State of Tennessee v. Tyler Ward Enix

Knoxville, TN - Criminal defense attorney represented Tyler Ward Enix with three counts of first degree felony murder, one count of premeditated first degree murder, one count of especially aggravated robbery, one count of especially aggravated kidnapping, and one count of carjacking charges.

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

premeditated first degree murder, especially aggravated robbery, especially aggravated

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

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

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

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

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

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

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

an issue with alcohol.

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

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

violent.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

quit drinking. - 3 -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant "made an inappropriate comment regarding [one of the children's] butt[s] . . .

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

eventually dismissed.

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

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

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

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

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

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

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

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

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

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

spring of 2015.

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

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

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

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

victim's house again.

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

Hillcrest North, as the social services director. Ms. Guy worked with the victim. Ms. Guy - 4 -

described the victim as "sweet as pie” and "relieved” after her divorce from Defendant was

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

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

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

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

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

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

ever left Defendant.

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

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

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

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

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

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

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

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

The records custodian for the Knox County Emergency Communications District

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

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

Sergeant Michael Perry of the Knoxville Police Department performed the welfare

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

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

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

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

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

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

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

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

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

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

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

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

victim's apartment. - 5 -

Defendant was arrested in Morrow County, Ohio on October 29 as a result of a tip

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

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

daughter was in the car with him unharmed.

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

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

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

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

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

account withdrawals.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

arrest contained blood matching the victim's DNA.

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

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

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

on the ground.”

FBI Special Agent Stephen McFall testified as a computer forensic examiner

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

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

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

victim and Defendant can be heard arguing about food. Defendant accused the victim of - 6 -

taking away food before he could eat it. The victim can be heard saying Defendant was

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

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

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

daughter around any men. Defendant threatened to "break” the victim's neck.

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

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

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

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

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

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

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

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

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

tried for the child's murder.

1

Defendant's phone contained a multitude of "notes.” The notes appeared to

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

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

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

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

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

the victim's "daily” drinking and threats. Many of these text messages between the victim

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

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

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

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

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

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

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

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

night in "the girls room.”

Special Agent McFall also recovered Facebook messages that were exchanged

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

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



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

testimony about Casey Anthony. - 7 -

message, the victim responded that she did not "have to prove anything” to Defendant

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

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

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

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

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

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

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

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

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

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

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

Defendant's wife that would pick him up.

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

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

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

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

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

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

to be served consecutively to the life sentence.

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

the motion and this appeal followed.

Analysis

Change of Venue

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

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

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

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

waived because Defendant failed to renew his motion for change of venue after voir dire - 8 -

and because Defendant failed to provide a record demonstrating that he exhausted all of

his peremptory challenges.2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

coworkers talking about the case.

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

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

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

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

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

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

State indicated their approval of the jury.

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

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

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

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

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

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



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

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

failed to add to his argument on venue even in his reply brief. - 9 -

Tennessee Rule of Criminal Procedure 21(c). If a defendant fails to "take whatever action

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of venue include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

situation where a change of venue was appropriate. The record contains several articles - 10 -

and news clipping that reflect the nature, extent, and timing of the pretrial publicity, the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant is not entitled to relief on this issue.

Prior Bad Acts

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

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

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

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

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

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

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

no breach of a clear and unequivocal rule of law.- 11 -

Relevant evidence is that "having any tendency to make the existence of any fact

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

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

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

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

is inadmissible character evidence if offered to show a defendant's "action in conformity

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

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

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

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

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

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

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

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

requirements have been met:

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

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

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

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

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

convincing; and

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

by the danger of unfair prejudice.

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

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

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

quotation and citation omitted).

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

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

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

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

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

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

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

based on a clearly erroneous assessment of the evidence, or utilizes reasoning that results - 12 -

in injustice to the complaining party.” Jones, 450 S.W.3d at 892 (internal quotation and

citation omitted).

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

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

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

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

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

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

for new trial.

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

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

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

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

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

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

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

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

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

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

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

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

we look to the following five factors:

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

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

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

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

"necessary to do substantial justice.”

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

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

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

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

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

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

changed the outcome of the trial.” Id. (quoting Adkisson, 899 S.W.2d at 642). - 13 -

Defendant's brief generally addresses the plain error factors. However, Defendant

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

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

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

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

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

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

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

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

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

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

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

Hearsay Statement

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

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

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

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

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

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

that the victim feared Defendant.

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

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

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

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

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

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

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

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

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

"'[r]elevant evidence' means evidence having any tendency to make the existence of any

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

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

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

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

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

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

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

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

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

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

"Hearsay” is defined as "a statement other than one made by the declarant while

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

asserted.” Tenn. R. Evid. 801(c). A "statement” is "(1) an oral or written assertion or (2)

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

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

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

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

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

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

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

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

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

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

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

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

Crime Scene Photographs

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

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

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

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

and 159. The exhibits depicted the victim's "bloodied body and face.” Defendant argues

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

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

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

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

did not err in admitting the photographs.

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

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

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

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

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

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

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

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

as duplicative, determining:

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

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

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

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

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

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

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

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

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

degree of probative value than proof regarding extraneous issues.

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

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

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

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

admissible.

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

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

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

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

prejudice does not substantially outweigh this probative value. The court

finds this photo to be admissible.

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

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

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

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

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

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

prefer.

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

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

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

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

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

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

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

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

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

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

outweigh this probative value. This photo is admissible.

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

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

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

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

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

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

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

admissible.

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

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

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

of unfair prejudice. This photo is admissible.

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

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

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

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

admissible.

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

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

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

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

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

prejudice. This photo is admissible.

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

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

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

photographs:- 17 -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

appeal.

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

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

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

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

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

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

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

viewed the photographs.

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

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

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

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

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

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

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

Sufficiency

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

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

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

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

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

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

the conviction for especially aggravated robbery.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An act done after the exercise of reflection and judgment.

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

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

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

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

in order to determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

when the property is taken.”).

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant's theory was that he acted "out of a passion that precluded premeditation.”

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

that Defendant's actions were premeditated.

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

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

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

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

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

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

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

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

Defendant's convictions.

Improper Prosecutorial Argument

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

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

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

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

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

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

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

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

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

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

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

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

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

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

not entitled to relief on that one issue.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

challenges the prosecutor's "dramatic demonstration” during which the prosecutor counted

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

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

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

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

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

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

rage.” Defendant also failed to object to the prosecutor's request to show Defendant "the

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

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

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

relationship with his other two daughters.

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

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

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

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

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

Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

reviewed for plain error.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

issues that were not properly preserved for appeal.

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

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

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

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

comments made by the State during closing argument:

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

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

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

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

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

he doesn't.

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

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

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

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

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

Defendant's guilt.

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

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

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

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

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

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

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

during closing argument "'must be temperate, must be predicated on evidence introduced

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

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

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

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

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

App. 1996).

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

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

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

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

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

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

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

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

This Court must consider the following factors when determining whether the

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

verdict:

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

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

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

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

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

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

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

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

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

entitled to relief on this issue.

Jury Instructions

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

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

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

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

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

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

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

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

charge and the transcript of the charge. - 25 -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

presumption of correctness.

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

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

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

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

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

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

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

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

previously cautioned that

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

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

impossible for this court to discern whether the written jury instruction

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

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

129 (Tenn. Crim. App. 1981).

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

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

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

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

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

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

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

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

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

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

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

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

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

Cumulative Error

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

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

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

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