IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 14, 2015

STATE OF TENNESSEE v. MICHAEL SMITH

Appeal from the Criminal Court for Shelby County

No. 09-04071 James M. Lammey, Jr., Judge

No. W2014-00900-CCA-R3-CD - Filed October 21, 2015

The defendant, Michael Smith, was convicted of aggravated burglary and sentenced as a 

Range II, multiple offender to ten years, the sentence to be served consecutively to a 

sentence previously imposed in another matter. On appeal, he argues that the evidence is 

insufficient to support his conviction and that the trial court erred by the following 

rulings: (1) instructing as to flight; (2) concluding that the defendant could be impeached 

with prior convictions for rape and attempted rape; (3) engaging in an ex parte 

communication with the jury; (4) refusing to grant a mistrial; (5) concluding the 

defendant could receive a fair trial even though the State had lost or destroyed recordings 

of telephone calls and jail visits; and (6) not allowing the defendant to present certain 

proof to impeach one of the State‟s witnesses. Following our review, we conclude that 

the issues raised on appeal are without merit and affirm the judgment of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Lance R. Chism, Memphis, Tennessee (on appeal); Michael Smith, Pro Se (at trial), for 

the appellant, Michael Smith.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; 

Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

The relationship between the defendant and his former girlfriend, Kimberly 

Chrestman, who testified at both trials of this matter, has a history in the court system. In 

State v. Michael Smith, No. W2011-01630-CCA-R3-CD, 2013 WL 3702369, at *1 
2

(Tenn. Crim. App. July 12, 2013), the first trial regarding the events, the defendant was 

convicted of aggravated burglary, a Class C felony, and assault, a Class A misdemeanor, 

and sentenced to an effective term of seven years. Next, in State v. Michael Smith, No. 

W2013-01190-CCA-R3-CD, 2014 WL 3954062, at *1 (Tenn. Crim. App. Aug. 13, 

2014), perm. app. granted (Tenn. Dec. 18, 2014), he was convicted of aggravated assault 

of Ms. Chrestman for violating an order of protection and evading arrest and sentenced to 

ten years and eleven months, twenty-nine days, respectively. Finding that the defendant 

was a “dangerous offender,” the trial court ordered that the sentences be served 

consecutively. Additionally, in Michael W. Smith v. Kimberly Chrestman, No. W2013-

02478-COA-R3-CV, 2014 WL 1510420, at *1 (Tenn. Ct. App. Apr. 16, 2014), acting pro 

se, the defendant sued Ms. Chrestman for, allegedly, exposing him to Hepatitis C and 

stealing items from him. The trial court dismissed the complaint for lack of prosecution. 

We now proceed with our review of this matter.

FACTS

This appeal is from the second time the defendant has been convicted of 

aggravated burglary, based upon the same set of facts. His first conviction was reversed 

by this court and remanded for a new trial after this court concluded that the trial court 

had erred by constructively amending the indictment in its charge to the jury. Michael 

Smith, 2013 WL 3702369, at *1. At the second trial, the defendant proceeded pro se and, 

again, was convicted. 

Matthew Ronning testified that, at the time of the incident resulting in the 

indictment in this matter, he was living in a two-bedroom apartment, and a female 

acquaintance, Marris Orange, lived in the second bedroom. On February 9, 2009, Ms. 

Chrestman came to his apartment and said she wanted to stay “until it was light out and 

she could leave again.” Ms. Orange also was present. In the early morning hours of the 

following day, Ms. Chrestman said she wanted to go to her mother‟s house in 

Mississippi, and Mr. Ronning agreed to drive her there. As they left the apartment 

together and went to his car, Mr. Ronning heard a scream and felt his “knee give out.” 

He looked and saw the defendant as he kicked Mr. Ronning in the side of his knee, where 

two months earlier, he had knee replacement surgery. The defendant was aware of the 

knee replacement surgery. He then stabbed Mr. Ronning in the back with a screwdriver 

and tried to do so again, as Mr. Ronning held onto the defendant‟s hand grasping the 

screwdriver. He rolled under the car and tried to use his cell phone, which the defendant 

kicked. Mr. Ronning was able to call 911 and report that he was being attacked. Seeing 

that the defendant no longer was by the car, Mr. Ronning noticed his car keys, including 

the key to his apartment, were missing, and he then approached other apartments seeking 

help. He said he did not give the defendant permission to enter his apartment.
3

Gregory Hilliard testified that he was a detective in the Organized Crime Unit 

Project Safe Neighborhoods, of the Memphis Police Department. On February 10, 2009, 

he responded to an assault and burglary call at a location near Madison Avenue and 

Evergreen Street, near Zinnie‟s Restaurant. At the scene, they found Mr. Ronning

bleeding from his head. Inside the apartment were two women, and officers saw that a 

bedroom door had been kicked in, and a bathroom window broken. While officers were 

at the scene, an ambulance arrived and transported the victim to the hospital. 

Officer Michael Garner testified that he had been employed by the Memphis 

Police Department for nine years, and in February 2009 he was a detective assigned to 

the Investigative Support Unit. He said that on February 17 of that year, he and other 

officers went to an apartment at 1050 North Parkway in Memphis to transport the 

defendant to the Robbery Bureau. The defendant‟s father was in the apartment, and 

Officer Garner noticed the access to the attic was open. Officer Garner drew his pistol, 

looked into the attic, and saw the entrance to the next-door apartment was open. He then 

looked down into the second apartment, heard a door close, and dropped down into that 

apartment. The defendant was there and was handcuffed by another officer. 

Kimberly Chrestman testified that the defendant was her former boyfriend. She 

said that, on February 9, 2009, after she and the defendant had argued at their apartment, 

she left to go to the apartment of Matthew Ronning. She saw the defendant “pop[] up in 

the window” of Mr. Ronning‟s apartment. The following morning, she was watching as 

Mr. Ronning, whom she called “Sonny,” walked to his car, and he was attacked from 

behind by the defendant. She described the attack:

I know that Sonny tried to get away from him by crawling underneath the 

car even. At one point [the defendant] got in the car and me and Mimi 

[Marris Orange] were standing back. And we see him doing this and of 

course he had something silver and shiny in his hand. We didn‟t know 

what it was. We thought he was killing him right there. We thought he 

was dead. 

She saw Mr. Ronning screaming and banging on windows for help, as the 

defendant continued “beating on him.” Soon, the defendant entered into the apartment, 

kicked open the door of the room she was in, and jerked her out by the hair. He then 

began beating and cursing her but ran away at the same time that Ms. Chrestman heard 

sirens. 

The defendant presented one witness in his defense. Charles Beasley testified that 

he was acquainted with Matthew Ronning, Kimberly Chrestman, and the defendant. On 

February 9, 2009, he and “Shannon” went to Mr. Ronning‟s residence “to mak[e] sure 
4

that [the defendant] wasn‟t around.” Mr. Beasley did not see the defendant there. He 

said that Mr. Ronning, Ms. Chrestman, and Ms. Orange were smoking crack in the 

apartment. Following this testimony, the defendant rested his case.

ANALYSIS

We will review the issues raised by the defendant on appeal.

I. Sufficiency of the Evidence

The defendant argues that the evidence at trial is insufficient to sustain his 

conviction for aggravated burglary, asserting, specifically, that “no reasonable juror could 

have accredited the testimony given by Mr. Ronning and Ms. Chrestman since neither 

was a believable witness.” 

When an appellant challenges the sufficiency of the convicting evidence, the 

standard for review by an appellate court is “whether, after viewing the evidence in the 

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

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

U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest 

legitimate view of the evidence and all reasonable or legitimate inferences which may be 

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions 

concerning the credibility of witnesses and the weight and value to be afforded the 

evidence, as well as all factual issues raised by the evidence, are resolved by the trier of 

fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or 

reevaluate the evidence, nor will this court substitute its inferences drawn from the 

circumstantial evidence for those inferences drawn by the jury. Id. Because a jury 

conviction removes the presumption of innocence with which a defendant is initially 

cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the 

burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle, 

639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a 

combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140 

(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and 

„[t]he inferences to be drawn from such evidence, and the extent to which the 

circumstances are consistent with guilt and inconsistent with innocence, are questions 

primarily for the jury.‟” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting State 

v. Marable, 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review 

„is the same whether the conviction is based upon direct or circumstantial evidence.‟”
5

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 

S.W.3d 265, 275 (Tenn. 2009)).

Aggravated burglary is defined as “burglary of a habitation.” Tenn. Code Ann. § 

39-14-403(a). As instructed to the jury, “[a] person commits burglary who, without the 

effective consent of the property owner . . . [e]nters a building and commits . . . a . . . 

assault.” Tenn. Code Ann. § 39-14-402(a)(3). “Habitation” means “any structure, 

including buildings, module units, mobile homes, trailers, and tents, which is designed or 

adapted for the overnight accommodation of persons.” Tenn. Code Ann. § 39-14-

401(1)(A). “„Habitation‟ also includes garages and other outbuildings that are „separately 

secured and occupied portions‟ of a habitation.” Tenn. Code Ann. § 39-14-403, 

Sentencing Comm‟n Cmts.

On appeal, the defendant points out a number of alleged discrepancies in the 

testimony of the State‟s witnesses at this trial, as well as their testimony during the first 

trial of this matter. As we have set out, it is for the jury to resolve any inconsistencies in 

the testimony of witnesses; and, we have no basis to reweigh or reevaluate the evidence 

in this matter. As for the defendant‟s assault upon Ms. Chrestman, the State‟s proof 

showed that, without permission, he entered the apartment through a locked door, broke 

through a bedroom door, grabbed Ms. Chrestman by the hair, and beat her as he pulled 

her toward the door. From this evidence, we conclude that a reasonable jury could have 

determined that the defendant illegally entered the apartment with the intent of assaulting 

Ms. Chrestman.

This assignment is without merit.

II. Jury Instruction Regarding Flight

The defendant argues that the evidence did not warrant the trial court‟s instructing 

the jury as to flight. The State responds that the defendant‟s flight was circumstantial 

evidence of his guilt.

Accordingly, trial courts have 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) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). An 

instruction will be considered prejudicially erroneous only if it fails to submit the legal 

issues fairly or misleads the jury as to the applicable law. State v. Faulkner, 154 S.W.3d 

48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)).

A flight instruction is warranted when “proof of „both a leaving the scene of the 

difficulty and a subsequent hiding out, evasion, or concealment in the community, or a 
6

leaving of the community for parts unknown‟” has been presented at trial. State v. Burns, 

979 S.W.2d 276, 289-90 (Tenn. 1998) (quoting State v. Payton, 782 S.W.2d 490, 498 

(Tenn. Crim. App. 1989)). The State can satisfy the subsequent hiding out, evasion, or 

concealment requirement by introducing evidence from which a jury might infer such 

action. State v. Terrance Wilks, No. W1999-00279-CCA-R3-CD, 1999 WL 1097832, at 

*4 (Tenn. Crim. App. Nov. 22, 1999) (citing Payton, 782 S.W.2d at 490; Rogers v. State, 

2 Tenn. Crim. App. 491, 455 S.W.2d 182, 186-87 (Tenn. Crim. App. 1970)). “Any 

contradictory evidence that serves to rebut the [S]tate‟s proof merely raises a question for 

the jury to resolve.” Id. (citing Hall v. State, 584 S.W.2d 819, 821 (Tenn. Crim. App.

1979)).

The trial court instructed the jury as follows regarding flight:

The flight of a person accused of a crime is a circumstance which, 

when considered with all the facts of the case, may justify an inference of 

guilt. Flight is the voluntary withdrawal of oneself for the purpose of 

evading arrest or prosecution for the crime charged. Whether the evidence 

presented proves beyond a reasonable doubt that the defendant fled is a 

question for your determination.

The law makes no precise distinction as to the manner or method of 

flight; it may be open, or it may be a hurried or concealed departure, or it 

may be a concealment within the jurisdiction. However, it takes both a 

leaving the scene of the difficulty and a subsequent hiding out, evasion, or 

concealment in the community, or a leaving of the community for parts 

unknown, to constitute flight.

If flight is proved, the fact of flight alone does not allow you to find 

that the defendant is guilty of the crime alleged. However, since flight by a 

defendant may be caused by a consciousness of guilt, you may consider the 

fact of flight, if flight is so proven, together with all of the other evidence 

when you decide the guilt or innocence of the defendant. On the other 

hand, an entirely innocent person may take flight and such flight may be 

explained by proof offered, or by the facts and circumstances of the case.

Whether there was flight by the defendant, the reasons for it, and the 

weight to be given to it, are questions for you to determine. 

According to the State‟s evidence, the defendant twice fled – first, he stopped 

beating Ms. Chrestman and fled the apartment when police sirens could be heard and, 

second, several days later, when an attempt was made to arrest him. On the second 
7

occasion, officers found in the defendant‟s father‟s apartment a ladder into an open attic 

door and a corresponding open attic door in the next-door apartment, where the defendant 

was found. We conclude that a reasonable jury could have determined that the defendant 

had twice fled.

In any event, even if it was error for the trial court to give the flight instruction, 

such error was harmless beyond a reasonable doubt. As noted by our supreme court in 

State v. Smith, 893 S.W.2d 908 (Tenn. 1994):

Even if an instruction on flight should not have been given, any error 

is not reversible. The Court instructed the jury that whether the Defendant 

fled was a question solely for their decision, that they need not infer flight, 

and that flight alone was insufficient to prove guilt. This, coupled with the 

overwhelming proof of Defendant‟s guilt, renders any error as to the flight 

instruction harmless. 

Id. at 918.

Just as in Smith, the trial court instructed the jury that whether the defendant fled 

was a question for its determination and that flight alone was not sufficient to find the 

defendant guilty. The instruction, read as a whole, and in light of the facts of this case, 

renders any error in giving the flight instruction harmless.

III. Impeachment with Defendant’s Prior Rape Convictions

The defendant argues that the trial court erred by ruling that he could be 

impeached with his prior convictions for rape and attempted rape. The State disputes this 

and responds that the opinion of this court regarding the defendant‟s first conviction for

this offense concludes that the trial court, in that case, correctly determined that these 

convictions were admissible. Thus, in the State‟s view, the law of the case applies. 

Following consideration of the State‟s motion to impeach the defendant with his 

prior felony convictions, applying Tennessee Rule of Evidence 609, the trial court 

explained why the defendant could be questioned regarding two of his prior felony 

convictions:

The two prior rapes, however, they are felonies and within the ten 

years. I believe in the interest of justice that if the defendant were to testify, 

. . . the State should be allowed to ask him about these. It meets the 

requirements under the law. It‟s not the same charge that‟s on trial here. 
8

So for those reasons I‟m going to allow it. So those are the only two 

convictions, State, that you can ask about. 

In two previous proceedings, this court concluded that, should the defendant 

testify, he could be impeached with these two convictions. In Michael Smith, 2013 WL

3702369, at *13, a panel of this court concluded that they were admissible because “they 

were probative of the defendant‟s credibility and not similar to the offenses for which he 

was on trial.” Likewise, in Michael Smith, 2014 WL 3954062, at *15, a different panel 

of this court, reviewing the defendant‟s convictions for aggravated assault and evading 

arrest, concluded that, should he testify in that trial, he could be cross-examined 

regarding these same two prior convictions, as well as a 2011 conviction for aggravated 

burglary, saying that the trial court had not abused its discretion in determining that the 

defendant could be impeached with the convictions. 

The “law of the case” doctrine applies to issues that were actually before the 

appellate court in the appeal and to issues that were necessarily decided by implication. 

See State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn. 2000) (citing Memphis Publ'g Co. 

v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.

1998)). When an initial appeal results in a remand to the trial court, the decision of the 

appellate court establishes the law of the case which generally must be followed upon 

remand by the trial court, and by an appellate court if a second appeal is taken from the 

judgment of the trial court after remand. Id. The “law of the case” doctrine prohibits 

reconsideration of issues that have already been decided in a prior appeal of the same 

case. Id.

Accordingly, applying this doctrine with the holding of this court in the 

defendant‟s first trial of this matter, we conclude that the trial court did not err in 

determining that the defendant could be impeached with evidence of these two prior 

convictions.

IV. Ex Parte Communication with Jury

While the jury was deliberating, the jurors sent to the judge a note, which said, 

“What happens if the jury is undecided about a charge?” On that note, the judge 

responded: “Keep working and do your best to come to an agreement. Re-read page 11.” 

Later that day, the jury sent a second note, in which the phrase, “Assault – Bodily injury 

– do we have,” was written and crossed out, followed by the question, “If we throw out 

the credibility of the witness, do we have a case?” To this, the trial judge responded in 

writing on the jurors‟ note, “I cannot comment on the credibility of witnesses. That is 

your job as a jury collectively and unanimously.” 
9

These communications later were discussed in court as the defendant, himself, 

argued that the trial court should recuse itself from the proceeding partly because of these 

ex parte questions and responses. The trial court declined the recusal request. On appeal, 

the defendant argues that, had he been brought into the courtroom before the court 

responded to the questions, the parties “would have been able to grasp the true meaning 

of the jury‟s question regarding the credibility of the witness,” and he “would have been 

able to offer some helpful suggestions as to how best to handle the jury‟s question 

regarding the credibility of the witness.” 

The State responds that, while the trial court did not follow the proper procedure 

in responding to the jury questions, the defendant cannot show that he was prejudiced as 

a result. 

We agree with the defendant that the jury‟s questions should have been addressed 

in open court in the presence of the parties. State v. Tune, 872 S.W.2d 922, 929 (Tenn.

Crim. App. 1993). However, the failure to follow this procedure is subject to a harmless 

error analysis. Id. Reversal is normally not required unless the defendant has been 

prejudiced by an inappropriate response. Id.

In this matter, as to the first jury question, the trial court restated to the jurors their

responsibility and directed that they reread page 11 of the charge. As to the second 

question, the court declined comment and, again, restated the responsibility of the jury. 

Given the nature of these questions, and the specific responses by the trial court, we 

cannot conclude that the defendant was prejudiced by the fact the judge responded to the 

questions out of the presence of the parties. Accordingly, this assignment is without 

merit. 

V. Denial of Request for Mistrial

On appeal, the defendant argues that the trial court should have granted a mistrial 

because of certain responses given by the witness, Kimberly Chrestman, as the defendant 

was cross-examining her. The State disagrees, as do we.

The defendant‟s first conviction resulting from this episode was reversed because 

of an error by the trial court. The other convictions resulted from his committing an 

aggravated assault upon Ms. Chrestman. Given all of this, it is not surprising that Ms. 

Chrestman was other than cooperative when being cross-examined by the defendant 

himself. During his cross-examination, the defendant was directed by the trial court not 

to stand so close to Ms. Chrestman, and, on another occasion, the State asked that he not 

do so. His cross-examination was long, tedious, and argumentative. The State made 

numerous objections to the form and relevance of the defendant‟s questions; and the 
10

court, likewise, found a number of the questions irrelevant and instructed the defendant 

not to ask another question while the State still was objecting to his previous question. 

For instance, the defendant asked Ms. Chrestman why she did not tell the officers 

responding to the 911 call that he had assaulted her in the bedroom, and her answer, in 

part, was “[b]ecause this was an everyday occurrence with me and you.” The defendant 

then objected to this answer, but the trial court agreed with the State that it was invited by 

his question. He asked if she had not posted bond for him after he was arrested and then 

objected to her response, “Michael, I‟ve helped you post bond several times like a 

dummy.” He asked if she had not talked with his previous lawyer, Javier Bailey, out of 

the defendant‟s presence and then objected to her explanation, “You were in prison.” 

Following other back and forth questions between the defendant and the witness, 

the trial court, out of the presence of the jury, assisted by the State, advised the witness to 

maintain her composure. At this point, the defendant asked for a mistrial based upon the

responses of Ms. Chrestman, which the court denied, saying, “You can‟t cause a mistrial 

and then ask for one.” 

The decision of whether or not to declare a mistrial lies within the sound discretion 

of the trial court. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A 

mistrial should be declared in a criminal case only when something has occurred that 

would prevent an impartial verdict, thereby resulting in a miscarriage of justice if a 

mistrial is not declared. See Id.; State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App. 

1999); Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). “Generally a 

mistrial will be declared in a criminal case only when there is a „manifest necessity‟ 

requiring such action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443 

(Tenn. Crim. App. 1991) (quoting Arnold, 563 S.W.2d at 794). A manifest necessity 

exists when there is “no feasible alternative to halting the proceedings.” State v. Knight, 

616 S.W.2d 593, 596 (Tenn. 1981). The burden to show the necessity for a mistrial falls 

upon the party seeking the mistrial. Land, 34 S.W.3d at 527. This court will not disturb 

the trial court‟s decision unless there is an abuse of discretion. Id.

While the witness volunteered additional and sometimes non-responsive 

comments to the defendant‟s questioning, his irrelevant, confusing, and aggressive 

questions invited much of the information and opinions he objected to. We conclude that 

the trial court did not abuse its discretion in denying the defendant‟s request for a 

mistrial.
11

VI. Lost or Destroyed Jail Records

The defendant complains the office of the Shelby Country District Attorney had a 

duty to require that the jail preserve recordings of the defendant‟s jail visits and telephone 

calls. 

This matter appears to have first arisen following the defendant‟s previous 

counsel‟s filing, on January 21, 2014, a motion to dismiss based upon violation of due 

process and spoliation of evidence. These records were not sought until the eve of the 

defendant‟s second trial in this matter. According to the motion, “the State lost or failed 

to preserve audio/video recordings of jail visits and jail phone calls between [the 

defendant] and Kimberly Chrestman.” On January 31, 2014, the trial court conducted a 

lengthy hearing on the motion. Witnesses testifying were Javier Bailey, a former 

attorney who represented the defendant at the first trial of this matter; Michaele Byers, 

the keeper of records for the Shelby County Jail; Juaquatta Harris, one of the keeper of 

records for telephone calls by inmates of the Shelby County Jail; and the defendant. The 

hearing proceeded on the defendant‟s claim that the charges should be dismissed because 

of the violation of his right to due process by the Shelby County Jail and the Shelby 

County District Attorney. 

Following the hearing, the trial court made oral findings of facts and conclusions 

of law: 

There was nothing the state did to cause these records to be 

destroyed. They were never requested – the state was never requested to 

preserve this evidence. The state was not aware of this evidence until such 

time as defense counsel, on or about a week or so before trial, let it be 

known that he wanted these records. That‟s the first mention of any phone 

records.

. . . .

It‟s just like with the jail visitation. They would be glad to record 

the conversations, and, I suppose, the video of the visit, if they were 

specifically asked to do so beforehand. But here we have a situation where 

this was not discovery; this was never specifically asked for by the state –

this is not Brady evidence. I mean, there‟s an allegation that it‟s Brady 

evidence. If, for instance – let‟s say the state had requested these the day 

that he went into jail; and then, lo and behold, there was all sorts of 

conversation where the victim said, “You know, I‟m just going to lie on 

you – I‟m going to go in there, and I‟m just going to lie on you because I 
12

want you to go to jail even though you‟re innocent;” and then they turned 

around and destroyed it. That‟s what this rule is for. That‟s what this 

evidence is for. That‟s what all this Ferguson analysis – that‟s what it‟s for 

– where they purposely destroy evidence – or they had exculpatory 

evidence and they willingly and maliciously allowed it to be destroyed. 

And that‟s not the case here. Here, defense counsel, based on his own 

initiative, didn‟t want to tip the state off to the fact that he was getting these 

records, so he waited until a week before trial; and a week before trial, he 

says they didn‟t have it; but he never subpoenaed them that I can see. 

There‟s no subpoena in the records that I can see. But I will say that these 

records are rather voluminous but I have flipped through them numerous 

times on all sorts of occasions for all sorts of reasons dealing with [the 

defendant], and I‟ve never seen a subpoena for these records.

So, I don‟t think the state failed in its duty in any respect. In fact, as 

far as . . . I can tell from this – glean from this proof, whatever was 

contained in those phone records may have been more helpful to the state 

than not.

And furthermore, you know, it‟s just – I mean, he was enjoined from 

contacting the victim, and here he got under oath that on numerous 

occasions he called the victim from the jail. Holy mackerel. So, . . . each 

one of those is a violation of the court order – “Stay away and not have any 

contact” – each one. I don‟t remember any evidence that the restraining 

order was lifted. So, that‟s the danger, Mr. Smith, of insisting upon running 

your own show and insisting upon doing the things your way. I see nothing 

in what the state did to be faulty in this whatsoever. I think this was a 

mistake, perhaps, on behalf of the defense counsel, but the evidence is not 

there. You have the evidence the phone calls were made; and, I suppose, 

that‟s about as good as it‟s going to get. But I‟m not going to dismiss this 

case based on Ferguson or based on any violation of discovery or Brady or 

for keeping exculpatory evidence away from the defense. I find it‟s just the 

opposite. So, I‟m going to deny the motion to suppress. 

In State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999), the Tennessee Supreme 

Court addressed the issue as to what factors guide the determination of the consequences 

that flow from the State‟s loss or destruction of evidence which the accused contends 

would be exculpatory. The supreme court answered that the critical inquiry was whether 

a trial, conducted without the destroyed evidence, would be fundamentally fair. Id. In 

reaching its decision, the Ferguson court noted that its inquiry was distinct from one 

under Brady v. Maryland, 373 U.S. 83, 87 (1963), and United States v. Agurs, 427 U.S. 
13

97, 110-11 (1976), because those two cases addressed “plainly exculpatory” evidence, 

while Ferguson addressed a situation “wherein the existence of the destroyed videotape 

was known to the defense but where its true nature (exculpatory, inculpatory, or neutral) 

can never be determined.” 2 S.W.3d at 915.

The court went on to explain that the first step in the analysis is determining 

whether the State had a duty to “preserve” the evidence. Id. at 917. “Generally speaking, 

the State has a duty to preserve all evidence subject to discovery and inspection under 

Tenn. R. Crim. P. 16, or other applicable law.” Id. (footnote omitted). However,

“[w]hatever duty the Constitution imposes on the States to preserve 

evidence, that duty must be limited to evidence that might be expected to 

play a significant role in the suspect's defense. To meet this standard of 

constitutional materiality, evidence must both possess an exculpatory value 

that was apparent before the evidence was destroyed, and be of such a 

nature that the defendant would be unable to obtain comparable evidence 

by other reasonably available means.”

Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)). Only if the proof 

demonstrates the existence of a duty to preserve and further shows that the State has 

failed in that duty must a court turn to a balancing analysis involving consideration of the 

following factors: “1. The degree of negligence involved; 2. The significance of the 

destroyed evidence, considered in light of the probative value and reliability of secondary 

or substitute evidence that remains available; and 3. The sufficiency of the other evidence 

used at trial to support the conviction.” Id. (footnote omitted).

We note that the defendant did not request the jail telephone records or visitation 

records until two years after the incident, the eve of the first trial of this matter. Further,

in the appeal which followed that trial, the defendant, then representing himself, did not 

raise as an issue the absence of these records. Only off-handedly in his crossexamination of Ms. Chrestman did the defendant question her about telephone calls, 

asking, after numerous questions which brought about in great detail his breaking into the 

apartment and beating her, that if her testimony were true, “Why would you be talking to 

me on the phone after this happened?” As the defendant continued with similar 

questions, the trial court advised the defendant that he was opening the door to proof that, 

while in jail after the assault, and in violation of a restraining order, he had made 

telephone calls to Ms. Chrestman.

Applying the considerations of Ferguson, we cannot conclude that the trial court 

erred in finding that the non-availability of these records prejudiced the defendant. As 

did this court in Brown, we note that, since the defendant waited until two years after the 
14

offense to request the records, the State did not have a duty to retain them. As during the 

evidentiary hearing in that case, the defendant here did not testify as to the contents of the 

conversations or how they would have helped him. Further, the proof against the 

defendant was strong. Accordingly, we conclude that this assignment is without merit.

VII. Excluding Defense Testimony

The defendant argues that the trial court undermined his defense by excluding 

certain witness testimony. In his brief, he places the testimony into two categories: 

excluding proof of how “Ms. Chrestman acts while under the influence” and that “Mr. 

Ronning sold drugs to Ms. Chrestman on February 9, 2009.” As to the first category, he 

argues that the court erred in excluding witness testimony that, when under the influence 

of drugs and/or alcohol, Ms. Chrestman acted “crazy” and like a “whackadoo,” a term 

which remains undefined. Another excluded witness would have testified that, when 

under the influence, Ms. Chrestman was loud, belligerent, and erratic. 

As to this testimony, the trial court ruled that it was inadmissible, explaining that 

“there‟s been no allegation that she was the aggressor here and that she attacked you and 

you were defending yourself. There‟s no evidence of that. So self-defense, her violent 

behavior is totally irrelevant. And none of these witnesses that I can see can testify to her 

truthfulness or untruthfulness.” As for the defendant‟s proffer, the court further said, 

“[The State] has not gone into any other instances involving you two. But the door has 

already been opened. I‟m surprised the State has not gone through it but it‟s been 

opened.” 

And also, these witnesses would not have added anything. You had 

already got it in that she was a crack head thief. So her putting them on for 

purposes of asking them about her reputation for truth and veracity and also 

violent, I think it would have added nothing to the case and it would have 

opened the door to countless things and so I think under the circumstances, 

I had to get that on the record to show my reasoning for not allowing those 

two other witnesses to testify. 

On appeal, the defendant presents a new theory as to why the trial court erred by 

not allowing his witnesses to testify regarding how Kimberly Chrestman “acts while 

under the influence.” He acknowledges that he has changed his evidentiary theory since 

the trial regarding why this evidence was admissible, “Defendant recognizes that he 

framed this issue in a manner that focuses on the necessity defense. The more 

appropriate argument, however, is that [the witnesses‟] testimony could have been used 

to further establish Ms. Chrestman‟s level of impairment in February 9-10, 2009.” Since 

the defendant did not argue this evidentiary theory at trial, it is waived. Anticipating this 
15

ruling, he next argues that we should review this issue as “plain error.” We decline to do 

so, for such a review is not appropriate simply to enable a defendant to change 

evidentiary theories.

As his final argument, the defendant asserts that the trial court erred in not 

allowing the testimony of Charles Beasley “as to the fact that Matthew Ronning was 

providing the „crack‟ cocaine to Ms. Chrestman, Defendant‟s girlfriend at the time, 

knowing she had cancer.” In his pro se motion for new trial, the defendant did, in fact, 

make this argument. However, we have reviewed his jury-out questioning of Mr. 

Beasley, and the defendant neglected to ask the witness any questions in this regard. 

Thus, he is seeking an advisory opinion as to what he expects the trial court would have 

ruled on an issue that did not arise. This issue is without merit.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgment of the 

trial court.

____________________________________________

THOMAS T. WOODALL, PRESIDING JUDGE