. See 

Sexton, 368 S.W.3d at 388 (concluding that the trial court did not abuse its discretion in 

denying a change of venue motion when there was no indication that the pretrial publicity 

adversely impacted the jury panel); Evans, 838 S.W.2d at 192 (concluding that the 

defendant did not demonstrate prejudice when the jurors who had been exposed to pretrial 

publicity stated that they would render a verdict based on the evidence at trial). 

We also note that Defendant acquiesced to the jury panel at the conclusion of jury 

selection. Further, Defendant failed to renew his motion for change of venue. See Rick 

Hanebutt, 2006 WL 2818240, at *10 (concluding that the defendant waived appellate 

review of the trial court’s denial of his motion for a change of venue because the defendant 

failed to renew his motion during jury selection as instructed by the court’s pretrial order 

initially denying a venue change). Moreover, Defendant does not point to any specific 

instances of prejudice in the record that would have precluded him from receiving a fair 

trial. The trial court did not abuse its discretion in denying the motion to change venue. 

Defendant is not entitled to relief on this issue. 

Prior Bad Acts

Defendant argues on appeal that the trial court committed plain error by “admitting 

explosive but irrelevant allegations” against Defendant including a statement made by 

Defendant about his stepdaughter’s body and his web history about arson. Defendant 

acknowledges that the issues are only reviewable for plain error because he failed to object 

to the testimony about his statement about his stepdaughter and failed to raise the web 

history issue in his motion for new trial but insists that he is entitled to relief because 

“admission is barred by the rules of evidence.” The State disagrees, arguing that there was 

no breach of a clear and unequivocal rule of law.
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Relevant evidence is that “having any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less probable 

than it would be without the evidence.” Tenn. R. Evid. 401. Where the probative value of 

relevant evidence is substantially outweighed by the danger of unfair prejudice, it may be 

inadmissible. Tenn. R. Evid. 403. However, “[e]vidence of other crimes, wrongs, or acts” 

is inadmissible character evidence if offered to show a defendant’s “action in conformity 

with [a] character trait.” Tenn. R. Evid. 404(b); State v. Parton, 694 S.W.2d 299, 654 

(Tenn. 1997). “The terms of this rule establish that character evidence cannot be used to 

prove that a person has a propensity to commit a crime.” State v. McCary, 119 S.W.3d 

226, 243 (Tenn. Crim. App. 2003) (citing State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. 

App. 1994)). Yet, such evidence of other acts may be admissible for other non-propensity 

purposes, such as “to establish motive, intent, identity, absence of mistake, or common 

plan or scheme” or “contextual background.” State v. Little, 402 S.W.3d 202, 210 (Tenn. 

2013). Other act evidence may be admitted for these purposes only after the following 

requirements have been met:

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

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

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

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

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

convincing; and

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

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). However, “[t]rial courts have been encouraged to take a restrictive 

approach of Rule 404(b) because ‘other act’ evidence carries a significant potential for 

unfairly influencing a jury.” State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014) (internal 

quotation and citation omitted).

A trial court’s decision to admit or exclude evidence under Rule 404(b) is reviewed 

under an abuse of discretion standard if the trial court has substantially complied with the 

procedure mandated by the Rule. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). 

Where the trial court has failed to substantially comply with the procedural dictates of Rule 

404(b), the standard of review is de novo. State v. Mallard, 40 S.W.3d 473, 486 n.13

(Tenn. 2001) (citing DuBose, 953 S.W.2d at 652-653)). “A court abuses its discretion 

when it applies an incorrect legal standard or its decision is illogical or unreasonable, is 

based on a clearly erroneous assessment of the evidence, or utilizes reasoning that results 
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in injustice to the complaining party.” Jones, 450 S.W.3d at 892 (internal quotation and 

citation omitted).

Defendant first contests the trial court’s admission of his statement, through the 

testimony of Mr. Morrison, that his stepdaughter had a nice behind. Mr. Morrison was 

explaining what led to the order of protection against Defendant and the victim. Defendant 

did not object to this testimony. Defendant also complains about the introduction of 

“prejudicial” material from his web history including website called, “How can I burn my 

house down and make it look like an accident?” This issue was not in Defendant’s motion 

for new trial. 

In criminal cases, the doctrine of plain error permits appellate courts to consider 

issues that were not raised in the trial court. Tennessee Rule of Appellate Procedure 36(b), 

the plain error doctrine, states in part that “[w]hen necessary to do substantial justice, an 

appellate court may consider an error that has affected the substantial rights of a party at 

any time, even though the error was not raised in the motion for a new trial or assigned as 

error on appeal.” It is well-settled that the discretionary authority to invoke the plain error 

doctrine should be “sparingly exercised,” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 

2007), because “appellate courts do not sit as self-directed boards of legal inquiry and 

research, but essentially as arbitrators of legal questions presented and argued by the parties 

before them.” State v. Northern, 262 S.W.3d 741, 766 (Tenn. 2008) (Holder, J., concurring 

and dissenting) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).

To determine whether a trial error rises to the level of justifying “plain error” review, 

we look to the following five factors:

(a) the record must clearly establish what occurred in the trial court; (b) a 

clear and unequivocal rule of law must have been breached; (c) a substantial 

right of the accused must have been adversely affected; (d) the accused did 

not waive the issue for tactical reasons; and (e) consideration of the error is 

“necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 

626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record 

before this Court will recognize the existence of plain error, and complete consideration of 

all the factors is not necessary when it is clear from the record that at least one of the factors 

cannot be established. State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014). Even if all five 

factors are present, “the plain error must be of such a great magnitude that it probably 

changed the outcome of the trial.” Id. (quoting Adkisson, 899 S.W.2d at 642). 
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Defendant’s brief generally addresses the plain error factors. However, Defendant 

bears the burden of persuading this Court that the trial court committed plain error and that 

the error probably changed the outcome of the trial. See State v. Martin, 505 S.W.3d 492, 

505 (Tenn. 2016). With regard to the statements about Defendant’s stepdaughter, we 

refuse to entertain a plain error analysis because Defendant has failed to show that the issue 

was not waived for tactical reasons. In his brief, Defendant does not explain why no 

objection was lodged. Therefore, Defendant has not carried his burden of persuasion with 

regard to his statements about his stepdaughter. With regard to the introduction of 

Defendant’s web history, we can find no breach of a clear and unequivocal rule of law. In 

our view, this evidence was relevant to Defendant’s state of mind and intent to commit the 

acts for which he was on trial. Because Defendant cannot establish all five factors 

necessary for plain error, he is not entitled to relief on this issue. 

Hearsay Statement

Defendant also complains about the introduction of a hearsay statement during the 

testimony of Elizabeth Guy. Specifically, Defendant argues that Ms. Guy should not have 

been able to testify that Defendant told the victim she would be in a “body bag” if she ever 

left him. Defendant admits that he failed to object to the testimony at trial and, as a result, 

the issue is reviewable only under plain error. The State argues that the statement was not 

hearsay because it was not offered for the truth of the matter asserted, but rather to show 

that the victim feared Defendant. 

As noted above, plain error review permits appellate courts to consider issues that 

were not raised in the trial court. Tenn. R. App. P. 36(b). Also, previously noted is how 

an alleged error rises to a level that justifies plain error review.

At the outset, we note that “rarely will plain error review extend to an evidentiary 

issue.” State v. Jonathan Mitchell Grimes, No. W2014-00786-CCA-R3-CD, 2015 WL 

3929694, at *10 (Tenn. Crim. App. June 26, 2015) (quoting State v. Ricky E. Scoville, No. 

M2006-01684-CCA-R3-CD, 2007 WL 2600540, at *2 (Tenn. Crim. App. Sept. 11, 2007), 

no perm. app. filed), no perm. app. filed.

As noted earlier in this opinion, Tennessee Rule of Evidence 401 provides that 

“‘[r]elevant evidence’ means evidence having any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or less probable 

than it would be without the evidence.” Generally, relevant evidence is admissible. Tenn. 

R. Evid. 402. However, it may be excluded if its probative value is “substantially 

outweighed by the danger of unfair prejudice[.]” Tenn. R. Evid. 403. The term “unfair 

prejudice” has been defined as “[a]n undue tendency to suggest decision on an improper 

basis, commonly, though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 
- 14 -

947, 951 (Tenn. 1978). “The admissibility of evidence under Rule 403 of the Tennessee 

Rules of Evidence is a matter within the trial court’s discretion and will not be reversed on 

appeal absent an abuse of that discretion.” State v. Biggs, 218 S.W.3d 643, 667 (Tenn. 

Crim. App. 2006) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)).

“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). A “statement” is “(1) an oral or written assertion or (2) 

nonverbal conduct of a person if it is intended by the person as an assertion.” Tenn. R. 

Evid. 801(a). Hearsay is not admissible except as allowed by the rules of evidence or other 

applicable law. Tenn. R. Evid. 802. The questions of whether a statement is hearsay or 

fits under one of the exceptions to the hearsay rule are questions of law and subject to de 

novo review by this Court. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).

In our view, the evidence at issue, a statement by the victim to a friend about 

Defendant’s threat was not admitted for the truth of the matter asserted. It was admitted to 

show that the victim was afraid of Defendant and to rebut the defense theory that Defendant 

and the victim were still in a relationship despite their divorce. Because the statement was 

not admitted for the truth of the matter asserted, it was not hearsay. Therefore, the trial 

court did not breach a clear and unequivocal rule of law. Because all five factors for plain 

error cannot be established, Defendant is not entitled to relief on this issue. 

Crime Scene Photographs

Defendant complains that the trial court “erred in admitting gruesome crime scene 

photographs of the [victim’s] body which did not serve to address any disputed issue.” 

Specifically, Defendant complains that the State introduced over two hundred crime scene 

photographs including seven photographs, labeled Exhibits 110, 111, 112, 115, 139, 155, 

and 159. The exhibits depicted the victim’s “bloodied body and face.” Defendant argues 

that because the victim’s manner of death was not disputed and there was ample testimony 

about the crime scene from witnesses, the photographs were not relevant and only served 

to inflame the jury. The State insists that Defendant has waived review of Exhibits 110 

and 111 for failing to challenge them in a pretrial motion and, in any event, the trial court 

did not err in admitting the photographs.

Prior to trial, Defendant filed a motion in limine challenging the introduction of nine 

of the crime scene photographs. At the hearing on the pretrial motions, counsel for 

Defendant noted that of the 249 pictures of the crime scene, 32 of those pictures depicted 

the victim’s body. Of those 32, Defendant objected to the introduction of nine of those 

photographs, initially identified by number as 2474, 2478, 2479, 2512, 2551, 2574, 2582, 

2585, and 2586. It does not appear that Defendant challenged the introduction of numbers 
- 15 -

2469 or 2470. After the hearing, the trial court issued a written order with regard to the 

admissibility of the photographs. The trial court’s order excluded one of the photographs 

as duplicative, determining: 

Each of the photographs in question are clear and accurate. The body is 

generally in the same position as found, although some show a different 

position. All of the [photographs of the scene] contain varying degrees of 

blood coverage. Some depict a large amount of blood on and around the 

alleged victim’s body. But, none show closeup or gruesome wounds. The

case involves 47 separate stab wounds. So, it is difficult to find any photo 

that does not contain bloody images. The position of the body may be 

material to some degree. The primary issue in the case will be who was the 

first aggressor. Therefore, proof regarding this issue will have a higher 

degree of probative value than proof regarding extraneous issues. 

Photo 2474 shows the right side of the alleged victim’s body in totality 

with a prescription card purportedly belonging to the defendant. This image 

is probative of identity and any danger of unfair prejudice does not 

substantially outweigh this probative value. The court finds this photo to be 

admissible.

Photo 2478 depicts a closeup of the victim’s right arm, face, and upper 

torso. The State wishes to use this photo to show that her face was bloody 

and that she had taken off her makeup. This is relevant to time of death. The 

court finds the photo to be probative of time of death and any danger of unfair 

prejudice does not substantially outweigh this probative value. The court 

finds this photo to be admissible.

Photo 2479 is similar to photo 2474. It is a close-up on the alleged 

victim’s upper torso, the State argues that this photo shows the smearing of 

blood on the alleged victim’s skin which is indicative of a struggle. The court 

finds that this photo does not add any additional evidence than presented in 

photo 2474. Therefore, this photo is excluded on the grounds of being 

duplicative. The State may elect to use this photo instead of 2474 if they 

prefer.

Photo 2512 depicts the left side of the alleged victim’s face and her 

upper torso. The State argues that this photo shows the pooling of blood in 

the victim’s ear to establish the final resting position. The court finds the 

photo to be probative of this issue and any danger of unfair prejudice does 

not substantially outweigh this probative value. This photo is admissible.
- 16 -

Photo 2551 depicts a closeup of the alleged victim’s left arm in a down 

position and her face and upper torso. The State argues that this photo 

captures an image of jewelry that appears to have been dropped on her body 

after death. The court finds the photo to be probative of actions by her killer 

after her death and any danger of unfair prejudice does not substantially

outweigh this probative value. This photo is admissible.

Photo 2574 depicts the lower half of the alleged victim’s body with 

blood smeared over her legs. This is the only photograph of the front of the 

alleged victim’s legs that the State is seeking to introduce. The court finds 

this photograph to be probative of the nature of the incident in that the alleged 

victim ended up with many wounds that bled over her body and was smeared 

across all of her body. The court finds this probative value is not

substantially outweighed by the danger of unfair prejudice. This photo is 

admissible.

Photo 2582 depicts the alleged victim’s back and the wounds she 

received in her back. This is probative to the issue of first aggressor. The 

court finds this probative value is not substantially outweighed by the danger 

of unfair prejudice. This photo is admissible.

Photo 2585 depicts the alleged victim’s lower back and wounds she 

received that are not depicted in photo 2582. This is also probative to the 

issue of first aggressor. The court finds this probative value is not 

substantially outweighed by the danger of unfair prejudice. This photo is 

admissible.

Photo 2586 depicts the back of the victim’s head and it appears her 

hairs is soaked in blood. The State argues it also shows the jewelry that was 

tangled in her hair. This is perhaps the most bloody of the images. However, 

it is probative of time of death and first aggressor. Therefore, the court finds 

this probative value is not substantially outweighed by the danger of unfair 

prejudice. This photo is admissible.

At trial, the State introduced a multitude of photographs. Counsel for Defendant 

renewed his objection to the introduction of the challenged photographs. The trial court 

made the following comments in a jury-out hearing after the introduction of the 

photographs:
- 17 -

All right. Since there has been an objection to some of these photos, the 

Court made a point of observing the jury during the presentation of the photos 

to see how their reactions were. They all appeared stoic. The only 

movements I saw is [ ], number two, he had his hand on his face a lot. I think 

he’s actually been like that through much of the trial, though. So I didn’t 

really think that was any reaction to the pictures. [Female Juror P] is the only 

one that I saw with any reaction. A few times when body pictures were 

shown, she would put her hand up to her mouth or her face. It appeared to 

be sort of in a subconscious or involuntary reaction during those. She didn’t 

appear upset. Nobody was crying or nobody looked away. That’s the only 

thing that I saw, was any if anybody else wants to put anything else on the

record about the presentation of photos. All movements by any of them. 

That was [Female Juror P]. She seemed okay. She was actually yawning at 

the end of it but that’s all I could observe. I don’t know.

In Banks, our supreme court provided the trial courts with guidance for determining 

the admissibility of relevant photographic evidence. The trial court should consider: the 

accuracy and clarity of the picture and its value as evidence; whether the picture depicts 

the body as it was found; the adequacy of testimonial evidence in relating the facts to the 

jury; and the need for the evidence to establish a prima facie case of guilt or to rebut the 

defendant’s contentions. Id. at 951. The admissibility of relevant photographs of victims 

and the crime scene is within the sound discretion of the trial court, and the court’s ruling 

on admissibility will not be disturbed on appeal absent a showing of an abuse of that 

discretion. Carruthers, 35 S.W.3d at 576-77; State v. Van Tran, 864 S.W.2d 465, 477 

(Tenn. 1993); Banks, 564 S.W.2d at 949. As our supreme court stated in Carruthers, the 

modern trend is to vest more discretion in the trial court’s rulings on admissibility. 

Carruthers, 35 S.W.3d at 577 (citing Banks, 564 S.W.2d at 949).

On appeal, Defendant challenges the introduction of Exhibits 110 (thumbnail 

number 2469), 111 (thumbnail number 2470), 112 (thumbnail number 2474), 115 

(thumbnail number 2478), 139 (thumbnail number 2512), 155 (thumbnail number 2551), 

and 159 (thumbnail number 2586). Defendant did not challenge the introduction of 

Exhibits 110 or 111 in the pretrial motion or in the motion for new trial. Moreover, in the 

motion for new trial, Defendant did not challenge the admissibility of specific photographs, 

but rather introduction of crime scene and autopsy photographs of the victim in general.

The State argues that Defendant waived any issue with regard to the admission of 

exhibits 110 and 111 for failure to challenge their admission in the motion in limine and 

the motion for new trial. However, counsel for Defendant noted their objection to the 

admissibility of the photographs at trial and in the motion for new trial in a blanket 
- 18 -

objection without specifying certain photographs. In our view, the issue was preserved for 

appeal. 

Having reviewed the trial court’s analysis regarding each individual photo, we 

conclude that the trial court did not abuse its discretion in admitting the photos into 

evidence. The photos at issue include various photographs of the victim as she was found 

in her apartment. The trial court found that the photos showed evidence of a struggle, the 

amount of blood involved, the number of the injuries, a medical card, and the general state 

of the scene. In its detailed pretrial rulings, the trial court excluded one photograph on the 

basis that it was duplicative. The trial court also observed the demeanor of the jury as they 

viewed the photographs.

Our review of the record shows that the trial court methodically considered the 

probative value and prejudicial effect of each crime scene photo. The trial court ruled the 

photographs admissible because it found that they were relevant to the issues on trial, 

notwithstanding their gruesome and horrifying character. The victim was stabbed 47 times. 

The photographs depicted both the nature and extent of her injuries in addition to the signs 

of a struggle prior to the victim’s death. The trial court did not abuse its discretion. We 

conclude that Defendant is not entitled to relief on this issue.

Sufficiency

Defendant challenges the sufficiency of the evidence with respect to both of his 

convictions. Specifically, with respect to the conviction for first degree murder, Defendant 

alleges that there was no proof of premeditation. To the contrary, Defendant argues that 

this was a “crime of anger and rage” and that he “acted out of passion.” Additionally, 

Defendant insists that there was no proof to establish that Defendant used violence to take 

the victim’s ATM card. Defendant thus argues the evidence was insufficient to support 

the conviction for especially aggravated robbery. 

Well-settled principles guide this Court’s review when a defendant challenges the 

sufficiency of the evidence. A guilty verdict removes the presumption of innocence and 

replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). 

The burden is then shifted to the defendant on appeal to demonstrate why the evidence is 

insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). 

The relevant question the reviewing court must answer is whether any rational trier of fact 

could have found the accused guilty of every element of the offense beyond a reasonable 

doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). On 

appeal, “the State is entitled to the strongest legitimate view of the evidence and to all 

reasonable and legitimate inferences that may be drawn therefrom.” State v. Elkins, 102 

S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from re-weighing or 
- 19 -

reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 

S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. 

Crim. App. 1990). This Court considers all of the evidence presented at trial, even if 

Defendant challenges the admissibility of some of the evidence on appeal. See State v. 

Thomas Bolton, No. W2012-02000-CCA-R3-CD, 2014 WL 12653829, at *10 (Tenn. 

Crim. App. Jan. 31, 2014) (citing State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 

1981)), no perm. app. filed. Moreover, we may not substitute our own “inferences for 

those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 

779. Further, questions concerning the credibility of the witnesses and the weight and 

value to be given to evidence, as well as all factual issues raised by such evidence, are 

resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 

561 (Tenn. 1990). “The standard of review ‘is the same whether the conviction is based

upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 

2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

Here, Defendant was charged with first degree murder. In relevant part, first degree 

murder is “[a] premeditated and intentional killing of another.” T.C.A. §39-13202(a)(1). 

Tennessee Code Annotated §39-13-202(d) defines premeditation as:

An act done after the exercise of reflection and judgment. 

“Premeditation” means that the intent to kill must have been formed prior to 

the act itself. It is not necessary that the purpose to kill preexist in the mind 

of the accused for any definite period of time. The mental state of the accused 

at the time the accused allegedly decided to kill must be carefully considered 

in order to determine whether the accused was sufficiently free from 

excitement and passion as to be capable of premeditation. 

The State must establish the element of premeditation beyond a reasonable doubt. 

See State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 

1999). Premeditation may be proved by circumstantial evidence. See, e.g., State v. Brown, 

836 S.W.2d 530, 541-42 (Tenn. 1992). The existence of premeditation is a question of fact 

for the jury and may be inferred from the circumstances surrounding the killing. State v. 

Young, 196 S.W.3d 85, 108 (Tenn. 2006); State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 

2000). Such circumstances include, but are not limited to, the use of a deadly weapon upon 

an unarmed victim, the particular cruelty of the killing, the infliction of multiple wounds, 

threats or declarations of an intent to kill, a lack of provocation by the victim, failure to aid 

or assist the victim, the procurement of a weapon, preparations before the killing for 

concealment of the crime, destruction and secretion of evidence of the killing, and calmness 

immediately after the killing. State v. Kiser, 284 S.W.3d 227, 268 (Tenn. 2009); State v. 

Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 
- 20 -

2003); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Larkin, 443 S.W.3d 751, 

815-16 (Tenn. Crim. App. 2013). 

Especially aggravated robbery is robbery, as defined in Code section 39-13-401, 

which is “[a]ccomplished with a deadly weapon” and “[w]here the victim suffers serious 

bodily injury.” T.C.A. § 39-13-403(a) (2014). Robbery is defined as “the intentional or 

knowing theft of property from the person of another by violence or putting the person in 

fear. Id. § 39-13-401(a) (2014). “A person commits theft of property if, with intent to 

deprive the owner of property, the person knowingly obtains or exercises control over the 

property without the owner’s effective consent.” Id. § 39-14-103(a). “A robbery can 

involve the taking of property from the physical body of a person, in which a person has 

actual possession of the property, or from a person’s immediate presence or the general 

area in which the victim is located, in which the person has constructive possession of the 

property.” State v. Tolbert, 507 S.W.3d 197, 217 (Tenn. Crim. App. 2016) (citations 

omitted); see State v. Edmondson, 231 S.W.3d 925, 928 (Tenn. 2007) (“The words ‘from 

the person of another’ indicate that the property is in close physical proximity to the victim 

when the property is taken.”).

In the light most favorable to the State, the evidence shows that Defendant used 

some sort of deadly weapon to stab the victim 47 times and then used her debit card several 

times over the next few days. Nothing at the scene indicated that the victim had any type 

of weapon during the attack. To the contrary, the victim had defensive wounds on her left 

hand and forearm in addition to her stab wounds. Defendant had scratches on his face and 

neck at the time of his arrest. The victim had Defendant’s DNA under her fingernails, 

indicating that she likely scratched Defendant during the attack in an attempt to defend 

herself. The autopsy concluded that the victim died as a result of multiple stab wounds and 

that there was no evidence of attempted resuscitation. There was testimony about the 

volatile nature of the relationship between Defendant and the victim. While they were 

divorced, Defendant continued to contact the victim via text message about matters other 

than the shared custody of their daughter. There was even evidence that Defendant 

threatened to break the victim’s neck if she allowed another man around their daughter. 

Defendant’s theory was that he acted “out of a passion that precluded premeditation.” 

However, the jury heard the evidence and the definition of premeditation, and determined 

that Defendant’s actions were premeditated. 

With respect to the conviction for especially aggravated robbery, Defendant argues 

that there was no proof he used violence to take the victim’s debit card. To the contrary, 

the proof shows that the victim used the debit card at Walgreens at 6:19 p.m. on the night 

she was murdered. After her death, Defendant took the victim’s car and daughter on the 

run. Defendant used the victim’s debit card several times over the course of the next two 

days to take $500 from her account. It was within the province of the jury to determine 
- 21 -

that Defendant took the debit card either from the victim’s person or her apartment and that 

the victim suffered serious bodily injury. The evidence was sufficient to support 

Defendant’s convictions.

Improper Prosecutorial Argument

Defendant argues that the State made improper closing argument that relied on 

“invective, conjecture, misstatements, references outside the record, and appeals to 

emotion.” Specifically, Defendant complains about the prosecutor: (1) calling Defendant 

a “leech” and “coward”; (2) making irrelevant accusations about Defendant’s relationship 

with his other daughters; (3) speculating on how the victim’s phone was broken, where 

Defendant was heading, and actions Defendant took after the victim was killed; (4) making 

arguments outside the record about the “classic pattern” of domestic violence; (5) 

denigrating the defense; and (6) pleading to the jury for “vengeance.” Defendant 

acknowledges that he did not contemporaneously object to each instance of alleged 

improper argument at trial and points to each allegation that was raised in the motion for 

new trial. The State points out that Defendant failed to object to many of the statements 

about which he complains on appeal and failed to include many of the statements about 

which he now complains in his motion for new trial. Therefore, the State argues that 

Defendant has waived all but one challenge to the closing argument and that Defendant is 

not entitled to relief on that one issue. 

Defendant argues that “several” of his claims were preserved by contemporaneous 

objection and/or inclusion in the motion for new trial. Specifically, Defendant 

acknowledges, and the record confirms, that he failed to object when the prosecutor

referred to Defendant as a “leech” and a “coward” at trial, but included a complaint about 

being referred to as a “coward” in his motion for new trial. Defendant objected to a 

statement about his “demeanor” in the back of the police cruiser as “chuckling, laughing” 

but failed to raise this issue in his motion for new trial. With regard to speculation, 

Defendant challenges statements by the prosecutor about what may have happened to the 

victim’s phone, coffee, ironing board, and/or Defendant’s plan to go to Canada on appeal. 

However, there were no objections made at trial with regard to these statements and only 

the statements related to the iPhone and Defendant’s alleged flight to Canada were included 

in the motion for new trial. With regard to arguments made by the prosecutor that were 

beyond the scope of the record, Defendant complains about the prosecutor’s reference to 

“classic” domestic violence patterns and the lack of wounds on Defendant’s hands. Neither 

of these were objected to at trial nor included in the motion for new trial. Defendant also 

challenges the prosecutor’s “dramatic demonstration” during which the prosecutor counted 

from one to forty-seven while pounding on counsel table to characterize how long it took 

Defendant to stab the victim. While there was no objection to this argument at trial, it was 

included in the motion for new trial. Defendant also failed to object to what he perceived 
- 22 -

as “[d]enigration of defense” when the prosecutor insinuated that Defendant should get a 

“gold star” for the brutality of the killing by giving Defendant a “pass on premeditation” 

and consider the lack of defensive wounds as signs that the killing did not happen in a “wild 

rage.” Defendant also failed to object to the prosecutor’s request to show Defendant “the 

same amount [of mercy] that he showed” to the victim. It appears that the only complaint 

to the prosecutor’s argument that was both objected to at trial and raised in the motion for 

new trial related to remarks made by the State about the absence of proof of Defendant’s

relationship with his other two daughters. 

Our supreme court has stated “that it is incumbent upon defense counsel to object 

contemporaneously whenever it deems the prosecution to be making improper argument.” 

State v. Jordan, 325 S.W.3d 1, 57 (Tenn. 2010). A timely objection gives the trial court 

the opportunity to assess the State’s argument and to take appropriate curative action. Id. 

at 57-58. Failure to contemporaneously object constitutes a waiver of the issue on appeal. 

Id.

Defendant argues that despite his failure to object to all the instances of alleged 

prosecutorial misconduct, his inclusion of those issues in a motion for new trial is sufficient 

to preserve the issues for plenary review. Defendant cites to State v. Hawkins, 519 SW.3d 

1, 48 (Tenn. 2017), and State v. Zackary James Earl Ponder, No. M2018-00998-CCA-R3-

CD, 2019 WL 3944008, at *11-12 (Tenn. Crim. App. Aug. 21, 2019), perm. app. denied

(Tenn. Dec. 5, 2019), to support his argument that plenary review is appropriate. However, 

both Hawkins and Zackary James Earl Ponder are distinguishable because they generally 

involved the prosecutor’s use of information in closing argument that was objected to 

pretrial, which was determined to have sufficiently preserved the issue for appellate review. 

Moreover, this Court recently reiterated the requirement of a contemporaneous objection 

during closing argument in order to preserve an issue for plenary review. State v. Edward 

Walsh, No. M2019-00989-CCA-R3-CD, 2020 WL 5117960, at *11 (Tenn. Crim. App. 

Aug. 31, 2020), perm. app. granted (Tenn. Jan. 15, 2021), appeal dismissed (Apr. 13, 

2021). Therefore, with the exception of one issue, Defendant’s claims may only be 

reviewed for plain error. 

As to the remainder of Defendant’s complaints about the prosecutor’s closing 

argument, we will review them under plain error only. When an issue is waived, we are 

limited to plain error review. Id. As stated previously, all five factors must be established 

by the record before this Court will recognize the existence of plain error, and complete 

consideration of all the factors is not necessary when it is clear from the record that at least 

one of the factors cannot be established. Bishop, 431 S.W.3d at 44. Even if all five factors 

are present, “the plain error must be of such a great magnitude that it probably changed the 

outcome of the trial.” Id. (quoting Adkisson, 899 S.W.2d at 642). 
- 23 -

Defendant bears the burden of persuading this Court that the trial court committed 

plain error and that the error probably changed the outcome of the trial. See State v. Martin, 

505 S.W.3d 492, 505 (Tenn. 2016). Defendant has failed to show that the issues were not 

waived for tactical reasons. In his brief, Defendant does not explain why no objection was 

lodged. This Court can contemplate multiple tactical reasons that would explain why 

defense counsel may have consciously chosen not to object to the prosecutor’s closing 

argument, and none of those reasons were dispelled in Defendant’s brief. Therefore, 

Defendant has not carried his burden of persuasion, and he is not entitled to relief on the 

issues that were not properly preserved for appeal.

The sole remaining challenge to allegedly improper argument that was both objected 

to and raised in a motion for new trial was Defendant’s complaint about the prosecutor’s 

remarks about Defendant’s other two daughters. Consequently, Defendant’s solitary issue 

with regard to prosecutorial misconduct that is preserved for appeal relates to the following 

comments made by the State during closing argument:

[The victim’s daughter is] the only thing he has. He’s getting weaker 

‘cause she’s the only thing he has. He’s got a tattoo on his back with the 

name Hannah, and he’s got another daughter Campbell, and does he ever 

express to [their mother’s] “Oh, I need to spend time with Hannah. I really 

miss her - - miss her. I want to hug Hannah. Can I come over and hug - - no 

he doesn’t.

After counsel for Defendant objected and the trial court overruled the objection, the 

prosecutor immediately referred to the overwhelming number of text messages sent by 

Defendant and the lack of references to his other two daughters. On appeal, Defendant 

argues that these statements were irrelevant and not supported by the record. The State 

argues that any error by the argument was minimized by the overwhelming proof of 

Defendant’s guilt.

“Closing argument is a valuable privilege that should not be unduly restricted.”

State v. Stephenson, 195 S.W.3d 574, 603 (Tenn. 2006) (citing State v. Bane, 57 S.W.3d 

411, 425 (Tenn. 2001)). The trial court has substantial discretion in controlling the course 

of arguments and will not be reversed unless there is an abuse of that discretion. Id. In 

addition, prosecutorial misconduct does not constitute reversible error absent a showing 

that it has affected the outcome of the trial to the prejudice of the defendant. Id. (citing 

Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)). However, an attorney’s comments 

during closing argument “‘must be temperate, must be predicated on evidence introduced 

during the trial of the case, and must be pertinent to the issues being tried.’” State v. Gann, 

251 S.W.3d 446, 459 (Tenn. Crim. App. 2007) (quoting State v. Sutton, 562 S.W.2d 820, 

823 (Tenn. 1978)). In order to be entitled to relief on appeal, the defendant must “show 
- 24 -

that the argument of the prosecutor was so inflammatory or the conduct so improper that it 

affected the verdict to his detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. 

App. 1996).

Although not exhaustive, Tennessee courts have recognized five general areas of 

potential improper prosecutorial argument: (1) intentionally misstating the evidence or 

misleading the jury as to the inferences it may draw; (2) expressing personal beliefs or 

opinions as to the truth or falsity of any testimony or the guilt of the defendant; (3) 

inflaming or attempting to inflame the passions or prejudices of the jury; (4) injecting 

issues broader than the guilt or innocence of the accused; and (5) arguing or referring to 

facts outside the record unless the facts are matters of common knowledge. See State v. 

Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).

This Court must consider the following factors when determining whether the 

argument of the prosecutor was so inflammatory or improper to negatively affect the 

verdict:

(1) the conduct complained of viewed in the light of the facts and 

circumstances of the case; (2) the curative measures undertaken by the court 

and the prosecution; (3) the intent of the prosecutor in making the improper 

arguments; (4) the cumulative effect of the improper conduct and any other

errors in the record; and (5) the relative strength and weakness of the case.

State v. Chalmers, 28 S.W.3d 913, 917 (Tenn. 2000) (citations omitted). In our view, it is 

unlikely that prosecutor’s brief comments about Defendant’s other daughters adversely 

affected the verdict. Such statements, while straight out of left field, did not diminish the 

unchallenged fact that Defendant stabbed the victim 47. times. As such, Defendant is not 

entitled to relief on this issue.

Jury Instructions

Defendant argues that the trial court erred by refusing to instruct the jury on the 

“legally correct” definition of passion. Specifically, Defendant argues that he requested 

the trial court to instruct the jury that passion meant “any of the human emotions known as 

anger, rage, sudden resentment or terror which renders the mind incapable of cool 

reflection.” When the trial court denied the request, Defendant argues that the jury was 

unable to consider Defendant’s emotions as a “viable defense to first-degree murder.” 

Defendant cites State v. Bullington, 532 S.W.2d 556, 559-60 (Tenn. 1976), to support his 

argument. The State argues that the issue is waived for failing to include both the written 

charge and the transcript of the charge. 
- 25 -

Defendant filed a written request for a jury instruction on the definition of passion. 

According to the record, the trial court refused to give the instruction. Of course, “a 

defendant has a right to a correct and complete charge of the law,” State v. Farner, 66 

S.W.3d 188, 204 (Tenn. 2001), and the trial court has the duty to give “a complete charge 

of the law applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 

(Tenn. Crim. App. 1998). Tennessee law, however, does not mandate that any particular 

jury instructions be given, so long as the trial court gives a complete charge on the 

applicable law. See State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). A charge is 

prejudicially erroneous “if it fails to fairly submit the legal issues or if it misleads the jury 

as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State 

v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 

531 (Tenn. 1977)). Whether the trial court properly instructed the jury is a mixed question 

of law and fact. State v. Thorpe, 463 S.W.3d 851, 859 (Tenn. 2015); State v. Rush, 50 

S.W.3d 424, 427 (Tenn. 2001). Accordingly, the standard of review is de novo with no 

presumption of correctness. 

Defendant properly submitted a written request for a jury instruction on passion 

pursuant to Rule 30 of the Tennessee Rules of Criminal Procedure. However, the record 

on appeal contains only the written jury instructions. While the written jury instructions 

do not contain an instruction on passion, Defendant failed to submit a transcript of the jury 

instructions as part of the record on appeal. Rule 24(b) of the Tennessee Rules of Appellate 

Procedure provides that “the appellant shall have prepared a transcript of such part of the 

evidence or proceedings as is necessary to convey a fair, accurate and complete account of 

what transpired with respect to those issues that are the bases of appeal.” This Court has 

previously cautioned that

[f]ailure to include a transcript normally waives review of appellate issues 

pertaining to jury instructions because without a complete record, it is 

impossible for this court to discern whether the written jury instruction 

conforms to the instructions as read to the jury and thus, whether error 

actually occurred. See Tenn. R. App. P. 24(b); State v. Jones, 623 S.W.2d 

129 (Tenn. Crim. App. 1981).

State v. Dedonnas R. Thomas, No. W2000-01465-CCA-R3-CD, 2002 WL 1558687, at *7 

(Tenn. Crim. App. Jan. 30, 2002), no perm. app. filed; see also State v. Andrew Douglas 

Rush, No. M2009-02253-CCA-R3-CD, 2010 WL 4868086, at *7 (Tenn. Crim. App. Nov. 

29, 2010), perm. appeal denied, (Tenn. Apr. 13, 2011); State v. Walter Wilson, No. W2001-

01463-CCA-R3-CD, 2002 WL 31259461, at *5 n.2 (Tenn. Crim. App. Sept. 4, 2002), 

perm. app. denied (Tenn. Jan. 27, 2003); State v. Thomas Mitchell, No. W1998-00509-

CCA-R3-CD, 1999 WL 1531758, at *4 n.2 (Tenn. Crim. App Dec. 20, 1999), perm. app. 

denied (Tenn. June 12, 2000). Absent plain error, Defendant is not entitled to relief. Tenn. 
- 26 -

R. App. P. 36. Defendant cites State v. Bullington, 532 S.W.2d 556, 559-60 (Tenn. 1976), 

to support his argument that the definition of passion was required by the trial court but 

notes that the Bullington definition of passion was later declared unnecessary by State v. 

Mann, 959 S.W.2d 503, 522 (Tenn. 1997). Defendant has pointed to no unequivocal rule 

of law that has been breached; there is no plain error. 

Cumulative Error

Defendant’s last argument is that cumulative error by the trial court necessitates a 

new trial. Because we have found no error in the trial court’s judgments, Defendant is not 

entitled to relief on this issue. See State v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010). 

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed. 

____________________________________

TIMOTHY L. EASTER, JUDGE