IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 2, 2021 Session

STATE OF TENNESSEE v. MARIO MYERS

Appeal from the Criminal Court for Shelby County

No. 16-03621 James M. Lammey, Judge

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No. W2020-00337-CCA-R3-CD

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A Shelby County jury convicted the defendant, Mario Myers, of aggravated sexual battery 

for which he received a twelve-year sentence. On appeal, the defendant asserts the trial 

court erred in denying his right to self-representation and challenges the sufficiency of the 

evidence supporting his conviction. After a thorough review of the record, we affirm the 

judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS and 

CAMILLE R. MCMULLEN, JJ., joined.

Joshua J. Roberts (on appeal), Germantown, Tennessee and Jason Matthews (at trial), 

Memphis, Tennessee for the appellant, Mario Myers.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Lessie Rainey and 

Cavett Ostner, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural History

A Shelby County grand jury indicted the defendant for one count of aggravated 

sexual battery committed against his seven-year-old victim, J.S,

1 who was born on January 

3, 2007. Tenn. Code Ann. § 39-13-504(a)(4). The crime occurred on August 11, 2014, at 

 

1

It is the policy of this Court to refer to minor victims and their family members by initials only. 

Therefore, the victim will be referred to as “the victim” or “J.S.” and his mother and aunt will be referred 

to as “T.B.” and “R.B.,” respectively.

04/14/2021
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the home of R.B., the victim’s aunt. At the time, R.B. was in a relationship with the 

defendant and had agreed with the victim’s mother, T.B., to drive the victim to school each 

morning. That day, however, R.B. left the victim alone at her home with the defendant as 

she took her own son to school. While R.B. was gone, the defendant approached the victim,

who was in his cousin’s bedroom, told the victim to bend down, and placed his penis on 

the victim’s lips. After approximately five seconds, the victim pushed the defendant away 

and ran out of the room. When R.B. returned home, the victim told her what the defendant

did and then went to school.

Around noon, T.B. received a telephone call from R.B. who stated that the victim 

disclosed that “something happened with [the defendant] doing something to [the victim].” 

After the telephone call, T.B. went to the victim’s school and informed the school counselor

of the allegations. The school counselor spoke to the victim and then contacted the police. 

Officer Bryant Brooks of the Memphis Police Department responded to the school 

and created an initial report which detailed T.B. and the victim’s narratives of the 

allegations. While the victim was talking to the police, T.B. described the victim as “kind 

of anxious” and “eager to tell something had happened.” Afterwards, T.B. planned to take 

the victim to the hospital but went home instead as she was overwhelmed. On August, 26, 

2014, Letitia Cole of the Memphis Child Advocacy Center performed a forensic interview 

of the victim, which was played for the jury during trial. Ms. Cole also photographed the 

victim, and the photograph was entered into evidence.

Retired Lieutenant Marlon Wright investigated the victim’s case as part of a Child 

Protective Investigation Team (“CPIT”). In doing so, he observed the victim’s forensic 

interview and developed a person of interest named “Mario.” However, it took several 

months for police to identify the defendant as a suspect because T.B. did not know the 

defendant’s last name and R.B. would not provide it to her. Because he knew the defendant 

was dating R.B., Lieutenant Wright unsuccessfully attempted to contact her numerous 

times. Several months later, T.B. learned the defendant’s last name and informed

Lieutenant Wright. After failing to contact the defendant, Lieutenant Wright met with the 

CPIT, and the team issued a warrant for the defendant’s arrest. Finally, based upon the 

information provided during the victim’s forensic interview, Lieutenant Wright explained 

it was not necessary for the victim to participate in a physical forensic examination, or for 

law enforcement to investigate or photograph a specific crime scene.

When the victim testified at trial, he was twelve years old. He identified the 

defendant in court and provided additional details of the crime. The victim remembered 

being alone with the defendant at R.B.’s home one morning while she took the victim’s

cousin to school. The victim was in his cousin’s bedroom when the defendant entered and 

told him to “bend down.” The victim stated he was on his knees, and the defendant “put 
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his weener (sic) in my mouth.” More specifically, the defendant put his penis on the 

victim’s lips for approximately five seconds. The victim then “pushed [the defendant] back 

and ran to the living room.” The victim was “a little scared” after the defendant made a 

statement regarding what might happen if the victim told someone about the defendant’s 

actions, but the victim could not recall specifically what the defendant said. When R.B. 

returned home, the victim told her what happened, and R.B. “got onto” the defendant 

“because [the defendant] had put his penis in [the victim’s] mouth.” 

The victim went to school that day but did not recall speaking with the school 

counselor or police though he did remember R.B. crying on the telephone when his mother 

picked him up from school. The victim acknowledged that he participated in and told the 

truth during a forensic interview at the Memphis Child Advocacy Center. The victim 

testified he watched the video of the interview but did not remember the interview

otherwise. While acknowledging he had claimed during his interview that there was a 

second incident with the defendant, the victim denied a second incident at trial. Finally, 

the victim testified that he tries not to think about what the defendant did, but when he does 

think about it, he is not scared like he was at the time it happened. 

The State rested its case, and the defendant moved for a judgment of acquittal. The 

trial court then attempted to conduct a Momon hearing. The defendant, however, was 

uncooperative, and the trial court ultimately held him in contempt. Additionally, at the 

outset and throughout the trial, the defendant made several oral requests to represent 

himself, all of which were denied by the trial court. Ultimately, the defendant did not 

present any proof, and the jury convicted him of aggravated sexual battery. The trial court 

imposed a twelve-year sentence for the crime and denied the defendant’s motion for a new 

trial.2 This timely appeal followed.

Analysis

I. Sufficiency of the Evidence

The defendant argues the evidence is insufficient to support his conviction for 

aggravated sexual battery because there is no physical evidence from or witness to the 

crime. As a result, the defendant asserts “the [j]ury was forced to rely primarily on the 

testimony of the minor victim” which was “inconsistent” and “largely manipulated and 

induced by the video of his previous forensic interview.” The State argues the evidence 

was sufficient to support the defendant’s conviction for aggravated sexual battery, and we 

agree.

 

2 The trial court ran the defendant’s sentence in this case consecutively to the sentence imposed in 

case number 16-00893.
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When the sufficiency of the evidence is challenged, the relevant question for the 

reviewing 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); see also Tenn. 

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury 

shall be set aside if the evidence is insufficient to support the findings by the trier of fact 

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions 

involving the credibility of witnesses, the weight and value to be given the evidence, and 

all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 

623 (Tenn. Crim. App. 1987). “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). Our supreme 

court has 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.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 

(1963)). “A jury conviction removes the presumption of innocence with which a defendant 

is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant 

has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 

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

Guilt may be found beyond a reasonable doubt where there is direct evidence, 

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776, 

779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); 

Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). 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)). The jury as the trier of fact must 

evaluate the credibility of the witnesses, determine the weight given to witnesses’ 

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 

335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). 

Moreover, the jury determines the weight to be given to circumstantial evidence and the 
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inferences to be drawn from this evidence and the extent to which the circumstances are 

consistent with guilt and inconsistent with innocence are questions primarily for the jury. 

Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). 

This Court, when considering the sufficiency of the evidence, shall not reweigh the 

evidence or substitute its inferences for those drawn by the trier of fact. Id.

The defendant was convicted of aggravated sexual battery. “Aggravated sexual 

battery is unlawful sexual contact with a victim by the defendant” where “the victim is less 

than thirteen years of age.” Tenn. Code Ann. § 39-13-504(a)(4). “‘Sexual contact’ 

includes the intentional touching of the victim’s, the defendant’s, or any other person’s 

intimate parts, or the intentional touching of the clothing covering the immediate area of 

the victim’s, the defendant’s, or any other person’s intimate parts, if that intentional 

touching can be reasonably construed as being for the purpose of sexual arousal or 

gratification.” Tenn. Code Ann. § 39-13-501(6). “‘Intimate parts’ includes . . . the primary 

genital area, groin, inner thigh, buttock or breast of a human being.” Tenn. Code Ann. § 

39-13-501(2).

Here, the proof established that the victim was seven years old on August 11, 2014. 

At the time, the defendant was dating the victim’s aunt, R.B., who drove the victim to 

school each day. That morning, however, R.B. left the victim alone with the defendant at 

her home. The defendant approached the victim, told the victim to bend down, and then 

placed his penis on the victim’s lips for approximately five seconds. The victim pushed 

the defendant away and ran from the room. The victim disclosed the defendant’s actions 

to R.B. when she returned home, and R.B. “got onto” the defendant. The victim went to

school after which R.B. disclosed the defendant’s actions to the victim’s mother, T.B., who

went to the victim’s school and informed the school counselor of the defendant’s actions. 

The counselor spoke to the victim and called the police. The victim later participated in a 

forensic interview where he again disclosed the defendant’s abuse. Officer Brooks, 

Lieutenant Wright, and the CPIT investigated the victim’s allegations against the defendant 

which ultimately led to the defendant’s arrest.

The defendant argues the evidence is insufficient to sustain his conviction because 

the victim’s testimony was inconsistent and there was no physical evidence to establish the 

crime. However, “there is no requirement that the victim’s testimony be corroborated,” 

and, we disagree with the defendant’s contention as the record indicates the victim 

provided a consistent description of the defendant’s actions, placing his penis on the 

victim’s mouth for five seconds, throughout the investigation which he also described at 

trial. State v. Smith, 42 S.W.3d 101, 106 (Tenn. Crim. App. 2000); see also State v. Joseph

Lester Haven, No. W2018-01204-CCA-R3-CD, 2020 WL 3410242, at *9 (Tenn. Crim. 

App. June 19, 2020) (holding even absent physical evidence of a crime, a victim’s 

testimony need not be corroborated to sustain convictions for rape of a child and aggravated 
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sexual battery). In addition, Lieutenant Wright explained it was not necessary to conduct 

a physical examination of the victim or of the crime scene based upon the allegations. 

Accordingly, sufficient evidence exists to show the defendant committed aggravated 

sexual battery against the victim, and the defendant is not entitled to relief.

II. Self-representation

The defendant argues “the [t]rial [c]ourt acted erroneously when [it] denied the 

defendant’s request for self-representation, despite the fact that his request was 

unequivocal, timely, and was made knowingly and intelligently.” The defendant asserts 

the alleged error is a structural, constitutional error that requires automatic reversal. The 

State argues the defendant has waived this claim for failing to raise it in his motion for a 

new trial and, even though not requested, asserts the defendant is not entitled to plain error 

review of this issue. Upon our review, we conclude this issue is waived, and the defendant 

is not entitled to plain error review.

Initially, we note, the record makes clear that the defendant made several requests 

to represent himself throughout the trial, and the trial court denied each request. The record

also makes clear that the defendant failed to specifically allege as error in his motion for a

new trial the trial court’s denial of his right to self-representation. Instead, the defendant 

alleged that he “was prejudiced in that he would not confer with counsel and should have 

been appointed new counsel.” We do not find this allegation sufficient to preserve the 

issue regarding his right to self-representation on appeal as it is well-settled that:

. . . [I]n all cases tried by a jury, no issue presented for review shall be 

predicated upon error in the admission or exclusion of evidence, jury 

instructions granted or refused, misconduct of jurors, parties or counsel, or 

other action committed or occurring during the trial of the case, or other 

ground upon which a new trial is sought, unless the same was specifically 

stated in a motion for a new trial; otherwise such issues will be treated as 

waived.

Tenn. R. App. P. 3(e). Because the defendant failed to specifically raise the alleged error 

of the trial court regarding its denial of his right to represent himself in his motion for a 

new trial, the issue is waived, and the defendant is not entitled to relief. Id. 

The State further argues the defendant is not entitled to plain error relief despite 

failing to request the same, and we again agree. Under the plain error doctrine, a defendant 

may obtain relief only if all of the following criteria are satisfied: (1) the record clearly 

establishes what occurred in the trial court, (2) a clear and unequivocal rule of law was 

breached, (3) a substantial right of the accused was adversely affected, (4) the issue was 
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not waived for tactical reasons, and (5) consideration of the error is necessary to do 

substantial justice. State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016); State v. Hester, 

324 S.W.3d 1, 56 (Tenn. 2010). 

Here, the record does not clearly establish what occurred in the trial court prior to 

the court’s denial of the defendant’s request to proceed pro se. Not only is it unclear if the 

defendant requested to represent himself prior to trial, but also it is unclear if the trial court 

conducted a hearing prior to its ruling. As is pertinent to this appeal, the record includes 

the following exchange which occurred at the outset of trial:

The Court: Mr. Myers, you have this one-count indictment for aggravated 

sexual battery. It’s been pending for a while now. You went to trial on the 

other case. Who represented you on that other case? 

[Defense Counsel]: Dewun Settle. 

The Defendant: For the record, I have always represented myself from the 

beginning, sir. 

The Court: Yes, sir. 

The Defendant: Any other representation by any attorney from the State was 

by unconscionable dealings and by material alteration –

The Court: Right. 

The Defendant: -- of the instruments for the record. 

The Court: And I found in the past and I’ll find again that you’re not 

qualified to represent yourself. You aren’t even talking about the same laws 

that apply to the rest of us, Mr. Myers. And I would I beseech you to consider 

helping your attorney because I think the last time you didn’t help your 

attorney, it didn’t turn out too well.

As outlined above, while the trial court clearly denied the defendant’s request to 

represent himself, the record fails to establish what occurred in the trial court prior to the 

court’s ruling. Furthermore, during oral argument, this Court asked the parties to explain 

the ruling of the trial court, but neither party was able to provide information regarding the 

context of the ruling. Therefore, while it is clear the trial court unequivocally denied the 

defendant’s request to represent himself, the record fails to establish whether the defendant 

requested to represent himself prior to trial or whether the trial court conducted a hearing 
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regarding the request prior to trial. Accordingly, the record is unclear, and, even though 

not requested, plain error review is not warranted. Martin, 505 S.W.3d at 504; Hester, 324 

S.W.3d at 56. This issue is without merit.

Conclusion

Based upon the foregoing authorities and reasoning, the judgment of the trial court 

is affirmed.

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 J. ROSS DYER, JUDGE