IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 19, 2019 Session

STATE OF TENNESSEE v. EARLY REYNOLDS

Appeal from the Circuit Court for Maury County

No. 25527 Stella L. Hargrove, Judge

___________________________________

No. M2018-00988-CCA-R3-CD

___________________________________

A Maury County jury convicted the Defendant, Early Reynolds, of unlawful possession 

of a firearm after a prior felony conviction involving use, or attempted use, of force, 

violence, or a deadly weapon. The trial court sentenced the Defendant as a career 

offender to serve fifteen years in the Tennessee Department of Correction. On appeal, 

the Defendant asserts that: (1) the trial court erred when it denied his motion to suppress 

statements made to the police after he invoked his right to remain silent; (2) the trial court 

improperly admitted a photograph of the Defendant holding a gun; and (3) the evidence is 

insufficient to support his conviction. After review, we affirm the trial court. 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and J. ROSS DYER, JJ., joined.

Brandon E. White, Columbia, Tennessee, for the appellant, Early Reynolds.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant 

Attorney General; Brent A. Cooper, District Attorney General; and S. Scott Speer, 

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

OPINION

I. Facts

This case arises out of the Defendant’s charges for aggravated domestic assault 

and violation of an order of protection after he made repeated phone calls to his exgirlfriend, Alvanette Caldwell, and sent her a text message with a photograph of him 

holding a revolver. At the time of his arrest, the Defendant gave consent for the police to 

search his residence and officers found a revolver wrapped in a rag near a storage shed. 

Consequently, a Maury County grand jury indicted the Defendant for unlawful 

06/25/2019
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possession of a firearm after a previous conviction for a felony involving force, violence, 

or a deadly weapon. The Defendant filed a motion to suppress his statement to police 

and a motion to exclude the photograph of him holding the revolver. After both motions 

were heard and denied, the case proceeded to trial.

A. Pretrial Motions

1. Motion to Suppress Statements

At the suppression hearing, the Defendant argued that Sergeant Michael Kash, 

Columbia Police Department officer, failed to honor his right to remain silent by 

proceeding with the interview after the Defendant requested that the interview stop. He 

further claimed that Sergeant Kash threatened him by telling him that he would report to 

the district attorney his lack of candor and dishonesty during the interview. The State 

responded that Sergeant Kash was honest with the Defendant about the procedures he 

followed and that the Defendant did not unequivocally terminate the interview.

A recording of the interview is included in the record on appeal. Our review of 

the interview is summarized as follows: Sergeant Kash entered the interview room and 

reviewed Miranda with the Defendant. He then confirmed the Defendant’s cell phone 

number with him and asked if law enforcement could retrieve information from the cell 

phone. The Defendant declined to allow law enforcement to conduct a “dump” of the 

information on the phone, and Sergeant Kash told him that he would seek a search 

warrant for the phone. The Defendant then gave consent for a search of the phone.

Initially, the Defendant denied calling Ms. Caldwell, asserting that she had called 

him. As Sergeant Kash and the Defendant talked, the Defendant admitted to calling Ms. 

Caldwell. The Defendant denied being at Ms. Caldwell’s home on two separate days and 

further denied sending her a photograph via text message. Sergeant Kash began 

questioning some of the Defendant’s responses as inconsistent with the police report. 

Sergeant Kash stated, “I didn’t have to bring you here, you could have been arrested.” In 

response, the Defendant stood up and said, “Come on, arrest me!” and “Take me to jail.” 

As the Defendant made these statements, Sergeant Kash continued talking over the 

Defendant about the police report and how he was trying to give the Defendant an 

opportunity to tell his side of the story. The Defendant stated, “I’m through talking,” but 

sat down in the interview room chair. He then said, “You know what? It’s not going to 

help the judge with nothing.” Sergeant Kash responded that the district attorney received 

copies of the interviews and that Sergeant Kash included information about whether an 

interviewee was cooperative or lying. The Defendant expressed his belief that he would 

receive jail time “anyway.” 
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The Defendant then returned to the topic of the photograph and asked Sergeant

Kash, “She showed the officer the picture of me?” Sergeant Kash confirmed that Ms. 

Caldwell had shown the photograph to an officer, and the Defendant inquired why his 

probation officer had not mentioned it to him when they met the day before. Sergeant

Kash explained that the probation officer likely did not have the police report at the time 

the Defendant met with the probation officer. 

The Defendant admitted sending the picture to Ms. Caldwell and, after some 

discussion, admitted that he owned and had fired the revolver. He stated that he bought 

the revolver “a day ago.” 

On the morning of trial1, the trial court heard additional testimony from Sergeant 

Kash about his interview with the Defendant. Sergeant Kash testified that he recalled 

talking with the Defendant about the fact that Sergeant Kash did not believe the 

Defendant was being forthcoming and the Defendant’s response that Sergeant Kash 

should “take [him] to jail.” Sergeant Kash recalled that he and the Defendant were 

talking over each other at the time but that he believed the Defendant made statements 

about arresting him or taking him to jail “a few times.” Sergeant Kash stated that he did 

not recall the Defendant saying, “I’m through talking.” He agreed that he had reviewed 

the video recording and heard the Defendant make the statement during the review but, at 

the time of the interview, both men were speaking loudly and over one another so that he 

did not hear the statement. 

Sergeant Kash testified that during his eleven years as a detective, if a suspect 

stated they wanted a lawyer or did not want to talk, he ceased all questioning. Sergeant 

Kash explained, “[I]f somebody says, ‘Take me to jail,’ but continues to talk to me, 

they’re telling me they really don’t want to go to jail. They’re just saying that they want 

to talk to me, as [the Defendant] did that day.” About his statement to the Defendant that 

he would provide information to the district attorney about his interaction with the 

Defendant, Sergeant Kash said that he advised all interviewees that he always conveyed 

to the district attorney the interviewee’s demeanor during the interview. Sergeant Kash 

denied that he used this practice as “a tool to threaten anybody.” He clarified that he 

never advised the district attorney about what punishment to seek but only included

information about the interview. He stated that he would answer any questions a 

prosecutor may have but that how the State proceeded on any given case was at the 

district attorney’s discretion.

 

1 According to the Defendant’s brief, after the January 8, 2018 suppression hearing but before the 

January 10, 2018 trial, the Defendant’s attorney requested that he be allowed to supplement the record 

with testimony from Sergeant Kash about whether Sergeant Kash had heard Mr. Reynolds’s statement 

terminating the interrogation. The trial court agreed; thus there was additional evidence presented after 

the trial court’s denial of the motion to suppress on January 8, 2018.
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Sergeant Kash summarized the interaction with the Defendant, explaining that he 

was attempting to convey to the Defendant that he wanted to hear the Defendant’s “side 

of the story,” and the Defendant responded that he did not think it would “matter.” The 

Defendant then initiated the discussion about the photograph of him holding a gun. 

On cross-examination, Sergeant Kash testified that, when an interviewee invoked 

a right, he had never failed to honor their invocation of the right to counsel or to remain 

silent. Sergeant Kash reiterated that he did not hear the Defendant’s statement about 

being “done talking” during the interview. Sergeant Kash stated that the Defendant took 

no actions consistent with a statement that he no longer wished to speak to Sergeant Kash

but resumed the conversation about the victim’s allegations. 

The trial court denied the Defendant’s motion to suppress. In so doing, it noted 

the Defendant’s criminal history and his familiarity with the criminal justice system and 

police interviews. The trial court identified various acts of compliance during the 

interview that indicated that the Defendant “knows how to do this.” The parties then 

played excerpts from the recording for the trial court. The trial court agreed that the 

Defendant stated that he was “done talking”; however, the trial court observed that the 

Defendant then sat back down without being told to do so. The trial court stated, “[I]t’s a 

pretty equivocal situation when he says ‘I’m through,’ and yet he sits down and continues

to ask really the next pertinent question himself.” The trial court concluded:

It’s not unequivocal. He doesn’t - - he doesn’t really stop the interview.”

He is no stranger to interviews in the criminal justice system. He 

sits back down immediately. The officer makes no advancements or 

movements towards him. He is calm. And then we know what happens 

next with those two issues and then the question on the part of [the 

Defendant].” 

2. Motion to Exclude Photograph

The Defendant asserted that the photograph of him holding a revolver should be 

excluded based on relevance and lack of authentication. The photograph was obtained 

when an officer spoke with the victim about the alleged aggravated assault and violation 

of an order of protection. The victim showed the officer a photograph on her cell phone 

that she alleged the Defendant sent to her via text message. The photograph depicted the 

Defendant holding a revolver. The text message was sent December 11, 2016, but the 

photograph itself only showed the date of December 11 with no indication of the year. 

The Defendant argued that the photograph could have been taken outside the four-year 
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statute of limitations for this offense and thus should be excluded from evidence due to

insufficient authentication. The State responded that the photograph was relevant to 

show the Defendant in possession of the same revolver found at his residence. The State 

asserted that it would introduce the gun and officer testimony for authentication. 

Upon further questioning by the trial court, the State elaborated on the proof it 

intended to present at trial. The State planned to introduce the gun, the photograph of the 

Defendant holding the gun, and excerpts from the recorded interview that included the 

Defendant identifying himself and the gun in the photograph, while also admitting

ownership of the gun and admitting he had purchased the gun the day before. The trial 

court denied the Defendant’s motion, finding that the photograph was relevant to the 

issue of possession and that the Defendant’s statements to the police provided a sufficient 

timeline for the Defendant’s possession of the gun. The trial courtalso concluded that the 

probative value of the photograph was not substantially outweighed by the danger of 

unfair prejudice. 2 

B. Trial

Ryan Webb, a Columbia Police Department (“CPD”) officer, testified that, on 

December 14, 2016, he investigated an incident that occurred on Stonebridge Way in 

Columbia, Tennessee. During the course of the investigation, he reviewed “a number of 

text messages.” More specifically, one of the text messages contained a photograph of an 

individual that Officer Webb recognized as the Defendant. Officer Webb drafted a report 

of the victim’s complaint against the Defendant and attached the photograph from the 

text message of the Defendant holding a revolver. The report also included the cell 

phone number associated with the photograph. Officer Webb identified the photograph 

of the Defendant that the victim showed him. Officer Webb confirmed that, after 

submitting his police report, the case was assigned to a detective for further investigation. 

On cross-examination, Officer Webb agreed that the photograph was dated 

“December 11,” the same day it was sent but that the photograph date did not display a 

year. Officer Webb further agreed that he had no personal knowledge of when the 

photograph of the Defendant holding the revolver was taken. 

Matt Thomas, a State of Tennessee law enforcement officer, testified that he 

participated in a search of the Defendant’s residence on December 15, 2016. When he 

arrived at the residence with other law enforcement officers, he observed the Defendant 

walk out into the front yard from the back of the house. The Defendant provided consent 

 

2 On the day of trial, before the jury was selected, the trial court added this finding to the 

prior ruling to deny the motion to exclude the photograph of the gun. 
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for a search of his property, and the officers spread out to search the house while the 

Defendant sat on a couch in the living room. After five to ten minutes of searching inside 

the house, Officer Thomas exited the house through the back door to search a shed in the 

backyard. Next to the shed was a riding lawnmower that was covered with a tarp.

 

Officer Thomas testified that the shed was elevated, so he lowered himself to the 

ground to look underneath the shed. While on the ground, he noticed a blue rag lying 

underneath the riding lawnmower. Officer Thomas testified that he retrieved the blue rag 

from underneath the lawnmower and found a loaded revolver wrapped inside the rag. He 

confirmed that the Defendant’s yard was not fenced. 

Brian Stoker, a CPD detective, testified that he was reviewing a case assigned to 

him and noticed that the case included information about a photograph of the Defendant 

holding a firearm. Detective Stoker was familiar with the Defendant and believed that 

the Defendant had a felony conviction. Detective Stoker reported this information to 

Sergeant Kash and then Detective Ervin. As a result, Detective Stoker and other officers 

went to the Defendant’s residence.

Detective Stoker testified that, when he arrived at the residence, he observed the 

Defendant walking from the left back side of the house to the front to meet the officers. 

Detective Stoker confirmed that he heard the Defendant consent to a search of his 

property. After searching inside the residence, Detective Stoker and several other 

officers searched the backyard. After a few minutes, Officer Thomas summoned

Detective Stoker to a lawnmower located next to the shed and showed him a revolver 

wrapped in a “blue thing.” Detective Stoker notified his supervisor, Sergeant Kash. 

Upon further inspection, Detective Stoker observed that the revolver could hold nine 

bullets but that there were only eight live rounds and one spent casing inside the cylinder.

Allan Ervin, a CPD detective, testified about the December 15, 2016 search of the 

Defendant’s residence. He recalled that the Defendant met the officers in front of the 

residence when they arrived and that the Defendant provided consent to a search of his 

property. Detective Ervin stayed in the living room area with the Defendant while the 

other officers conducted the search. At some point, Detective Stoker informed Sergeant 

Kash “there was something outside.” Sergeant Kash asked Detective Ervin to retrieve his 

camera and photograph a revolver found near a shed. Detective Ervin identified 

photographs of the area where the revolver was found and the revolver. 

Detective Ervin testified that, at a later time, Sergeant Kash asked him to return to 

the Defendant’s residence for the purpose of confirming whether there was a “gunshot 

through the window, rear of the residence.” Detective Ervin observed what appeared to 

be a bullet hole through the lower half of one of the windows. He also observed some 
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damage to a tree, approximately three or four feet from the window, consistent with 

damage caused by a bullet. 

Detective Ervin testified that a week before the trial, the district attorney’s Office 

contacted him and requested that he take the revolver recovered from the Defendant’s 

property and confirm whether it was operational. Detective Ervin and Sergeant Kash 

took the revolver to the gun range and fired a round from the revolver. 

Sergeant Kash testified that he assigned Detective Stoker a case involving the 

Defendant. In the case file was a photograph of the Defendant holding a revolver. 

Detective Stoker provided Sergeant Kash with some additional information regarding the 

Defendant and, as a result, Detective Ervin, Detective Stoker, Officer Thomas, and 

Officer Stone went to the Defendant’s residence in Columbia, Tennessee. With the 

Defendant’s permission, the officers searched the property and found a revolver wrapped 

in a blue rag. The Defendant was transported to the police department where Sergeant 

Kash interviewed him. 

Sergeant Kash testified that the interview was approximately an hour and a half

long and that the Defendant initially denied that he was the man holding the revolver in 

the photograph. Ultimately, however, he admitted sending the photograph of himself 

holding the revolver. The Defendant also claimed ownership of the gun and disclosed 

that he had fired the gun. The State played relevant portions of the recorded interview for 

the jury. Sergeant Kash agreed that during the interview, the Defendant first claimed that 

he fired the gun in a creek at a squirrel but then admitted firing the gun through a window 

of his house. The Defendant told Sergeant Kash, “Go out and look at [his] window.” 

Sergeant Kash sent Detective Ervin to confirm the Defendant’s story. 

Sergeant Kash testified that, during the interview, the Defendant admitted that he 

bought the revolver the previous day “on the street.” He further admitted that he put the 

gun in the backyard by the lawnmower. Sergeant Kash recalled that he also confirmed 

the Defendant’s cell phone number with him during the interview. The cell phone 

number the Defendant identified as his own was the same cell phone number displayed 

on the text message containing the photograph of the Defendant holding the revolver. 

The Defendant stipulated that on May 12, 2015, he was convicted of a felony 

involving the use or attempted use of force, violence, or a deadly weapon, which was the 

required predicate conviction pursuant to Tennessee Code Annotated section 39-17-

1307(b)(1)(A).

Based upon this evidence, the jury convicted the Defendant of unlawful possession 

of a firearm after a prior felony conviction involving the use or attempted use of force, 
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violence, or a deadly weapon. The trial court sentenced the Defendant as a career 

offender to serve fifteen years in the Tennessee Department of Correction. It is from this 

judgment that the Defendant appeals. 

II. Analysis

On appeal, the Defendant asserts that: (1) the trial court erred when it denied his 

motion to suppress statements made to the police after he invoked his right to remain 

silent; (2) the trial court improperly admitted a photograph of the Defendant holding a 

gun; and (3) the evidence is insufficient to support his conviction.

A. Motion to Suppress Statements

The Defendant asserts that the trial court erred when it denied his motion to 

suppress his statements during a police interview. He argues that his invocation of his 

right to remain silent was not equivocal and that the evidence preponderates against the 

trial court’s finding that Sergeant Kash’s testimony was credible. The State responds that 

the Defendant did not make an unequivocal request to stop the interview; therefore, the 

trial court properly denied the motion. We agree with the State. 

Our standard of review for a trial court’s findings of fact and conclusions of law 

on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 

1996). Under this standard, “a trial court’s findings of fact in a suppression hearing will 

be upheld unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the 

prevailing party in the trial court is afforded the ‘strongest legitimate view of the 

evidence and all reasonable and legitimate inferences that may be drawn from that 

evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 

978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this Court reviews de novo the trial 

court’s application of the law to the facts, without according any presumption of 

correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); 

State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as the trier of fact, 

is able to assess the credibility of the witnesses, determine the weight and value to be 

afforded the evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at 

23. In reviewing a trial court’s ruling on a motion to suppress, an appellate court may 

consider the evidence presented both at the suppression hearing and at the subsequent 

trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

The privilege against self-incrimination guaranteed by both the Fifth Amendment 

to the United States Constitution and article I, section 9 of the Tennessee Constitution, 

affords criminal defendants the right to remain silent. State v. Climer, 400 S.W.3d 537, 

556-57 (Tenn. 2013); State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000); State v.
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Crump, 834 S.W.2d 265, 268 (Tenn. 1992). An accused who wishes to rely on the 

constitutional right to remain silent, however, must unambiguously invoke it. Berghuis v. 

Thompkins, 560 U.S. 370 (holding that the defendant’s prolonged silence in the face of 

police questioning did not amount to an unambiguous invocation of the right to remain 

silent). A court must determine from an objective viewpoint whether “a responsible 

police officer in the circumstances would understand the statement to be a request [to 

remain silent].” Id. at 381.

Before the police must scrupulously honor a suspect’s right to remain silent, the 

suspect must clearly articulate that right so that a reasonable police officer under the 

circumstances would understand the suspect’s words and conduct to mean that the 

suspect wants to exercise his right to cut off further questioning. See State v. John E. 

Turner, No. M2002-02454-CCA-R3-CD, 2003 WL 22970970, at *2 (Tenn. Crim. App. 

Dec. 18, 2003) (citing State v. William M. Hukowicz, No. M1999-00073-CCA-R9-CD, 

2000 WL 1246430, at *2 (Tenn. Crim. App., at Nashville, Aug. 18, 2000), no perm. app. 

filed). This requirement prevents law enforcement officers from having to make

“difficult decisions about an accused’s unclear intent and face the consequence of 

suppression ‘if they guess wrong.’” Berghuis, 560 U.S. at 382 (quoting Davis v. United 

States, 512 U.S. 452, 459 (1994).

At the motion for new trial hearing, the trial court denied the motion and made the 

specific finding that it found “Sergeant Kash 100 percent credible as a witness.” 

Sergeant Kash testified that he did not hear the Defendant say, “I’m done talking.” The 

evidence does not preponderate against the trial court’s findings in this respect. The 

recording of the interview showed the two men talking loudly over one another. Much of 

what was being said by both men is difficult to hear. The Defendant, of his own 

choosing, sat down immediately following saying, “I’m through talking,” and continued

to engage in a conversation with Sergeant Kash. Moreover, it was the Defendant who 

initiated further discussion about the photograph. The Defendant’s words and conduct 

did not clearly articulate a desire to cut off further questioning. The Defendant is not 

entitled to relief as to this issue.

B. Motion to Exclude Photograph

The Defendant asserts that the trial court abused its discretion when it admitted 

into evidence the photograph depicting the Defendant holding a revolver because the 

photograph was unfairly prejudicial and was undated. The State responds that the trial 

court properly admitted the photograph because it was relevant and corroborated the 

Defendant’s admissions to Sergeant Kash. We agree with the State. 
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In Tennessee, admissibility of evidence is within the sound discretion of the trial 

judge. State v. Saylor, 117 S.W.3d 239, 247 (Tenn. 2003). A photograph is admissible if 

it is relevant to an issue in dispute and if its probative value is not substantially 

outweighed by its prejudicial effect. Tenn. R. Evid. 403. The determination of whether 

proffered evidence is relevant in accordance with Tennessee Rule of Evidence 401 is left 

to the sound discretion of the trial judge, as is the determination of whether the probative 

value of evidence is substantially outweighed by the possibility of prejudice pursuant to 

Tennessee Rule of Evidence 403. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App.

1999) (citing State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995)); State v.

Burlison, 868 S.W.2d 713, 720-21 (Tenn. Crim. App. 1993). In making these decisions, 

the trial court must consider the questions of fact that the jury will have to consider in 

determining the accused’s guilt, as well as other evidence that has been introduced during 

the course of the trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).

We will only disturb an evidentiary ruling on appeal when it appears that the trial judge 

arbitrarily exercised his discretion. State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim.

App. 1989).

Initial questions of admissibility of evidence are governed by Tennessee Rules of 

Evidence 401 and 403. These rules require that the trial court must first determine 

whether the proffered evidence is relevant. Pursuant to Rule 401, evidence is deemed 

relevant if it has “any tendency to make the existence of any fact that is of consequence 

to the determination of the action more probable than it would be without the evidence.” 

See Forbes, 918 S.W.2d at 449. In other words, “evidence is relevant if it helps the trier 

of fact resolve an issue of fact.” NEIL P. COHEN, ET AL., TENNESSEE LAW OF EVIDENCE § 

4.01[4], at 4-8 (4th ed.2000). After the trial court finds that the proffered evidence is 

relevant, it then weighs the probative value of that evidence against the risk that the 

evidence will unfairly prejudice the trial. State v. James, 81 S.W.3d 751, 757 (Tenn.

2002). If the court finds that the probative value is substantially outweighed by its 

prejudicial effect, the evidence may be excluded. Tenn. R. Evid. 403. “‘Excluding 

relevant evidence under this rule is an extraordinary remedy that should be used sparingly 

and persons seeking to exclude otherwise admissible and relevant evidence have a 

significant burden of persuasion.’” James, 81 S.W.3d at 757-58 (quoting White v.

Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999)).

To be admissible, a photograph must be relevant to some issue at trial and the 

danger of unfair prejudice, confusion of the issues, or misleading the jury must not 

substantially outweigh its probative value. Tenn. R. Evid. 403; State v. Banks, 564 

S.W.2d 947, 949 (Tenn. 1978); State v. Gallaher, No. E2001-01876-CCA-R3-CD, 2003 

WL 21463017, at *2 (Tenn. Crim. App., at Knoxville, June 25, 2003). Before any 

photograph can be admitted into evidence it must be verified and authenticated by a 

witness with knowledge of the facts. Banks, 564 S.W.2d at 949-50. In Banks, our
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supreme court gave the trial courts guidance for determining the admissibility of relevant 

photographic evidence. As relevant to this case, the trial court should consider: the 

accuracy and clarity of the picture and its value as evidence; 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.

In our view, the trial court did not abuse its discretion when it admitted the 

photograph. A proper foundation was laid when the officer testified that the photograph 

was a fair and accurate representation of a photograph sent to the victim from the 

Defendant’s cell phone on December 11, 2016. Additionally, the Defendant admitted 

that the revolver in the photograph was the same revolver that police recovered from his 

home and that he had purchased the revolver “the day before.” Finally, the Defendant 

admitted that he texted the photograph to the victim on December 11, 2016. Although 

the Defendant stated to Sergeant Kash that he had bought the gun “the day before,” 

which would have been after December 11, 2016, the evidence related to the gun, when 

considered cumulatively, indicates that the revolver was a recent acquisition and,

therefore, relevant to the question of the Defendant’s possession of a gun at the time of 

these incidents.

As to its probative value, the photograph was probative in multiple ways: to 

show the Defendant’s actual possession of the gun; to show the similarities between the 

gun in the photograph and the gun recovered under the lawn mower in the Defendant’s 

back yard; and to corroborate the Defendant’s testimony about his ownership, use of, and 

control over the gun. This probative value of the photograph was not substantially 

outweighed by any prejudice to the Defendant. Therefore, the Defendant is not entitled 

to relief as to this issue.

C. Sufficiency of the Evidence

The Defendant asserts that the evidence is insufficient to support his conviction for 

unlawfully possessing a firearm after a previous conviction for a felony involving force, 

violence, or a deadly weapon. He argues that, if this Court agrees about the improper 

admission of his statement and the photograph, the evidence is insufficient; however, 

since we did not conclude that the statement and photograph were improperly admitted, 

we consider his alternative argument that a reasonable jury could not infer constructive 

possession of the revolver because the State failed to prove that the revolver was found 

on his property. The State responds that the Defendant’s statement established that he 

exerted both actual and constructive possession of the revolver prior to his arrest. We 

agree with the State.
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When an accused challenges the sufficiency of the evidence, this Court’s standard 

of review is whether, after considering the evidence in the light most favorable to the 

State, “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); see Tenn. R. 

App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 

91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon 

direct evidence, circumstantial evidence, or a combination of both direct and 

circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 

1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the 

absence of direct evidence, a criminal offense may be established exclusively by 

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “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 Marable v. State, 313 S.W.2d 451, 457 

(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘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)). 

In determining the sufficiency of the evidence, this Court should not re-weigh or 

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 

1990). Nor may this Court substitute its inferences for those drawn by the trier of fact 

from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. 

State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of 

witnesses, the weight and value to be given the evidence, as well as all factual issues 

raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 

659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the 

testimony of the witnesses for the State and resolves all conflicts in favor of the theory of 

the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme 

Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge 

and the jury see the witnesses face to face, hear their testimony and observe 

their demeanor on the stand. Thus the trial judge and jury are the primary 

instrumentality of justice to determine the weight and credibility to be 

given to the testimony of witnesses. In the trial forum alone is there human 

atmosphere and the totality of the evidence cannot be reproduced with a 

written record in this Court.
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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 

523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest 

legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and 

legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 

775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of 

guilt against a defendant removes the presumption of innocence and raises a presumption 

of guilt, the convicted criminal defendant bears the burden of showing that the evidence 

was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 

557-58 (Tenn. 2000) (citations omitted).

The Defendant was convicted of violating Tennessee Code Annotated section 39-

17-1307(b)(1)(A), which provides that a person commits an offense “who unlawfully 

possesses a firearm” and “[h]as been convicted of a felony involving the use or attempted 

use of force, violence, or a deadly weapon.” 

Possession of a firearm may be actual or constructive. State v. Fayne, 451 S.W.3d

362, 374 (Tenn. 2014). Actual possession “refers to physical control over an item.” Id. 

at 370. On the other hand, constructive possession is established when a person has “‘the 

power and intention at a given time to exercise dominion and control over [a firearm] 

either directly or through others.’” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) 

(quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)). 

Constructive possession has also been defined as “‘the ability to reduce an object to 

actual possession.’” State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) 

(quoting United States v. Martinez, 588 F.2d 495, 498 (5th Cir. 1979)). Constructive 

possession depends on the totality of the circumstances in each case and may be 

established through circumstantial evidence. State v. Robinson, 400 S.W.3d 529, 534 

(Tenn. 2013) (citing T.C.A. § 39-17-419).

The evidence, viewed in the light most favorable to the State, shows that the 

Defendant, a convicted felon, admitted to buying a revolver and then photographing 

himself holding the revolver and sending it to his ex-girlfriend. He also admitted firing 

the revolver through a window of his house and placing the revolver under the lawn

mower in his back yard. The Defendant’s extrajudicial statements require corroboration. 

See State v. Bishop, 431 S.W.3d 22, 58 (Tenn. 2014). These statements are corroborated 

by the Defendant’s cell phone number displayed on the text with the photograph sent to 

the ex-girlfriend’s cell phone; the hole in a window at the Defendant’s residence; and law 

enforcement’s discovery of a revolver under the lawn mower in the Defendant’s back 

yard. Based upon this evidence, we conclude that a rational jury could find the 

Defendant guilty beyond a reasonable doubt of unlawful possession of the revolver. The 

Defendant stipulated that he had previously been convicted of a predicate felony. The 

Defendant is not entitled to relief as to this issue.
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III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the 

trial court’s judgment.

____________________________________

ROBERT W. WEDEMEYER, JUDGE