State of Tennessee v. Michael Rimmer

05/21/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 5, 2018 Session

STATE OF TENNESSEE v. MICHAEL RIMMER

Appeal from the Criminal Court for Shelby County
No. 98-01033, 98-01034 Chris Craft, Judge
___________________________________

No. W2017-00504-CCA-R3-DD
___________________________________

The Defendant, Michael Rimmer, was convicted by a Shelby County jury of first degree
premeditated murder, first degree felony murder, and aggravated robbery. T.C.A. §39-
13-202(1), (2) (Supp. 1998) (first degree murder), §39-13-402 (1997) (aggravated
robbery). The trial court merged the felony murder conviction into the premeditated
murder conviction. The jury sentenced the Defendant to death for the first degree murder
conviction, and the trial court sentenced him to eighteen years for the aggravated robbery
conviction and ordered it to be served consecutively to the sentence for the murder
conviction. On appeal, the Defendant contends that: (1) the evidence is insufficient to
support his convictions for first degree murder and aggravated robbery; (2) the trial court
erred in denying his motion to dismiss the felony murder charge; (3) the trial court erred
in denying his motion to suppress DNA evidence; (4) the trial court erred in not striking
the State’s opening statement or declaring a mistrial based on a comment made by the
State; (5) the trial court erred in admitting evidence of the Defendant’s prior convictions;
(6) the trial court erred in limiting the testimony of William Baldwin; (7) the trial court
erred in admitting a drawing of the backseat of the Honda the Defendant was driving
when he was arrested; (8) the trial court erred in finding James Allard was unavailable
and allowing his testimony from the previous trial to be entered into evidence; (9) the
trial court erred in admitting hearsay testimony through witness Rhonda Bell; (10) the
trial court erred in allowing Chris Ellsworth to display his scars to the jury; (11) the trial
court erred in allowing hearsay testimony through witness Tim Helldorfer; (12) the trial
court erred in limiting the testimony of Tim Helldorfer regarding a photograph
identification and the release of the Honda from police custody; (13) the trial court erred
in allowing Joyce Carmichael to testify about Tommy Voyles; (14) the trial court erred in
admitting previous testimony of deceased or otherwise unavailable witnesses; (15) the
trial court erred in admitting Richard Rimmer’s prior statement and related exhibits as
substantive evidence; (16) the trial court erred in limiting the testimony of Kenneth Falk;
(17) the trial court erred in limiting the testimony of Marilyn Miller; (18) the trial court
erred in excluding documents relating to a lawsuit involving the Shelby County Jail; and
(19) the trial court erred in applying an aggravating factor and imposing a consecutive
sentence for the aggravated robbery conviction. Following our review, we affirm the
judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL and NORMA MCGEE OGLE, JJ., joined.

Paul Bruno, Nashville, Tennessee; and Robert Parris, Memphis, Tennessee, for the
appellant, Michael Rimmer.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Andrew C. Coulam, Assistant Attorney General; Rachel M. Stephens
and Pamela S. Anderson, District Attorneys General Pro Tem, for the appellee, State of
Tennessee.

OPINION

PROCEDURAL BACKGROUND

On November 7, 1998, the Defendant, Michael Rimmer, was convicted by a
Shelby County jury of first degree premeditated murder, first degree felony murder,
aggravated robbery, and theft of property valued at $1,000 or more but less than $10,000.
The jury imposed a sentence of death. On appeal, this court affirmed his convictions but
reversed the sentence of death and remanded the case to the trial court for a new
sentencing hearing. See State v. Michael D. Rimmer, No. W1999-00637-CCA-R3-DD,
2001 WL 567960, at *1 (Tenn. Crim. App. May 25, 2001).

At the conclusion of the January 2004 resentencing hearing, the jury again
imposed a sentence of death. On appeal, this court affirmed. See State v. Michael Dale
Rimmer, No. W2004-002240-CCA-R3-CD, 2006 WL 3731206, at *1 (Tenn. Crim. App.
Aug. 13, 2007). The Tennessee Supreme Court, likewise, affirmed. See State v.
Rimmer, 250 S.W.3d 12, 18 (Tenn. 2008).

Thereafter, the Defendant filed a petition for post-conviction relief alleging that he
received the ineffective assistance of counsel. Following an evidentiary hearing, the
post-conviction court granted relief. The court found that defense counsel’s
“overburdened case load caused both counsel and the auxiliary members of the defense
team to conduct a seriously deficient investigation of petitioner’s case.” In particular,
-2-
counsel did not discover that a witness identified a man other than the Defendant as the
person he saw at the scene of the crime. Although the court acknowledged that the
State’s evidence against the Defendant was strong, it found that the undiscovered
evidence called into question the reliability of the jury’s verdict. The post-conviction
court concluded that the Defendant was entitled to a new trial. The State did not appeal.
Prior to the retrial, the trial court severed the theft charge.

At the subsequent trial in April 2016, the evidence showed that the Defendant and
the victim had an on-and-off relationship in the late 1970s and early 1980s. In 1989, the
Defendant pleaded guilty to burglary in the first degree, aggravated assault, and rape of
the victim. While serving his sentence, the Defendant threatened to kill the victim to
fellow inmates Roger Lescure and William Conaley. Both inmates testified that the
Defendant became very agitated when discussing the victim. The Defendant also
discussed methods for disposing of a body.

The Defendant was released from prison in January 1997 and began working for
an automobile repair shop. Through his work, he met Steve and Cheryl Featherston after
the Defendant assisted in repairing a car at their home. Later that month, the
Featherstons reported to the police that a 1998 maroon Honda Accord disappeared from
their driveway. Mr. Featherston testified that at the time the car disappeared, it was very
clean and did not have any upholstery stains.

During this time, the victim worked as a night clerk at a Memphis motel. She
reported to work on the night of February 7, 1997, and guests at the motel established that
she was present until approximately 1:45 a.m. on February 8. However, after that time,
the victim disappeared from the office, and she had no further communication with
anyone. Her body has never been found.

James Defevere checked into the motel between 1:00 and 1:15 a.m. on February 8.
When guest Natalie Doonan went to the vending area adjacent to the front office between
1:30 and 1:45 a.m., she saw a man enter the lobby. The victim was behind the desk at
this time. Dr. Ronald King was in the vending area around 1:40 a.m. and saw the victim
allow a man into the office through the locked security door. Dr. King said the man
drove a maroon car. Twenty to thirty minutes after Ms. Doonan left the vending area, she
called the front desk but received no answer. Mr. Defevere returned to the office to
check out around 2:25 a.m., but the victim was not in the office.

James Darnell and Dixie Presley stopped at the motel between 1:30 and 2:00 a.m.
to pick up a map, parking a few spaces from the night entrance. Ms. Presley waited in
the car while Mr. Darnell went inside. She saw a maroon car parked in front of the office
entrance with its trunk open. She thought this was odd because there was light rain. Mr.
-3-
Darnell noticed a man standing next to the trunk of a maroon car, which had been backed
into a parking spot with the trunk closest to the building. The man “had something rolled
up in his arms,” which the man placed in the trunk. Mr. Darnell said that the object was
rolled up in a “blanket” and that the car sank when it was placed in the trunk.

Mr. Darnell proceeded to the motel entrance, and the man who had been standing
by the car quickly walked to the entrance, as well. Mr. Darnell opened the door and
allowed the man to enter first. Mr. Darnell noticed the man had blood on his hands.
When Mr. Darnell entered the lobby, he saw that the office door was open and that a
different man was at the desk, pushing money under the window. Although Mr. Darnell
could not identify the man who was outside and followed him into the office, Mr. Darnell
identified the man behind the window as Billy Wayne Voyles.

Raymond Summers, CSX Railroad yardmaster, testified that CSX housed its
crews at the motel in February 1997. On February 7, Mr. Summers attempted to call the
front desk between 2:45 and 3:00 a.m., but no one answered. He then drove to the motel,
arriving approximately ten minutes later, and he found the night clerk’s office abandoned.
The secured door leading into the office was open, and Mr. Summers entered the office
looking for a motel employee. He heard running water and followed the sound into the
employee bathroom. In the bathroom, he saw blood on the sink basin and toilet and
bloody towels on the floor, and the toilet seat was missing. He immediately left the motel
in search of help. He encountered two Shelby County Sheriff deputies in a restaurant
parking lot near the motel. The deputies immediately went to the motel, secured the
scene, and called the Memphis Police Department (MPD).

MPD crime scene investigators found large amounts of blood, a cracked sink,
bloody towels, and a broken toilet seat. A bloody trail led from the bathroom, through
the office, and to the curb outside the motel’s night entrance. The motel manager
testified that approximately $600 was missing from the office as well as several sets of
sheets. Approximately $400 was missing from the register drawer and another $200 was
missing from a lockbox kept in a backroom. The victim kept a key in her pocket in order
to access the lockbox. The victim’s purse was in the office, her car was in the parking
lot, and her wedding ring, which she always wore, was found on the bathroom floor.

Between 8:30 and 9:00 on the morning of February 8, the Defendant arrived at his
brother’s home in Mississippi. The Defendant drove a maroon Honda, and his shoes and
the car were muddy. He claimed that he drove into a ditch. He carried a shovel to his
brother and asked his brother to dispose of it. The Defendant also asked his brother to
help him clean blood out of the backseat of the Honda. His brother allowed the
Defendant to clean his shoes but declined the Defendant’s request to stay at the home.
After the Defendant left, his brother disposed of the shovel.
-4-
 Although the Defendant had only worked at the repair shop for approximately
three weeks, his supervisor described him as a reliable worker. However, on February
10, the Defendant failed to report to work, and he was not seen again until March 5, when
he was stopped for speeding in Johnson County, Indiana. Authorities in Indiana
discovered that the car the Defendant drove was the Featherstons’ missing Honda and
that the Defendant was wanted for questioning in connection with the victim’s
disappearance.

Receipts found in the car showed that the Defendant had traveled throughout the
country since the victim’s disappearance. He traveled through Mississippi, Florida,
Missouri, Wyoming, Montana, California, Arizona, Texas, and Indiana. Investigators
found large blood stains in the back seat of the car. A DNA sample collected from the
victim’s mother, Marjorie Floyd, was compared with forensic evidence found in the car
and in the motel bathroom. DNA testing showed that the blood from the back seat was
consistent with a daughter of Ms. Floyd and that blood from the motel bathroom and the
car were consistent with the victim’s DNA.

While incarcerated in Indiana, the Defendant told his cellmate, James Allard, Jr.,
that he killed his “wife” in the motel where she worked. According to Mr. Allard, the
Defendant told him that “he went to [the victim’s] place of business, . . . that she let him
in there” and that he attacked her “in a back room behind the service desk or whatever in
the office part.” The Defendant told Mr. Allard that he shot the victim in the chest. The
Defendant stated that he had been “doing something” in the back room, that the victim
“got up,” and that he shot her a second time in the head. The Defendant described the
scene as bloody, said he had “dumped the body,” and expressed surprise that the body
had not been found.

Following his arrest, the Defendant participated in several escape attempts. The
Defendant used toenail clippers to cut an opening in the recreation-yard fence. The
Defendant discussed his plans with Mr. Allard, which included taking a guard hostage
and killing a guard if necessary. Two “shanks,” described as homemade knives, were
located in the Defendant’s Indiana cell. The Defendant attempted to escape again during
his transport from Indiana to Tennessee. The Defendant obtained control of the van and
led local law enforcement on a twenty-mile chase in Bowling Green, Ohio. Police
stopped the van at a roadblock and apprehended the Defendant. After arriving at the
Shelby County Jail, the Defendant and another inmate attempted to escape by sawing
through the bars of their cell, breaking a window, and repelling down the building using a
homemade rope.

-5-
 Upon this evidence, the jury convicted the Defendant of first degree premeditated
murder, first degree felony murder, and aggravated robbery. The trial court merged the
felony murder conviction into the premeditated murder conviction. At the bifurcated
sentencing hearing, the victim’s mother’s previous victim impact testimony was read to
the jury. As an aggravating factor, the State introduced certified copies of the
Defendant’s four prior felony convictions involving the use of violence against a person.
The Defendant chose not to present any mitigating evidence. The jury sentenced the
Defendant to death.
ANALYSIS

I. Sufficiency of the Evidence and Indictments

The Defendant contends that no evidence connected him to the crimes, but his
argument focuses on whether the indictments provided him with adequate notice that
other persons could have been involved in the crimes. The Defendant argues that the
evidence showed that two other men committed the murder and that no evidence supports
a theory of criminal responsibility. The State responds that ample evidence connected the
Defendant to the murder and to the robbery and that “the fact that others might have been
involved was not an element of the charged offenses.” Further, the State argues that
criminal responsibility is a theory of guilt and need not be stated in an indictment.

A. Sufficiency of the Evidence

In determining the sufficiency of the evidence, the standard of review 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 State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “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)). A conviction may be based upon circumstantial evidence alone. See Dorantes,
331 S.W.3d at 380-81.
-6-
 First degree murder is the unlawful, intentional, and premeditated killing of
another. T.C.A. §§ 39-13-201 (2014), 39-13-202(a)(1). In the context of first degree
murder, intent is shown if the defendant has the conscious objective or desire to cause the
victim’s death. State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002); T.C.A. §
39-11-106(a)(18) (2010) (amended 2011, 2014) (defining intentional as the “conscious
objective or desire to engage in the conduct or cause the result”). A premeditated act is
one which is

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.

Id. § 39-13-202(d). The question of whether a defendant acted with premeditation is a
question of fact for the jury to be determined from all of the circumstances surrounding
the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of
premeditation may be shown by direct or circumstantial evidence. State v. Brown, 836
S.W.2d 530, 541 (Tenn. 1992).

As relevant here, first degree felony murder is “[a] killing of another committed in
the perpetration of or attempt to perpetrate any . . . robbery[.]” T.C.A. § 39-13-202(a)(2)
(2014).

Aggravated robbery is defined, in relevant part, as “the intentional or knowing
theft of property from the person of another by violence or putting the person in fear,”
“where the victim suffers serious bodily injury.” Id. §§ 39-13-401(a) (2014), -402(a)(1).
Theft of property occurs when “with the intent to deprive the owner of property, [a]
person knowingly obtains or exercises control over the property without the owner’s
effective consent.” T.C.A. § 39-14-103(a) (2014).

There was strong direct and circumstantial evidence establishing that the
Defendant participated in the victim’s murder and the aggravated robbery of the victim.
The Defendant discussed his plan to kill the victim and to hide her body when he was
previously incarcerated for assaulting the victim. Witnesses testified that a maroon car
was seen at the motel, and the Defendant was seen with a maroon Honda the day after the
victim’s disappearance. The Defendant was driving the maroon Honda at the time of his
arrest, and the car contained blood and DNA consistent with that of the victim. The
-7-
motel bathroom contained the victim’s blood and DNA, and the victim was never seen
after the early morning hours of February 8, 1997. Testimony established that $600 and
several sets of bed sheets were missing from the motel office. Some of the missing
money was from a lockbox kept in a back room, and the victim kept the key to the box on
her person. The Defendant told another inmate that he had been in the back room “doing
something” after he shot the victim in the chest, that she “got up,” and he shot her in the
head. One of the witnesses saw a man place an object rolled up in a blanket in the trunk
of a maroon car that was backed into a parking place with its open trunk facing toward
the building. The car sank when the object was placed in the trunk.

Witnesses and investigators described a bloody scene indicative of a violent
struggle, supporting the conclusion that the victim suffered serious bodily injury.
Witness testimony also established that two perpetrators participated in the offenses. Mr.
Allard testified that the Defendant confessed to being present at the motel and to actively
participating in the attack against the victim. Several hours after the victim disappeared,
the Defendant arrived at his brother’s home Mississippi in a maroon Honda, which was
muddy. The Defendant’s shoes were muddy, and he asked his brother to dispose of a
shovel and to assist him in cleaning blood from the backseat of the car.

Following the victim’s disappearance, the Defendant also disappeared for
approximately one month. He stopped going to work and did not pick up his last
paycheck, although his supervisor described the Defendant as reliable. Receipts found in
the Honda showed that the Defendant had traveled throughout the country before his
arrest in Indiana. After his arrest, he told Mr. Allard that he had murdered the victim and
hid her body. The Defendant also attempted to escape from police custody on three
occasions. We conclude that sufficient evidence supports the first degree premeditated
murder, first degree felony murder, and aggravated robbery convictions.

B. Sufficiency of the Indictments

An individual accused of a crime has the right to be informed of the nature and
cause of an accusation against him. U.S. Const. amend. XI, XIV; Tenn. Const. art. 1, § 9.
Pursuant to Tennessee Code Annotated section 40-13-202 (2012), an indictment

must state the facts constituting the offense in ordinary and concise
language, without prolixity or repetition, in such a manner as to enable a
person of common understanding to know what is intended and with that
degree of certainty which will enable the court, on conviction, to pronounce
the proper judgment . . . .

-8-
Our supreme court has said that an indictment is sufficient if it provides adequate
information to enable the defendant to know the accusation against which he must
defend, furnishes the trial court with an adequate basis for entry of a proper judgment,
and protects the defendant from double jeopardy. See State v. Hill, 954 S.W.2d 725, 727
(Tenn. 1997); see also Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000). The supreme
court has held that “indictments which achieve the overriding purpose of notice to the
accused will be considered sufficient to satisfy both constitutional and statutory
requirements.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). In this regard,
“specific reference to a statute within the indictment may be sufficient to place the
accused on notice of the charged offense.” State v. Sledge, 15 S.W.3d 93, 95 (Tenn.
2000). The indictment “need not allege the specific theory or means by which the State
intends to prove each element of an offense to achieve the overriding purpose of notice to
the accused.” Hammonds, 30 S.W.3d at 300. Thus, the State is not required to assert a
theory of criminal responsibility in the charging instrument. State v. Lemacks, 996
S.W.2d 166, 172-73 (Tenn. 1999).

The indictments were not included in the appellate record, but they were read into
evidence at the trial. The aggravated robbery indictment in No. 98-01033 read as
follows:

Count 1, The grand jurors of the State of Tennessee . . . present that
[the Defendant], during the period of time between February 7th 1997, and
February 8th, 1997, in Shelby County, Tennessee, and before the finding of
this indictment, intentionally or knowingly did take from [the victim] a sum
of money of value by violence or putting [the victim] in fear. And the
victim . . . suffered serious bodily injury, in violation of Tennessee Code
Annotated 39-13-402 . . . .

The murder indictment in No. 98-01034 stated:

Count 1, The grand jurors of the [S]tate of Tennessee . . . present
that [the Defendant] during the period of time between February 7th 1997,
and February 8th, 1997, in [C]ounty of Shelby, Tennessee, and before the
finding of this indictment did unlawfully, intentionally, and with
premeditation kill [the victim] in violation of Tennessee Code Annotated
39-13-202 . . . .

Count 2[,] The grand jurors of the State of Tennessee . . . present
that [the Defendant], during the period of time between February 7th, 1997,
and February 8th, 1997, in Shelby County, Tennessee, did unlawfully, with
the intent to commit robbery, kill [the victim] during the perpetration of or
-9-
 attempt to perpetrate robbery, in violation of Tennessee Code Annotated
39-13-202 . . . .

The elements of aggravated robbery, premeditated murder, and felony murder
were clearly set forth in the indictment, along with the statutes for each. The Defendant
contends that the State’s rebuttal closing argument included statements that other persons
were involved in the crimes and that these assertions “surprised” him. However, the
State is not required to set forth its theory of guilt in the indictment. The State’s
argument was based on the proof submitted at trial, including witness testimony that
more than one person was participated in the crimes at the motel on the night the victim
disappeared. The Defendant is not entitled to relief on this basis.

II. Double Jeopardy

The Defendant asserts that the trial court erred in denying his motion to dismiss
Count 2 of the indictment charging him with felony murder. He argues that the felony
murder charge violated double jeopardy principles because a verdict was not returned on
that count in his first trial. The State responds that the failure to return a verdict was not
an implicit acquittal because the court had instructed the jury not to consider felony
murder if it found the Defendant guilty of first degree premeditated murder.

The double jeopardy clause of the Fifth Amendment to the United States
Constitution, applicable to the states through the Fourteenth Amendment, provides that
no person shall “be subject for the same offense to be twice put in jeopardy of life or limb
. . . .” Article 1, Section 10 of the Tennessee Constitution provides that “no person shall,
for the same offense, be twice put in jeopardy of life or limb.” The clause has been
interpreted to offer the following protections: “It protects against a second prosecution for
the same offense after acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple punishments for the same
offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969); see State v. Phillips, 924
S.W.2d 662, 664 (Tenn. 1996). The principle applies in cases in which “no final
determination of guilt or innocence has been made” and in which a jury has been given
the opportunity to return a verdict on a charge in one trial but failed to do so, impliedly
acquitting the defendant of that charge. United States v. Scott, 437 U.S. 82, 92 (1978);
Price v. Georgia, 398 U.S. 323, 329 (1970).

During the Defendant’s November 1998 trial, the trial court instructed the jury in
pertinent part:

- 10 -
 Indictment number 98-01034 charges the defendant with the offense
of MURDER IN THE FIRST DEGREE. This indictment is in two (2)
counts.

The First Count of indictment number 98-01034 charge that the
defendant did unlawfully, intentionally and with premeditation kill RICCI
LYNN ELLSWORTH. This offense embarces and includes the lesser
offenses of MURDER IN THE SECOND DEGREE, and VOLUNTARY
MANSLAUGHTER.

The Second Count of indictment number 98-01034 charges that the
defendant did unlawfully, and with the intent to commit robbery, kill
RICCI LYNN ELLSWORTH during the perpetration of ROBBERY.

Indictment number 98-01033 charges the defendant with the offense
of AGGRAVATED ROBBERY. This offense embraces and includes the
lesser offenses of ROBBERY and THEFT OF PROPERTY OVER $500.

Indictment number 97-02819 is in two (2) counts. Both counts
charge the defendant with the offense of THEFT OF PROPERTY.

These three indictments have been consolidated for trial at one time,
but it must be remembered at all times that even though the indictments are
being tried together, they are separate and distinct cases and must be treated
by the Jury as such.

....

You may convict the defendant on all indictments, or acquit him on
all indictments; or convict on one and acquit on the others. If you find from
the evidence, beyond a reasonable doubt, the defendant guilty [sic] of each
indictment, you should convict on each. If you find from the evidence,
beyond a reasonable doubt, one indictment guilty [sic] and have a
reasonable doubt as to the guilt of the other indictments, you should convict
on the one you are satisfied beyond a reasonable doubt of, and acquit on all
the others. If you have a reasonable doubt as to the guilt on all, you should
acquit on all.

As to the Theft indictment only, 97-02817, you may convict the
defendant on both counts; or convict on one and acquit on the other. If you
find from the evidence, beyond a reasonable doubt, the defendant of both
- 11 -
counts guilty [sic], you should convict on both. If you find from the
evidence, beyond a reasonable doubt, one count guilty [sic], and have a
reasonable doubt as to the guilt of the other count, you should convict on
the one you are satisfied beyond a reasonable doubt as to the guilt of, and
acquit on the other. If you have a reasonable doubt as to the guilt on both,
you should acquit on both.

....

When you retire to consider your verdict in indictment number 98-
01034, you will first inquire, is the defendant guilty of Murder in the First
Degree as charged in the First Count of the indictment? If you find the
defendant guilty of this offense, beyond a reasonable doubt, your verdict
should be,

“We the Jury, find the defendant guilty of Murder in the First Degree
as charged in the First Count of the Indictment.”

If you find the defendant not guilty of this offense, or if you have a
reasonable doubt of his guilt of this offense, you will acquit him thereof and
then proceed to inquire whether or not he is guilty of Murder in the First
Degree During the Perpetration of a Robbery as charged in the Second
Count of the indictment.

If you find, beyond a reasonable doubt, that the defendant is guilty
of this offense, your verdict should be,

“We the Jury, find the defendant guilty of Murder in the First Degree
During the Perpetration of a Robbery as charged in the Second Count of the
indictment.”

If you find the defendant not guilty of this offense, or if you have a
reasonable doubt of his guilt of this offense, you will acquit him thereof and
then proceed to inquire whether or not he is guilty of Murder in the Second
Degree as included in the First Count of the Indictment.

If you find, beyond a reasonable doubt, that the defendant is guilty
of this offense, your verdict should be,

“We, the Jury, find the defendant guilty of Murder in the Second
Degree as included in the First Count of the Indictment.”
- 12 -
 If you find the defendant not guilty of this offense, or if you have a
reasonable doubt of his guilt of this offense, you will acquit him thereof and
then proceed to inquire whether or not he is guilty of Voluntary
Manslaughter as included in the First Count of the indictment.

If you find, beyond a reasonable doubt, that the defendant is guilty
of this offense, your verdict should be,

“We, the Jury, find the defendant guilty of Voluntary Manslaughter
as included in the First Count of the Indictment.”

If you do find the defendant guilty, you can convict him of only one
of the above named offenses charged and included in this indictment . . . .

Next, the trial court instructed the jury as to the single count of aggravated robbery
charged in indictment 98-01034 and as to the two counts of theft charged in indictment
97-02817.

The jury convicted the Defendant of first degree premeditated murder and returned the
verdict for Count 1 without returning a verdict for felony murder in Count 2, as instructed
by the court. The jury also returned guilty verdicts for aggravated robbery and theft. See
State v. Michael Dale Rimmer, No. W2004-02240-CCA-R3-DD, 2006 WL 3731206, slip
op. at 1 (Tenn. Crim. App. Dec. 15, 2006), aff’d, 205 S.W.3d 12.

This type of jury instruction, in which the jury is told to consider a lesser included
offense only when it acquits of the greater offense, has been referred to as a “sequential”
or “acquittal first” instruction. See Harris v. State, 947 S.W.2d 156, 175-76 (Tenn. Crim.
App. 1996). Our supreme court has upheld the validity of such instructions, while also
cautioning that their use could potentially give rise to a double jeopardy problem. State
v. Howard, 30 S.W.3d 271, 274 n.4 (Tenn. 2000) (“While it was not error for the trial
court to deliver sequential jury instructions, we have previously urged trial courts to
allow juries to consider all theories of first-degree murder.”) (internal citations omitted).
Despite this potential problem, both this court and the supreme court have allowed new
trials of charges for which no verdicts were reached and in which sequential instructions
were given. See State v. Madkins, 989 S.W.2d 697, 699 (Tenn. 1999); State v. Burns,
979 S.W.2d 276, 291 (Tenn. 1998); State v. John E. Parnell, No. W1999-00562-CCA-
R3-CD, 2001 WL 124526, at *6 (Tenn. Crim. App. Feb. 6, 2001); State v. David William
Smith, No. 03C01-9809-CR-00344, 2000 WL 210378, at *6 (Tenn. Crim. App. Feb. 24,
2000).
- 13 -
 This court previously ordered a new trial under circumstances almost identical to
those in this case. In State v. Antonio Saulsberry, the defendant was indicted for one
count of premeditated murder, two counts of felony murder, and one count each of
especially aggravated robbery and conspiracy to commit a felony. No. 2005-00316-
CCA-R9-CD, 2006 WL 2596771, at *2 (Tenn. Crim. App. Sept. 11, 2006), perm. app.
denied (Tenn. Jan. 29, 2007). He was convicted of first degree premeditated murder,
especially aggravated robbery, and conspiracy to commit aggravated robbery. His
conviction for premeditated murder was reversed on appeal, and his remaining
convictions were affirmed. Thereafter, the State sought a new trial on the two counts of
felony murder. The defendant filed a motion to dismiss the indictment, arguing that the
new trial violated principles of double jeopardy. Id. at *1-3. This court concluded that
double jeopardy principles did not preclude a subsequent trial of the felony murder
charges. Id. at *5. The court noted that the sequential jury instructions, as provided in
this case, led to a presumption that the jury never considered the felony murder charges
after reaching a guilty verdict on premeditated murder. Id.

The jury at the Defendant’s first trial was instructed to consider the felony murder
charge only if it returned a not guilty verdict for premeditated murder. A jury is
presumed to follow the trial court’s instructions. Nesbit v. State, 452 S.W.3d 779, 799
(Tenn. 2014). We conclude that in this case the lack of a jury verdict on the felony
murder count at the first trial was not an implicit acquittal and that double jeopardy
principles were not violated at the second trial. The Defendant is not entitled to relief on
this basis.

III. Motion to Suppress DNA Evidence

The Defendant contends that the trial court erred in denying his motion to suppress
DNA evidence. He asserts that the State destroyed the maroon Honda without affording
the defense an opportunity to inspect it. The State avers that consideration of this issue is
barred by the doctrine of collateral estoppel because it was previously determined by the
post-conviction court. Alternatively, the State asserts that the issue is without merit
because it was not obligated to preserve an entire automobile indefinitely when the State
had documented the car and its contents and preserved evidence obtained from it.

A. Collateral Estoppel

In his petition for post-conviction relief, the Defendant contended that the State’s
failure to preserve the Honda for inspection by the defense violated his right to due
process under the law. The post-conviction court rejected this argument, concluding that
the State did not have a duty to preserve the car.
- 14 -
 The doctrine of collateral estoppel has been applied infrequently in criminal cases.
See State v. David Scarbrough, No. E2003-02850-CCA-R9-CD, 2004 WL 2280423, at
*8 (Tenn. Crim. App. Oct. 11, 2004) (noting that, at the time, no Tennessee appellate
court had considered the issue of offensive collateral estoppel in criminal cases). Our
supreme court has acknowledged that the doctrine’s application may be appropriate in
some criminal cases. See State v. Flake, 114 S.W.3d 487, 507 (Tenn. 2003) (choosing to
address a suppression issue on the merits even though the State argued collateral estoppel
applied because a court had previously rejected the issue in a petition to rehear). We
address this issue on the merits and decline to apply the doctrine of collateral estoppel.

B. Due Process Violation

The Defendant filed a motion to suppress DNA evidence gathered from the
maroon Honda, arguing that the State’s failure to preserve the car deprived the defense of
its ability to perform its own testing and violated his right to due process. The Defendant
asserts he was prejudiced in two ways: (1) he was unable to inspect the back seat upon
which blood was located, noting “a continuing dispute as to the amount of blood” on the
back seat and (2) he was unable to inspect the trunk to determine whether any blood was
inside, noting that a witness testified that someone placed a large object rolled up in a
“sheet” into the trunk, causing the trunk to sink. The Defendant argues that the testimony
implied the victim’s body was placed in the trunk and that, based on the amount of blood
found in the bathroom, the trunk likely contained blood evidence. At the pretrial hearing,
the trial court repeatedly pressed the Defendant to explain what benefit the defense could
have derived from the destroyed evidence. The Defendant argued it would have been
exculpatory if the trunk did not contain blood.

The trial court determined that the State had no duty to preserve the Honda. The
court concluded that the Defendant could receive a fundamentally fair trial without
having the car for inspection. The court noted that even if no blood were found in the
trunk, or someone else’s blood were found there, it would not exculpate the Defendant
given the other evidence in the car connecting him to the victim’s disappearance.

At the trial, Linda Littlejohn testified that she was employed by the Tennessee
Bureau of Investigation (TBI), and that in 1997, she worked as a forensic scientist in the
microanalysis unit processing trace evidence. She processed the maroon Honda, which
included taking photographs, obtaining an inventory of the car’s contents, and vacuuming
the car to capture hair and fibers. She also removed portions of the carpet and cloth seats.
After the car was processed, it was released by the police department.

- 15 -
 TBI forensic scientist Samera Zavaro testified that she conducted serological
analysis on evidence obtained from the crime scene and the maroon Honda. She
collected samples from the car that appeared to be blood, which included taking swabs of
hard surfaces and cuttings from fabric. She did not take samples from the trunk.

Our supreme court has “explained that the loss or destruction of potentially
exculpatory evidence may violate a defendant’s right to a fair trial.” State v. Merriman,
410 S.W.3d 779, 784 (Tenn. 2013) (citing State v. Ferguson, 2 S.W.3d 912 915-16
(Tenn. 1999)). The court observed that “the due process required under the Tennessee
Constitution was broader than the due process required under the United States
Constitution” and rejected the “bad faith” analysis espoused by the United States
Supreme Court in favor of “a balancing approach in which bad faith is but one of the
factors to be considered in determining whether the lost or destroyed evidence will
deprive a defendant of a fundamentally fair trial.” Merriman, 410 S.W.3d at 784-85; see
Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding that “[u]nless a criminal
defendant can show bad faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law”). Our supreme court
“observed that fundamental fairness, as an element of due process, requires a review of
the entire record to evaluate the effect of the State’s failure to preserve evidence.”
Merriman, 410 S.W.3d at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).

To facilitate this “balancing approach,” our supreme court stated that the trial
court must first “determine whether the State had a duty to preserve the evidence,”
observing that the State’s duty to preserve was “limited to constitutionally material
evidence.” Id. at 785. The court held that to be “constitutionally material,” the evidence
“must potentially possess exculpatory value and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means.”
Id. (citing Ferguson, 2 S.W.3d at 915, 918). “If the trial court determines that the State
had a duty to preserve the evidence, the court must determine if the State failed in its
duty.” Id. (citing Ferguson, 2 S.W.3d at 917). If the trial court concludes that the State
lost or destroyed evidence that it had a duty to preserve, the trial court must consider
three factors to determine the appropriate remedy for the State’s failure: “‘(1)[t]he degree
of negligence involved; (2)[t]he significance of the destroyed evidence, considered in
light of the probative value and reliability of secondary or substitute evidence that
remains available; and (3)[t]he sufficiency of the other evidence used at trial to support
the conviction.’” Id. (quoting Ferguson, 2 S.W.3d at 917). “If the trial court concludes
that a trial would be fundamentally unfair without the missing evidence, the trial court
may then impose an appropriate remedy to protect the defendant’s right to a fair trial,
including, but not limited to, dismissing the charges or providing a jury instruction.” Id.
at 785-86.

- 16 -
 This court reviews a trial court’s decision concerning the fundamental fairness of a
trial conducted without the destroyed evidence under a de novo standard of review. Id. at
791. If this court concludes that the trial would be fundamentally unfair in the absence of
the lost evidence, this court will apply an abuse of discretion standard to review the
appropriateness of the remedy imposed by the trial court. Id. at 792.

Our analysis begins by considering whether the State had a duty to preserve the
car. The duty to preserve arises only when the evidence is constitutionally material. The
Defendant contends that the evidence is material because a lack of blood in the trunk
would have undermined witness testimony implying that the victim’s body was placed in
the trunk. He asserts that this would have allowed him to argue that the maroon Honda
he drove was not the same car seen at the motel and, by implication, used in the crimes.
However, the Defendant has not articulated how evidence from the trunk would have
been exculpatory. As the trial court noted, a lack of blood in the trunk would not have
negated the evidence that a large blood stain, which matched the victim’s DNA, was
found in the backseat of the car. We conclude that any evidence that no blood was found
in the trunk would not have been exculpatory. Consequently, the State did not have a
duty to preserve the car because the trunk evidence was not constitutionally material.

The Defendant further contends that the trial court erred in refusing to provide a
jury instruction relative to the State’s release of the car. However, a jury instruction is a
remedy to be employed only after the court determines that the State had a duty to
preserve evidence. Because the court did not err in finding that the State did not have a
duty to preserve the car, a jury instruction was not required. The Defendant is not
entitled to relief on this issue.

IV. State’s Opening Statement

The Defendant next asserts that the trial court erred in not striking the State’s
opening statement or in not declaring a mistrial when the prosecutor said that the car had
been “taken.” The Defendant argues that the State’s reference to the car implied it had
been stolen, which violated the court’s pretrial order prohibiting the State from referring
to the car as stolen, pursuant to Tennessee Rule of Evidence 404(b), and due process.
The State disagrees, arguing that reference to the car as “taken” did not violate the court’s
pretrial ruling, that Rule 404(b) does not apply to opening statements, and that any due
process violation was by failing to object at the trial and in the motion for new trial.

In addition to the aggravated robbery and murder charges, the Defendant was
indicted for the theft of the Featherstons’ maroon Honda. However, the trial court
severed the theft charge prior to trial. The court determined that the theft was not part of
the same criminal transaction as the murder and aggravated robbery. It also prohibited
- 17 -
the State from eliciting evidence that the car had been stolen. However, the court
permitted the State to show that the Defendant had control of the car before and after
February 7, 1997, in order to establish that he was the perpetrator of the aggravated
robbery and murder. It recognized that the Defendant’s possession of the car before and
after the victim’s disappearance was “very material” to his identity as the perpetrator.

In the opening statement, the prosecutor said the following:

[F]rom February 8th through March 5th, [the Memphis Police Department]
had been looking for [the Defendant] everywhere they could. They also
knew that there was, obviously, some interest in this vehicle, maroon
vehicle, and they ended up locating that - - a friend that had worked with
[the Defendant] owned a vehicle matching that description. And learned
that that vehicle had been taken from outside [the Featherstons’] home.
And so the police are going to be on the lookout for this tag number and
this vehicle.

At the conclusion of the statement, the Defendant objected to the State’s use of the word
“taken,” moved to have the statement stricken, and argued that it was grounds for a
mistrial. According to the Defendant, the State’s words gave a “clear implication” that he
had stolen the car, violating the court’s order. The State argued that its statement did not
violate the court’s ruling because the car could have been borrowed or have been missing
due to a misunderstanding.

The trial court determined that the State did not violate its order or necessitate a
mistrial. The court found that the State had a right to show that the Defendant took the
car and that the car was missing but not that any crime was committed when the car was
taken. The court emphasized that the State would not be allowed to elicit testimony
about whether the Defendant had permission to take the car or whether the police were
called in response.

Opening statements “are intended merely to inform the trial judge and jury, in a
general way, of the nature of the case and to outline, generally, the facts each party
intended to prove.” State v. Reid, 164 S.W.3d 286, 343 (Tenn. 2005). Opening
statements are not evidence. State v. Thompson, 43 S.W.3d 516, 523 (Tenn. Crim. App.
2000). Trial courts should allow the parties to present “a summary of the facts supportive
of the respective theories of the case, only so long as those ‘facts are deemed likely to be
supported by admissible evidence.’” State v. Sexton, 368 S.W.3d 371, 415 (Tenn. 2012)
(quoting Stanfield v. Neblett, 339 S.W.3d 22, 41-42 (Tenn. Ct. App. 2010)). Therefore,
opening statements should “be predicated on evidence introduced during the trial” and

- 18 -
should never refer “to facts and circumstances which are not admissible in evidence.”
Sexton, 368 S.W.3d at 415.

A trial judge should declare a mistrial if manifest necessity arises. Arnold v. State,
563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Manifest necessity occurs when “no
feasible alternative to halting the proceedings” exists. State v. Knight, 616 S.W.2d 593,
596 (Tenn. 1981). “The granting or denial of a mistrial is within the sound discretion of
the trial court.” State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996); see
State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim. App. 1990). This court will only
disturb that decision if the trial court abused its discretion. State v. Adkins, 786 S.W.2d
642, 644 (Tenn. 1990).

The Defendant cites to a single authority to support his argument that the use of
the word taken during the opening statement was improper. In State v. James C. Greene,
Jr., the defendant challenged his conviction on the basis that the State referred to
inadmissible hearsay in its opening statement. No. 03C01-9407CR00247, 1995 WL
564939, at *1 (Tenn. Crim. App. Sept. 26, 1995). The trial court prohibited the State
from introducing evidence that the police had conducted surveillance on the defendant
based on information that he was involved in illegal activity. During the opening
statement, the prosecutor said, “[T]he Third Judicial Drug Task Force had information
that [the defendant was] dealing drugs.” The defendant immediately objected to
relevance and requested a mistrial. The court overruled the motion for a mistrial but
sustained the objection and advised the jury to disregard the statement and not consider it
for any purpose. Id. at *3.

On appeal, this court held that the defendant was not harmed by the prosecutor’s
statement and that a mistrial was not required. Id. at *4. The proof adduced at the trial
showed that the defendant was an admitted drug abuser but was not a seller. The court
concluded that the proof offered at the trial was not affected by the opening statement and
that the jury acquitted the defendant of possession with intent to sell or deliver. Id.

James C. Greene, Jr. is distinguishable from the present case because in James C.
Greene, Jr., the prosecutor explicitly defied the trial court’s order. However, in the
present case, the trial court concluded that the State’s comment did not run afoul of the
pretrial order and reiterated that the State was allowed to show that the Defendant had
possession of the car before and after the victim’s disappearance to establish his identity
as the perpetrator. The court attempted to balance the State’s right to use the evidence to
prove the perpetrator’s identity and the Defendant’s right to fairness by excluding
evidence of the theft. We conclude that the court did not abuse its discretion in refusing
to strike the opening statement or to grant a mistrial. The Defendant is not entitled to
relief on this basis.
- 19 -
 The Defendant also contends that the use of the word taken was a Fifth
Amendment due process violation. He did not object on this basis at the trial, and the
general contention is the extent of his argument on appeal. “In this jurisdiction, a party is
bound by the ground asserted when making an objection. The party cannot assert a new
or different theory to support the objection . . . in the appellate court.” State v. Adkisson,
899 S.W.2d 626, 634 (Tenn. Crim. App. 1994). When a party asserts new grounds in the
appellate court, the issue is treated as waived. Id. at 635. Furthermore, “[i]ssues which
are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). The
Defendant’s failure to object on this basis at the trial or to adequately address the issue in
his brief qualifies the issue for waiver. However, we will review this issue for plain
error.

Five factors are relevant

when deciding whether an error constitutes “plain error” in
the absence of an objection at trial: “(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 Adkisson, 899 S.W.2d at 641-
42). All five factors must exist in order for plain error to be recognized. Id. at 283.
“[C]omplete 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.” Id. In order for this court to
reverse the judgment of a trial court, the error must be “of such a great magnitude that it
probably changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d at 642. A
defendant carries the burden of proving that the trial court committed plain error. See
State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

The Defendant has not shown that the State’s use of the word taken amounted to a
violation of due process that adversely affected a substantial right. “For a ‘substantial
right’ of the accused to have been affected, the error must have prejudiced the appellant.
In other words, it must have affected the outcome of the trial court proceedings.” State v.
Maddin, 192 S.W.3d 558, 562 (Tenn. Crim. App. 2005). The State’s single use of the
word taken in its opening statement comported with the trial court’s previous ruling and
with the evidence presented at trial. The Defendant is not entitled to relief on this issue.
- 20 -
 V. Evidence of Prior Assault on Victim and Escape Attempts

The Defendant contends that the trial court erred in admitting evidence related to
his prior convictions for aggravated assault and rape of the victim. He asserts that the
prior convictions are propensity evidence, the admission of which was prohibited by
Tennessee Rule of Evidence 404(b). He also claims that the probative value of the
evidence was not substantially outweighed by the danger of unfair prejudice. See Tenn.
R. Evid. 403. He further contends that the court erred in admitting evidence of his escape
attempts, including testimony that two “shanks” were found in his cell. The State
responds that the court correctly admitted the evidence of the prior assault because it was
highly probative to show motive, intent, and premeditation. The State argues that the
court gave extensive jury instructions relative to the intended use of the evidence.
Similarly, the State argues that the escape attempts were properly admitted to show
consciousness of guilt.

The Defendant filed a pretrial motion pursuant to Tennessee Rule of Evidence
404(b) to exclude evidence of his prior convictions for the aggravated assault and rape
and of his escape attempts. After a hearing, the trial court determined that the
“extremely” high probative value of the prior convictions outweighed their prejudicial
effect. In particular, the court found that the victim in the present case was also the
victim of the aggravated assault and rape, which evidenced the Defendant’s motive,
intent, premeditation, and identity in the present case. Further, the court found that
admission of the escape attempts was proper to show consciousness of guilt.

Tennessee Rule of Evidence 404(b) prohibits the admission of evidence related to
other crimes, wrongs, or acts offered to show a character trait in order to establish that a
defendant acted in conformity with the trait. Tenn. R. Evid. 404(b). Such evidence,
though, “may . . . be admissible for other purposes,” including, but not limited to,
establishing identity, motive, common scheme or plan, intent, or absence of mistake. Id.;
see State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003). Before a trial court
determines the admissibility of such evidence,

(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.
- 21 -
Tenn. R. Evid. 404(b)(1)-(4). The standard of review is for an abuse of discretion,
provided a trial court substantially complied with the procedural requirements. State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); see State v. Electroplating, Inc., 990 S.W.2d
211 (Tenn. Crim. App. 1998).

The rationale behind the general rule of inadmissibility in Rule 404(b) is that the
admission of evidence of other wrongs poses a substantial risk that the trier of fact may
convict a defendant based upon the defendant’s bad character or propensity to commit
criminal offenses, rather than upon the strength of the evidence of guilt on the specific
offense for which the defendant is on trial. State v. Dotson, 254 S.W.3d 378, 387 (Tenn.
2008); State v. James, 81 S.W.3d 751, 758 (Tenn. 2002).

Evidence of other crimes, wrongs, or acts may be admitted as relevant to issues of
“identity (including motive and common scheme or plan), intent, or rebuttal of accident
or mistake.” Tenn. R. Evid. 404(b), Advisory Comm’n Cmts.; see Burch v. State, 605
S.W.2d 227, 229 (Tenn. 1980). To minimize the risk of unfair prejudice in the
introduction of evidence of other acts, however, Rule 404(b) establishes protective
procedures that must be followed before the evidence is admissible. See Tenn. R. Evid.
404(b); James, 81 S.W.3d at 758. Upon request, the trial court must hold a hearing
outside the jury’s presence to determine whether the evidence of the other acts is relevant
to prove a material issue other than the character of the defendant. James, 81 S.W.3d at
758. The trial court must state on the record the specific issue to which the evidence is
relevant and find the evidence of the other crime or act to be clear and convincing. Id. If
the trial court substantially follows the procedures in Rule 404(b), the court’s decision
will be given great deference on appeal and will be reversed only if the trial court abused
its discretion. Id. The Defendant acknowledges that the trial court followed the
procedures required by Rule 404(b).

With respect to the prior convictions, the record reflects that the trial court
carefully weighed the probative value against the danger of unfair prejudice. The
relevant convictions were for violent offenses and involved the victim in the present case.
The Defendant had been incarcerated for these crimes, and other evidence showed he
made incriminating statements to a fellow inmate about his desire to kill the victim. The
record supports the court’s conclusion that the evidence had high probative value of
showing motive, intent, premeditation, and identity, and the probative value of the
evidence outweighed the danger of unfair prejudice. The court followed the prerequisites
for admission under Rule 404(b), and we conclude that the court did not abuse its
discretion in admitting this evidence.

- 22 -
 Similarly, the record supports the trial court’s admission of the evidence of the
Defendant’s prior escape attempts, including testimony that two shanks were found in his
jail cell. “[E]vidence that an accused has escaped from custody, or attempted to escape
from custody, after being charged with a criminal offense is admissible for the purpose of
establishing the accused’s guilt, consciousness of guilt, or knowledge of guilt.” State v.
Burton, 751 S.W.2d 440, 450 (Tenn. 1988). The evidence of the shanks corroborated
details of the Defendant’s escape plan that he intended to take a guard hostage and to kill
a guard if necessary. The court instructed the jury that it was only to consider this
evidence to determine the Defendant’s consciousness of guilt. The court did not abuse its
discretion in finding that the probative value of this evidence outweighed the danger of
unfair prejudice. The Defendant is denied relief on this issue.

VI. William Baldwin’s Testimony

The Defendant asserts that the trial court erred in prohibiting William Baldwin
from testifying about a statement made by an MPD detective. The Defendant argues that
exclusion of this evidence violated Tennessee Rules of Evidence 401 and 402. He also
asserts that the MPD lost a video recording made by Mr. Baldwin, which violated Brady
v. Maryland, 373 U.S. 83 (1963). The State asserts that the court did not err because the
proffered testimony was hearsay from an unknown police officer and was irrelevant. The
State further responds that the Brady issue has been waived because it was not raised in
the motion for new trial.

William Baldwin was an evidence technician for the Johnson County, Indiana
Sheriff’s Department. Before Mr. Baldwin testified at the trial, the Defendant sought
permission to question Mr. Baldwin outside the presence of the jury regarding a
statement he overheard when he processed the car. According to the Defendant, Mr.
Baldwin overheard an MPD detective say, “Well, it looks like the n----r did it.” The
State opposed admission of the statement, arguing that Mr. Baldwin could not identify
the person who allegedly made the statement and that it was inadmissible hearsay. The
Defendant admitted that there was never an African-American suspect and that the
evidence would not be offered to prove that an African-American committed the crime.
However, he argued that the evidence was exculpatory. The Defendant surmised that if
he could prove Detective Shemwell made the statement, the statement was relevant to
Detective Shemwell’s credibility. The trial court ruled that the evidence was irrelevant
and inadmissible. The court further expressed skepticism that Mr. Baldwin heard what
he thought he heard, noting that “Rimmer did it” sounded very similar and made more
sense in context.

Evidence is relevant and generally admissible when it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action more
- 23 -
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401,
402. Questions regarding the admissibility and relevancy of evidence generally lie within
the discretion of the trial court, and the appellate courts will not “interfere with the
exercise of that discretion unless a clear abuse appears on the face of the record.” State v.
Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)).

A trial court abuses its discretion when it applies an incorrect legal standard or
reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). Relevant evidence,
however, “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.

We conclude that the trial court did not abuse its discretion by determining that the
proffered evidence was not relevant. The Defendant admitted there was never an
African-American suspect. The Defendant is not entitled to relief on this basis.

The Defendant also argues that the exclusion of this evidence “violated the Fifth
Amendment to the United States Constitution.” This general contention is the extent of
his argument. Although the Defendant raised the issue in his motion for a new trial, he
did not contemporaneously object at the trial. See Adkisson, 899 S.W.2d at 634; Tenn.
Ct. Crim. App. R 10(b); Tenn. R. Evid. 103(a), (b). In any event, we will review the
issue for plain error.

“An evidentiary ruling ordinarily does not rise to the level of a constitutional
violation.” State v. Powers, 101 S.W. 3d 383, 397 (Tenn. 2003) (citing Crane v.
Kentucky, 476 U.S. 683, 689 (1986)). To determine whether the exclusion of evidence
rises to the level of a constitutional violation, courts consider the following: (1) whether
the evidence is critical to the defense, (2) whether it bears sufficient indicia of reliability,
and (3) whether the interest supporting exclusion is substantially important. State v.
Brown, 29 S.W. 3d 427, 433-34 (Tenn. 2000).

The excluded evidence in this case was not critical to the defense because the
Defendant conceded that there was never an African-American suspect. A substantial
right of the Defendant was not adversely affected. See Smith, 24 S.W.3d at 282. The
Defendant is not entitled to relief on this issue.

Finally, the Defendant alleges that law enforcement’s failure to preserve the
videotape and to provide it to the defense violated Brady. The Defendant did not raise
- 24 -
this issue at the trial or include the issue in his motion for new trial and his appellate
argument is limited to one sentence. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim.
App. R 10(b). Our review is limited to plain error.

Mr. Baldwin testified that he videotaped his inventory of the car and that the
recording contained audio. The recording allegedly captured the statement, “[T]he n----r
did it.” Mr. Baldwin testified that he thought he provided the recording to the MPD but
that he was not sure. Mr. Baldwin explained that the recording was not listed on the
computer inventory list of all the items turned over to the MPD. He thought that he gave
“everything” to the MPD and said that he had no reason to retain the recording.
However, he had no record of providing it to MPD.

The defense argued that Mr. Baldwin’s testimony supported its theory that the
MPD intentionally destroyed the recording because the recording pointed to someone
other than the Defendant as a suspect and that the MPD, and Detective Shemwell in
particular, had “tunnel vision” in investigating the Defendant.

The trial court found that no evidence supported the Defendant’s theory that
Detective Shemwell intentionally destroyed the recording. The court noted that the
detective had no reason to destroy the recording to cover up the possible identity of an
African American suspect because there was no indication that an African-American
suspect existed. The court concluded that the “whole thing is just an absolute nonissue.”
However, the court allowed the defense to ask Mr. Baldwin whether a videotape was
made, whether he remembered giving it to MPD, and whether it was available at the time
of trial.

The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).
As a result, the State has a constitutional duty to furnish a defendant with exculpatory
evidence pertaining to his guilt or lack thereof or to the potential punishment faced by a
defendant. See Brady, 373 U.S. at 87.

In order to show a due process violation pursuant to Brady, the defendant must
prove by a preponderance of the evidence that (1) he requested the information, unless it
is obviously exculpatory, (2) the State must have suppressed the information, (3) the
information must be favorable to the accused, and (4) the information must be material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Favorable evidence includes that
which “challenges the credibility of a key prosecution witness.” Johnson, 38 S.W.3d at
56-57 (internal quotation marks and citation omitted). Evidence is material when “‘there
is a reasonable probability that, had the evidence been disclosed to the defense, the result
- 25 -
of the proceeding would have been different.’” Id. at 58 (quoting Edgin, 902 S.W.2d at
390).

The Defendant has not shown that a clear and unequivocal rule of law was
breached because the evidence does not show that the recording was material. A
recording of one of the investigating detectives stating “the n----r did it” would not have
cast doubt on the Defendant’s identity as the perpetrator. Although the recording would
have established that a detective engaged in unprofessional conduct, there is no
reasonable probability that the jury would have acquitted the Defendant based upon the
comment. The Defendant is not entitled to relief on this issue.

VII. Drawing of the Honda Backseat

The Defendant alleges that the trial court erred when it allowed into evidence a
drawing of the backseat of the car. According to the Defendant, the drawing did “not
reflect the true condition of the backseat” and was admitted in violation of Tennessee
Rule of Evidence 403. The State disagrees, claiming that the court’s determination that
the drawing would assist the jury was reasonable.

Tennessee Rule of Evidence 403 states that, “although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” The decision to
admit evidence will be reversed “only when the court applied an incorrect legal standard,
or reached a decision which is against logic or reasoning” and the admission of the
evidence “caused an injustice to the party complaining.” State v. Gilliland, 22 S.W.3d
266, 270 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 249 (Tenn. 1999)).

TBI agent and forensic serologist Samera Zavaro testified that she processed the
car for blood evidence. When she located a reddish-brown stain, she conducted a
presumptive blood field test. If the surface was fabric and resulted in a positive
presumptive test, she took cuttings of the stained area and later conducted tests of the
cuttings to determine whether they contained human blood. If the stain was found on a
hard surface, she swabbed the surface and performed a second test using the swab. She
identified photographs of the car, including the backseat. She testified that because the
interior fabric was also a reddish-brown color, it was difficult to discern stains from the
photographs alone. However, she said that it was easier to see the stains when personally
viewing the evidence. Accordingly, she made several drawings of the car in which she
depicted the areas where stains were found, including the backseat.

- 26 -
 When the State attempted to introduce the backseat drawing, the Defendant
objected on the basis that the drawing was not the best evidence and was not accurate.
He claimed that the drawing depicted more blood than the photographs. The trial court
overruled the objection, pointing to Agent Zavaro’s testimony that the stains were
difficult to see in the photographs alone. The court found that the drawing would assist
the jury’s understanding and admitted the evidence. The court noted that the accuracy of
the drawing could be challenged on cross-examination.

Although the Defendant does not elaborate in his brief about how admission of the
evidence violated Rule of Evidence 403, his objection at the trial was based on the danger
of misleading the jury. The trial court admitted the evidence based upon a finding that
the drawing would assist the jury in understanding where in the backseat the blood was
located. The Defendant did not ask Agent Zavaro questions challenging the accuracy of
the drawing. The court did not abuse its discretion in admitting the evidence, and the
Defendant is not entitled to relief on this basis.

The Defendant also asserts that admission of the backseat drawing violated the
Fifth Amendment of the United States Constitution. He did not object on this basis at the
trial and did not adequately address the issue in his appellate brief. See Adkisson, 899
S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). As such, our review is limited to plain
error.

An evidentiary ruling rarely rises to the level of a constitutional violation. See
Powers, 101 S.W.3d at 397. Furthermore, we have already determined that admission of
the backset drawing was proper under the Rules of Evidence. We conclude that the
Defendant’s allegation of constitutional error is without merit, and he has not established
that admission was plain error. See, e.g., State v. Dustin Dwayne Davis, No. 03C01-
9712-CR-00543, 1999 WL 135054, at *5 (Tenn. Crim. App. Mar. 15, 1999); State v.
Allan Brooks, No. 01C01-9510-CC-00324, 1998 WL 754315, at *11 (Tenn. Crim. App.
Oct. 29, 1998). He is not entitled to relief on this issue.

VIII. Admission of James Allard’s Previous Testimony

The Defendant contends that the trial court erred in finding James Allard was
unavailable and in allowing the State to present Mr. Allard’s testimony through a
transcript of the previous trial. He asserts that the State’s efforts to locate Mr. Allard
were “wholly insufficient” and that the prior testimony should have been excluded. The
State responds that its efforts to locate Mr. Allard were reasonable and that the court did
not err in declaring Mr. Allard unavailable and in admitting his previous testimony.

- 27 -
 TBI Agent Charles Baker testified that he attempted to locate Mr. Allard through
law enforcement databases as well as Google searches. He consulted “CLEAR,” which
searched real estate records, criminal information, and both criminal and civil records.
He also searched the State of Tennessee Justice Portal, which contained driver’s license
information, vehicle information, criminal histories, and Tennessee Department of
Correction information. He further searched the National Crime Information Center
(NCIC) which he characterized as a national search through the FBI. Finally, he searched
death records. He found a potential phone number but, after calling the number,
determined it was a “dead end.”

On cross-examination, Agent Baker said that he did not attempt to contact Mr.
Allard’s family because he did not have information about any family members. Agent
Baker admitted that he was not aware Mr. Allard had been previously incarcerated in
Indiana and said that he did not search for him through the Indiana Department of
Correction.

The Defendant argued that the State’s efforts were insufficient. He asserted that
Mr. Allard had a long criminal history and that if the right methods had been utilized, the
State should have been able to identify his family members and gain more information
about his whereabouts. The trial court found that the State’s efforts were reasonable.
The court stated that it did not “know how else [the State] can go about finding a witness,
if they don’t know who the family members are, other than Google searches and database
searches.” The court noted that Mr. Allard’s imprisonment in Indiana nearly twenty
years ago did not mean he was still in the state. The court found that the State was not
required to send an investigator to every state in search of a witness.

The Constitution of the United States provides the accused in a criminal
prosecution the right “to be confronted with witnesses.” U.S. Const. amend. VI. The
Tennessee Constitution similarly provides the right “to meet witnesses face to face.”
Tenn. Const. art. I, § 9. However, the right of confrontation is not absolute and must
occasionally give way to considerations of public policy and necessities of the case.
State v. Kennedy, 7 S.W.3d 58, 65 (Tenn. Crim. App. 1999) (citing Jenkins v. State, 627
N.E.2d 789, 793 (Ind. 1993)). Thus, the United States Supreme Court has refused to
apply a literal interpretation of the Confrontation Clause which would bar the use of any
hearsay. Idaho v. Wright, 497 U.S. 805, 814 (1990).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court
announced the test to determine admissibility under the Confrontation Clause of hearsay
offered against an accused. Testimonial statements may not be offered into evidence
unless two requirements are satisfied: (1) the declarant/witness must be unavailable and
(2) the defendant must have had a prior opportunity to cross-examine the
- 28 -
declarant/witness. Id. at 68. “Where testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.” Id. at 68-69.

Mr. Allard’s previous testimony was testimonial; thus, the pertinent consideration
is whether the State proved that the witness was unavailable. To accomplish this, “the
State must prove that it made a good faith effort to secure the presence of the witness in
question.” State v. Sharp, 327 S.W.3d 704, 712 (Tenn. Crim. App. 2010). “The ultimate
question is whether the witness is unavailable despite good-faith efforts undertaken prior
to trial to locate and present that witness. As with other evidentiary proponents, the
prosecution bears the burden of establishing this predicate.” Crawford, 541 U.S. at 74-
75. Good faith refers to the extent to which the State must attempt to produce the witness
and is a question of reasonableness. Sharp, 327 S.W.3d at 712 (citing Ohio v. Roberts,
448 U.S. 56, 74 (1980)). The trial court’s decision will be affirmed absent an abuse of
discretion. Hicks v. State, 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972).

Our supreme court considered what constitutes a good faith effort in State v.
Armes, 607 S.W.2d 234 (Tenn. 1980). In Armes, the State attempted to subpoena the
witness before trial and discovered that the witness had disappeared. Id. at 236. This
disappearance resulted in a mistrial. Id. One week before the second trial and again one
day before the second trial, the State attempted to subpoena the witness, but the State was
unable to locate the witness. Id. At the trial the State attempted to present the witness’s
preliminary hearing testimony. Id. The State failed to provide any independent evidence
of an attempt to locate the witness to prove the witness’s unavailability other than a
statement by the prosecutor. The supreme court held that “[t]he prosecuting attorney’s
statement to the Court concerning the efforts of the State’s investigator to locate the
witness cannot be considered as evidence of proof on the issue of the State’s good faith
effort.” Id. at 237. Our supreme court also determined that the State was on notice that
extra effort would be required to locate the witness because he did not appear for the first
trial date. Id.

Unlike Armes, the State in the present case produced independent evidence of its
efforts to locate Mr. Allard. Nearly twenty years had passed between the first trial and
the State’s attempts to locate Mr. Allard before the second trial. Agent Baker attempted
to locate the witness using numerous search tools, including the NCIC database, which he
explained was a national search through the FBI. Agent Baker developed one
unsuccessful lead through a telephone number. The agent said he did not have
information about Mr. Allard’s family members and was unable to contact them to gain
more information. This evidence supports the trial court’s determination that the State
made good-faith, although ultimately unsuccessful, efforts to locate the witness.

- 29 -
 Given the passage of time and the independent evidence produced by the State, we
conclude that the trial court did not abuse its discretion in determining Mr. Allard was
unavailable. The Defendant is not entitled to relief on this issue.

IX. Rhonda Ball Johnson’s Testimony

The Defendant argues that the trial court erred in allowing Rhonda Ball Johnson to testify
about conversations she had with William Conaley, alleging that it was inadmissible
hearsay. He asserts that her testimony violated Tennessee Rules of Evidence 801 and
802. The State contends that the testimony was proper as prior consistent statements
used to rehabilitate Mr. Conaley’s credibility.

Mr. Conaley was incarcerated with the Defendant at Northwest Correctional
Center in 1993. He testified that the Defendant expressed his discontent that the victim
had put him in prison. The Defendant told Mr. Conaley that the victim’s son, Chris
Ellsworth, was going to receive money from a lawsuit and that the Defendant felt entitled
to some of the money.

Mr. Conaley said that prior to his leaving on furlough, the Defendant asked him to
relay a message to the victim. The Defendant wanted the victim to know that he
expected to receive some of the money from the lawsuit and that if he did not get it, he
would kill her. Mr. Conaley said that he relayed the threat to Ms. Johnson. However,
Mr. Conaley did not report the threat to the authorities, and he was released on parole
shortly thereafter.

In January 1996, Mr. Conaley returned to custody. In February 1997, Mr. Conaley
read about the victim’s disappearance in a newspaper and told family members about the
Defendant’s prior statements, but Mr. Conaley did not contact law enforcement.
However, he said that approximately one week later, an MPD officer visited him in
prison. He told the police about the Defendant’s threatening the victim.

On cross-examination, Mr. Conaley admitted that when the Defendant made the
statements in 1993, Mr. Conaley had already been granted parole and was awaiting
release. However, he admitted that when he spoke with law enforcement in 1997, the
information might have gained him an earlier release. Nevertheless, he denied contacting
law enforcement, and he said that it was Ms. Johnson who told the police about the
Defendant’s threat after the victim disappeared. Mr. Conaley requested that he be
transferred to the “annex” to finish his sentence, which he admitted was “easy time” in
the prison system. He said that after talking to the police about the Defendant, he was
moved to the annex.

- 30 -
 Ms. Johnson testified that she was the victim’s niece. She was also childhood
friends with Mr. Conaley. She confirmed that in 1993, Mr. Conaley told her about the
Defendant’s threat against the victim.

Generally, out-of-court statements offered to prove the truth of the matter asserted
are inadmissible evidence. See Tenn. R. Evid. 801, 802. However, when a defendant
attack’s a witness’s credibility, the State may rehabilitate the witness by offering
evidence of a prior consistent statement. State v. Benton, 759 S.W.2d 427, 433 (Tenn.
Crim. App. 1988). Admission of prior consistent statements is authorized in two
circumstances: (1) where the statement is offered to rebut the implication that the
witness’s testimony was a recent fabrication; and (2) when deliberate falsehood has been
implied. Id. Prior consistent statements are not ordinarily admissible for the sole purpose
of bolstering a witness’s credibility. State v. Braggs, 604 S.W.2d 833, 885 (Tenn. Crim.
App. 1980).

During Mr. Conaley’s cross-examination, the defense implied that Mr. Conaley
fabricated the Defendant’s statement in 1997 because he faced years in prison and wanted
to secure favorable treatment and early release. Thereafter, the State called Ms. Johnson,
who testified that Mr. Conaley relayed the Defendant’s threat to her in 1993, when Mr.
Conaley had already been granted parole and had no motivation to lie in order to cut a
deal with police. That testimony was properly admitted to rebut the Defendant’s
implication of recent fabrication, and this issue is without merit.

The Defendant also contends that admission of this evidence “was in violation of
the Fifth Amendment of the United States Constitution.” The Defendant did not object
on this basis at the trial and did not elaborate in his appellate brief as to how admission
violated his constitutional rights. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App.
R 10(b). Accordingly, our review is limited to plain error.

Because we have already determined that admission of Ms. Johnson’s statement
was proper under the Rules of Evidence, we conclude that the evidence was not admitted
in violation of the Defendant’s constitutional rights and that the Defendant has not
established plain error. He is not entitled to relief on this basis.

X. Chris Ellsworth’s Testimony

The Defendant asserts that allowing Chris Ellsworth, the victim’s son, to show the jury
his scars violated Tennessee Rules of Evidence 401, 402, and 403. The State responds
that the court acted within its discretion to allow the evidence, which demonstrated the
victim was unlikely to abandon her son, who had been badly burned, and rebutted the

- 31 -
defense’s implication that the victim was not deceased. According to the State, the
victim had provided extensive care to Mr. Ellsworth and would not have suddenly left.

At the trial, Mr. Ellsworth testified that he had been badly burned over 70% of his
body in a water heater explosion and that he required extensive follow-up medical care.
His mother was devoted to his care and frequently took him to LeBonheur Hospital as
well as Shriners Hospital in Galveston, Texas, for treatment. She also worked with him
daily on physical therapy for years after the accident. The State asked Mr. Ellsworth to
show his scars to the jury. After the defense objected, the prosecutor explained that it
wanted to show that the victim “was not the type of person that would have walked off
without saying anything and leaving her children.” The trial court agreed that the
evidence was relevant, pointing out that the defense had said in its opening statement that
the victim might not be deceased. The court agreed that the evidence did not have “a lot
of probative value” under Rule 403 but that there was minimal danger of unfair prejudice.
Thereafter, Mr. Ellsworth displayed the scars on his forearms to the jury.

Evidence is relevant and generally admissible when it has “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,
402. Relevant evidence, however, “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Tenn. R. Evid. 403.

The evidence was minimally relevant to support Mr. Ellsworth’s testimony about
the severity of his injuries and to combat the defense’s argument that the victim might
still be alive. The scars were a visual representation of the injuries described in the
witness’s testimony, and no evidence showed that the Defendant had any involvement in
Mr. Ellsworth’s injury. Despite the minimal relevance of the evidence, the Defendant has
not articulated any prejudice he suffered based on the evidence’s admission. The trial
court found that the probative value was not substantially outweighed by the danger of
unfair prejudice, and the record supports its determination. The court did not abuse its
discretion in allowing the jury to view the scars.

The Defendant asserts, in a cursory fashion, that admission of this evidence “was
clearly done in violation of the Fifth Amendment of the United States Constitution,” an
assertion that he did not raise at trial. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim.
App. R 10(b). We review this issue for plain error.

The Defendant has not established that admission of the evidence was prejudicial
or improper. Likewise, we have considered his allegation of a constitutional error that
- 32 -
violated his due process rights and have determined that it is without merit. The
Defendant is not entitled to relief on this basis.

XI. Tim Helldorfer’s Testimony Regarding William Conaley and James Allard

The Defendant alleges that the trial court erred in allowing Sergeant Tim
Helldorfer to testify regarding statements made by Mr. Conaley and Mr. Allard, in
violation of Rules of Evidence 801 and 802. The State contends that the testimony was
prior consistent statements used to rebut implications on cross-examination about the
Defendant’s threat and confessions.

Sergeant Helldorfer testified that he interviewed Mr. Conaley in prison and that he
obtained a statement from Mr. Allard in Johnson County, Indiana in 1997. Sergeant
Helldorfer stated that Mr. Allard’s previous testimony was consistent with the 1997
statement.

The Defendant objected, arguing that the statements were hearsay and were prior
consistent statements. He contended that admitting the statements because a witness’s
credibility had been generally impeached was not the proper use of a prior consistent
statement. The State asserted that the witness’s credibility became an issue on cross-
examination and that it was proper to show they had “previously made these statements”
to different individuals. The Defendant argued that Mr. Conaley’s 1997 statement was
fabricated and that the State could not provide a statement he made to someone else as
proof that it was not a fabrication.

The trial court stated that “the jury has a right to hear that [Mr. Allard and Mr.
Conaley] gave consistent statements to . . . the police . . . .” It explained that the
statements were being offered to bolster the witness’s credibility. The court provided the
following example to explain his ruling:

If someone sees something, let’s say they see someone run a light.
And then they testify that they saw the person run the light.

And the other side says, he didn’t run the light, did he?

Yes he did.

And then [the witness] tells ten other people later on that he ran the
light. I think the other side -- the first side has a right to put on the
witnesses because he made that statement that he ran the light to many,

- 33 -
 many people over and over. To show his credibility on the stand, the
credibility of his testimony.

It’s not being offered as substantive evidence. It’s being offered to
show his credibility, that he made that statement to several people.

The court allowed the officer to testify that Mr. Conaley’s statements to police and at the
trial were consistent. The court determined that the State could show Sergeant Helldorfer
the transcript of Mr. Allard’s trial testimony and ask whether it was consistent with Mr.
Allard’s statement to police. However, the contents of the transcript could not be
admitted.

Out-of-court statements offered to prove the truth of the matter asserted are
inadmissible at trial. See Tenn. R. Evid. 801, 802. However, when a defendant attacks a
witness’s credibility, the State may rehabilitate the witness by offering evidence of a prior
consistent statement. Benton, 759 S.W.2d at 433. Admission of a prior consistent
statement is authorized in two circumstances: (1) where the statement is offered to rebut
the implication that the witness’s testimony was a recent fabrication; and (2) when
deliberate falsehood has been implied. Id. A prior consistent statement is not ordinarily
admissible for the sole purpose of bolstering a witness’s credibility. Braggs, 604 S.W.2d
at 885.

Here, the trial court’s comments reflect that the prior consistent statements were
allowed merely to bolster the witness’s credibility. The statements admitted through
Sergeant Helldorfer were not made “before any improper influence or motive to lie
existed.” State v. Herron, 461 S.W.3d 890, 905 (Tenn. 2015) (citing Sutton v. State, 291
S.W. 1069, 1070 (Tenn. 1927)). The defense’s cross-examination of these witnesses
implied that the statements about the Defendant’s threat were fabricated in an effort to
gain favorable treatment from the State. The statements to the police were not made
before the purported motive to fabricate existed. Therefore, they were not prior
consistent statements, and the court erred in admitting the statements.

Recognizing that all errors are not equal, our supreme court has established three
categories of error—structural constitutional error, non-structural constitutional error, and
non-constitutional error. Powers, 101 S.W.3d at 397; State v. Garrison, 40 S.W.3d 426,
433-34 (Tenn. 2000); State v. Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999). The
distinctions between these categories dictate the standards to be applied when
determining whether a particular error is harmless. State v. Rodriguez, 254 S.W.3d 361,
371 (Tenn. 2008). A trial court’s error in admitting evidence under the Tennessee Rules
of Evidence falls into the category of non-constitutional error, and harmless error analysis
under Tennessee Rule of Appellate Procedure 36(b) is appropriate. See State v. Clark,
- 34 -
452 S.W.3d 268, 287 (Tenn. 2014); see also State v. James, 81 S.W.3d 751, 763 (Tenn.
2002) (noting that “[h]armless error analysis applies to virtually all evidentiary errors
other than judicial bias and denial of counsel”). Pursuant to Rule 36(b), the defendant
bears the burden of showing that a non-constitutional error “more probably than not
affected the judgment or would result in prejudice to the judicial process.” T.R.A.P.
36(b); Rodriguez, 254 S.W.3d at 372.

The Defendant has not carried his burden in showing that he was prejudiced by
admission of this evidence. Indeed, he has not offered any argument related to the
prejudicial effect of this error. After considering the entirety of the evidence presented at
the, we conclude that the error was harmless. The defense was able to cross-examine Mr.
Conaley and Mr. Allard about their motivations to lie in exchange for more favorable
treatment. The substance of the testimony was already in evidence, and the jury was
instructed not to consider the consistent statements as substantive evidence. Further,
overwhelming circumstantial evidence established the Defendant’s guilt, including his
previous relationship with the victim and motive for harming her, his threats to kill the
victim, his confession to his cellmate, his possession of a car matching a description of
the car seen at the motel, the presence in the car of blood and DNA matching the
victim’s, and his actions in the days following the victim’s disappearance. Accordingly,
the error was harmless, and the Defendant is not entitled to relief on this basis.

The Defendant also maintains that admission of this evidence violated the Fifth
Amendment of the United States Constitution. He did not object on this basis at the trial
and does not elaborate in his appellate brief as to how the Fifth Amendment was violated.
See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). Our review is limited to
plain error, and we conclude that the Defendant has not shown that the admission of this
evidence affected a substantial right. The substantial right inquiry under the plain error
doctrine mirrors the harmless error analysis under Rule 36(b). See Maddin, 192 S.W.3d
at 562. Upon consideration, we conclude, as well, that admission of the evidence did not
violate the Defendant’s due process rights under the Fifth Amendment.

XII. Trial Court’s Limitation of Sergeant Helldorfer’s Testimony

The Defendant contends that the trial court erred in limiting the defense’s questioning of
Sergeant Helldorfer. He argues that the defense should have been allowed to ask during
cross-examination whether Billy Wayne Voyles had been positively identified. The
Defendant further asserts that Sergeant Helldorfer should have been allowed to testify
about a document relating to the release of the maroon Honda. The State responds that
the defense agreed to the limitation on testimony about the positive identification and
cannot now claim error. Further, the State asserts that the document was inadmissible
because it could not be authenticated by the witness.
- 35 -
A. Positive Identification

During its examination of Sergeant Helldorfer, the defense asked whether he was
“aware that there was a positive identification made, that Billy Voyles was positively
identified in the case.” The prosecution objected to the question, arguing it was hearsay.
The court overruled the objection because it was admissible as a prior identification but
stated that there was a question as to whether a witness made a “positive” identification.
Defense counsel then said, “I will take the word positive out if that is the problem.” The
court additionally noted that the Defendant needed to establish that the questioning was
related to Mr. Darnell’s identification of Mr. Voyles. The defense again agreed and
asked Sergeant Helldorfer whether “Mr. Darnell had identified Billy Wayne Voyles as an
eye witness as being on the scene at the time during [the] investigation.” Sergeant
Helldorfer answered affirmatively.

Tennessee Rule of Appellate Procedure 36(a) provides that “[n]othing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.” The Defendant agreed to take the word positive out of the question
posed to Sergeant Helldorfer, and he cannot now claim error on that basis. In any event,
the Defendant has not explained how he was prejudiced by this limitation. Sergeant
Helldorfer testified that Mr. Darnell identified Mr. Voyles as one of the men he saw in
the motel office, and Mr. Darnell testified that he identified Mr. Voyles. The Defendant
is not entitled to relief on this basis.

The Defendant also alleges that this limitation violated his Fifth Amendment
rights under the United States Constitution. The Defendant did not raise this issue at the
trial and does not provide any meaningful argument regarding this issue in his brief. See
Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We review the issue for
plain error and conclude that the Defendant has not proven this limitation amounted to a
due process violation or that a substantial right was adversely affected. The defense
sought to elicit testimony that Mr. Darnell identified Mr. Voyles as one of the men at the
motel. The court did not allow the defense to use the word “positive” when pursuing this
line of questioning because Mr. Darnell had not used the word when he testified about the
identification. The Defendant agreed to remove the word “positive” from his question.
Deleting the word from the question did not meaningfully change the witness’s testimony
and had no effect on the outcome of the trial. The Defendant is not entitled to relief on
this basis.

- 36 -
B. Towing Slip

During cross-examination, the defense showed Sergeant Helldorfer three
documents, one of which was a towing slip for the Honda. When asked whether he
recognized them, he replied that he only recognized the towing slip. The Defendant
questioned Sergeant Helldorfer about the two unidentified documents. The State
objected, arguing that the witness had not authenticated the documents. In response, the
defense asserted that the three documents were received together in discovery and that
Sergeant Helldorfer’s signature appeared on the towing slip. The defense asserted that
one of the unidentified documents appeared to be the back of the towing slip, which had
been authenticated by Sergeant Helldorfer. The defense explained that it was attempting
to establish when the car was released and to whom, information that was reflected on
one of the documents. However, Sergeant Helldorfer testified that the writing on the
purported back of the towing slip was not his. He explained that he only wrote on the
front of the towing slip and could not verify the information contained on the back. The
trial court informed the Defendant that the witness had to authenticate the document
purported to be the back of the towing slip before it could be admitted into evidence.
Thereafter, the officer testified that his signature was on the towing slip, which reflected
that the car was released on March 25. However, he did not have personal knowledge of
where the car was taken after it was released. Because he could not identify the
purported back of the towing slip, that document was not admitted into evidence.

Before a document is admitted into evidence, the party seeking admission
generally must authenticate the document. State v. Troutman, 327 S.W.3d 717, 722
(Tenn. Crim. App. 2008); See Tenn. R. Evid. 901(a). Sergeant Helldorfer testified that
he recognized the towing slip. However, he was unable to identify the document that the
defense claimed was the back of the towing slip. The trial court did not abuse its
discretion in refusing to admit the unauthenticated document, and this issue is without
merit.

The Defendant again asserts a Fifth Amendment challenge to this issue, which was
not a basis for objection at trial and is not adequately argued in his brief. See Adkisson,
899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We review the issue for plain error
and conclude that the Defendant has not established that the trial court’s decision violated
a clear and unequivocal rule of law. Because there was no error in the court’s decision to
exclude this evidence based on a lack of authentication, the allegation of a constitutional
error is without merit. The Defendant is not entitled to relief on this basis.

- 37 -
 XII. Joyce Carmichael’s Testimony

Joyce Carmichael is the official records officer for the Tennessee Department of
Correction. Ms. Carmichael testified that Tommy Voyles and the Defendant were both
incarcerated at Lake County Regional Correctional Facility during a five-month period in
1992. Later in the trial, another witness testified that Tommy and Billy Voyles were
related and that the witness had seen them together, although the witness did not specify
how they were related. Before her testimony, the defense objected to the relevance of
evidence that Tommy Voyles had been incarcerated with the Defendant previously. The
prosecutor argued that there was more than one person involved in the victim’s
disappearance and that Tommy Voyles might have been involved. Thus, the State
wanted to show the connection between the Defendant and Tommy Voyles. The defense
pointed out that the only testimony regarding Tommy Voyles was that he had been
previously married to the victim. The State further explained that “there appear to be
multiple people involved in this” and that one of the individuals involved was identified
by a witness as Billy Voyles. Thus, argued the State, “the fact that [the Defendant] has a
close connection with a Tommy Voyles would be relevant.” The trial court admitted the
testimony, noting that it was “not extremely probative but there’s absolutely no unfair
prejudice.”

The evidence does not support the trial court’s determination that evidence
attempting to connect the Defendant with Tommy Voyles was relevant. The evidence
was too remote to be relevant to a material issue in the case. Tenn. R. Evid. 401 and 402.
There was testimony that Tommy Voyles and the Defendant had been incarcerated in the
same facility but not that they knew each other, were housed together, or interacted in
any capacity during that time. Even if a “close connection” between the Tommy Voyles
and the Defendant were proved, that connection does not result in a conclusion that a
connection existed between the Defendant and Billy Voyles. The court’s admission of
this irrelevant evidence was error, but we conclude that the error was harmless based
upon the overwhelming circumstantial evidence of the Defendant’s guilt. See Tenn. R.
App. P. 36(b). The Defendant is not entitled to relief on this basis.

XIV. Prior Testimony of Unavailable Witnesses

The Defendant contends that the trial court erred in allowing previous testimony
from witnesses, along with related exhibits, who were unavailable at the second trial. He
alleges that the admission of this testimony was unfair because the witnesses were
questioned by his previous counsel, who were found to be constitutionally ineffective.
The State responds that each of the unavailable witnesses was subject to cross-
examination and that counsel from the Defendant’s first trial were not ineffective in
questioning witnesses.
- 38 -
 Pursuant to Tennessee Rule of Evidence 804(b), the former testimony of a
declarant who is currently unavailable to testify is admissible. “Former testimony” is
“[t]estimony given as a witness at another hearing of the same or a different proceeding .
. ., if the party against whom the testimony is now offered had both an opportunity and a
similar motive to develop the testimony by direct, cross, or redirect examination.” Tenn.
R. Evid. 804(b)(1). The similar motive requirement is met when the issues in the present
case are “sufficiently similar” to the issues in the case in which the prior testimony was
given. See State v. Howell, 868 S.W.2d 238, 252 (Tenn. 1993). The Constitution of the
United States provides the accused in a criminal prosecution the right “to be confronted
with witnesses.” U.S. Const. amend. VI.; see also Tenn. Const. art. I, § 9. However, “the
Confrontation Clause only guarantees ‘an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.’” Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987) (quoting
Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Our courts have upheld the admission
of prior testimony given at a preliminary hearing, see State v. Bowman, 327 S.W.3d 69,
88-89 (Tenn. Crim. App. 2009), and in another state, see Howell, 868 S.W.2d at 252.

The prior testimony of eight witnesses was read into evidence at the Defendant’s
trial. With the exception of one witness, the prior testimony was from either the
Defendant’s preliminary hearing or his first trial. The exception was the testimony of
Dixie Presley, who testified at the previous trial and at the Defendant’s post-conviction
evidentiary hearing. The post-conviction court determined that trial counsel were
ineffective for failing to cross-examine Ms. Presley about the two men she saw at the
motel on the night of the victim’s disappearance. However, she was specifically
questioned about this matter at the post-conviction hearing, and this testimony was read
into evidence at the Defendant’s second trial. Therefore, any failure to effectively cross-
examine Ms. Presley at the first trial was satisfied by her questioning at the post-
conviction hearing and the subsequent introduction of this evidence at the second trial.

The record reflects that the Defendant had an opportunity to, and in fact did, cross-
examine each witness. The Defendant had a similar motive to develop the testimony of
these witnesses during examination in the prior proceedings in which he was facing the
same charges. Other than the exception discussed above, the Defendant was granted
post-conviction relief on the basis that his counsel were ineffective in investigating the
case, not in examining witnesses. The Defendant has not cited any cases holding that
prior testimony is inadmissible when post-conviction relief is granted for a reason
unrelated to counsel’s examination of witnesses. Accordingly, he is not entitled to relief
on this basis.

- 39 -
 The Defendant also argues that admission of this prior testimony violated his Fifth
Amendment rights. He did not object on this basis at trial and does not elaborate on this
issue in his brief. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We
review the issue for plain error.

Because we have determined that admission of the prior testimony was proper, we
conclude that the Defendant has not shown that his due process rights were violated in
this respect. No clear and unequivocal rule of law was breached, and the Defendant is
not entitled to relief on this basis.

XV. Admission of Richard Rimmer’s Prior Inconsistent Statements

The Defendant alleges that the trial court should not have admitted Richard
Rimmer’s prior inconsistent statements and related exhibits as substantive evidence. The
State asserts that this evidence was properly admitted as a prior inconsistent statement
and as past recollection recorded.

At trial the Defendant’s brother, Richard Rimmer, testified that he could not recall
giving a statement to the police in 1997. The State showed Mr. Rimmer a copy of a
statement dated February 18, 1997, and although he recognized his signature on the
statement, he did not remember giving the statement. The prosecutor asked Mr. Rimmer
about each question and answer provided in the statement. In two instances, he denied
providing a particular answer, but he mostly stated that he had no memory of the
statement. He testified that he had suffered several head injuries, which impacted his
memory. The State also showed him drawings he allegedly made, but he denied making
the drawings.

The State sought to have the statement and drawings admitted as substantive
evidence under Tennessee Rule of Evidence 803(26). The trial court found that for the
statements Mr. Rimmer denied making, they were prior inconsistent statements under
Tennessee Rule of Evidence 613(b) and were admissible, if the court found they were
trustworthy, pursuant to Rule 803(26), providing a hearsay exception for prior
inconsistent statements. For the statements Mr. Rimmer did not remember making, the
court found that he was an unavailable witness pursuant to Rule of Evidence 804(a)(3),
and those questions and answers could be read to the jury. Both sides presented
testimony relevant to competency at the time the statement was given.

The defense called Mr. Rimmer’s mother, Sandra Rimmer, who testified that Mr.
Rimmer had received disability benefits since 1990 or 1991 due to a head injury that
caused brain damage. She stated that his daily activities were impacted and that he
“sometimes . . . thinks things are happening [that were] not happening.” Ms. Rimmer
- 40 -
admitted that in 1997, Mr. Rimmer was capable of living on his own, managed daily
activities without assistance, and worked to support himself. She also said he was
competent to enter into a lease agreement.

The State called Sergeant Helldorfer, who testified that he met with Mr. Rimmer
on February 13 and 18, 1997. His impression was that Mr. Rimmer fully understood the
questions asked and answered them appropriately. Sergeant Helldorfer said that he did
not ask leading questions and that Mr. Rimmer provided the details. The February 18
conversation was memorialized in a written statement. The officer also testified about
Mr. Rimmer’s drawings. One drawing depicted the location of the blood in the backseat,
and the other was a drawing of the shovel, of which the Defendant asked Mr. Rimmer to
dispose. Sergeant Helldorfer confirmed that the statement and drawings about which Mr.
Rimmer had been questioned were those obtained by Sergeant Helldorfer on February 18,
1997.

In assessing whether the evidence was trustworthy, the trial court noted the level
of detail contained in Mr. Rimmer’s answers. The court further found that the statement
appeared to come from a competent person and not from someone who was intellectually
disabled. The court determined that the statement was given under circumstances
indicating its trustworthiness.

The trial court determined that the statements Mr. Rimmer denied making were
admissible pursuant to Rule 803(26). The court further ruled that the drawings could be
admitted into evidence, as Mr. Rimmer had denied making them. However, as to the
statements for which Mr. Rimmer claimed a lack of memory, the court found those were
not inconsistent statements and could not be admitted under 803(26). Rather, the court
found that portions of the statement qualified as a past recollection recorded pursuant to
Rule 803(5). Thus, those portions could be read into evidence but not admitted as an
exhibit.

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). As a general rule, hearsay is not admissible during a
trial, unless the statement falls under one of the exceptions to the rule against hearsay.
Tenn. R. Evid. 802. However, many exceptions to the rule against hearsay exist.
Tennessee Rule of Evidence 803(26) provides that a prior inconsistent statement that is
otherwise admissible under Rule 613(b) is admissible as substantive evidence if the
following prerequisites are met:

(A) The declarant must testify at the trial or hearing and be subject to
cross-examination concerning the statement.
- 41 -
 (B) The statement must be an audio or video recorded statement, a
written statement signed by the witness, or a statement given under oath.

(C) The judge must conduct a hearing outside the presence of the
jury to determine by a preponderance of the evidence that the prior
statement was made under circumstances indicating trustworthiness.

This rule has been interpreted to apply when a testifying witness claims a lack of
memory. State v. Davis, 466 S.W.3d 49, 64 (Tenn. 2015).

Tennessee Rule of Evidence 613(b) permits the use of extrinsic evidence of prior
inconsistent statements for the purpose of impeachment. The Rule provides that
“[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible
unless and until the witness is afforded an opportunity to explain or deny the same and
the opposite party is afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require.”

Additionally, Rule 803(5) provides another exception to the hearsay rule, which is
commonly referred to as past recollection recorded. That rule deems admissible

[a] memorandum or record concerning a matter about which a witness once
had knowledge but now has insufficient recollection to enable the witness
to testify fully and accurately, shown to have been made or adopted by the
witness when the matter was fresh in the witness’s memory and to reflect
that knowledge correctly. If admitted, the memorandum or record may be
read into evidence but may not itself be received as an exhibit unless
offered by an adverse party.

The Defendant alleges that Mr. Rimmer’s prior statement should have been
considered by the jury for impeachment purposes only. However, Rule 803(26) provides
that an inconsistent statement may be admitted as substantive evidence when certain
conditions are satisfied. Mr. Rimmer testified at the trial that the statement was written
and signed by him, and the trial court conducted a jury-out hearing during which it
determined the statement was trustworthy. The court did not err by admitting the prior
statement pursuant to Rules 613(b) and 803(26). Additionally, the statement was
properly admitted as a recorded recollection under Rule 803(5). The statement was taken
shortly after the events in question, and Mr. Rimmer no longer remembered the
statement. Further, the court allowed the statement to be read into evidence but did not
admit it as an exhibit. Accordingly, Mr. Rimmer’s prior statement was admissible under
803(26) and 803(5), and the Defendant is not entitled to relief on this issue.
- 42 -
 The Defendant again asserts a general Fifth Amendment challenge to the
admission of this evidence, although he did not object on that basis at trial and does not
provide meaningful argument on the issue in his brief. See Adkisson, 899 S.W.2d at 634;
Tenn. Ct. Crim. App. R 10(b). Our review is limited to plain error. In that regard, we
conclude that the Defendant has not established that he is entitled to plain error relief.

XVI. Kenneth Falk’s Testimony

The Defendant argues that the trial court erred in prohibiting the testimony of
attorney Kenneth Falk regarding the success of a lawsuit concerning conditions at the
Johnson County Jail in Indiana. The State responds that the evidence was properly
excluded as it was irrelevant.

The Defendant offered the testimony of Mr. Falk to establish that the Defendant’s
escape attempts were related to the conditions at the jail and did not reflect a
consciousness of guilt. The State objected on relevancy grounds. The trial court allowed
the testimony to rebut the implication that his escapes were based on guilt. However, the
court prohibited Mr. Falk from testifying about any details the Defendant discussed with
him.

Mr. Falk testified that was legal director of the American Civil Liberties Union
(ACLU) of Indianapolis, Indiana. He said that in 1997, the Defendant contacted his
office concerning the conditions at the Johnson County Jail. His office filed a lawsuit
based on the Defendant’s complaints, although it was filed on behalf of other inmates
because the Defendant was no longer confined in the jail by the time the lawsuit was
filed. When the defense asked Mr. Falk whether the lawsuit was successful, the State
objected. The trial court sustained the objection, stating there was no need “to talk about
what happened in the lawsuit.”

The trial court did not abuse its discretion in limiting Mr. Falk’s testimony. The
defense’s stated purpose in offering the evidence was to provide a reason, other than
guilt, for the Defendant’s escape attempts. Mr. Falk established that the Defendant
complained about the conditions and that a lawsuit was filed as a result. The court did
not abuse its discretion in limiting the details of the lawsuit, including whether it was
successful. The Defendant is not entitled to relief on this basis.

The Defendant maintains that excluding this evidence violated the Fifth
Amendment of the United States Constitution. He did not object on this basis at trial and
does not elaborate on the issue in his brief. See Adkisson, 899 S.W.2d at 634; Tenn. Ct.
Crim. App. R 10(b). Thus, our review is limited to plain error.
- 43 -
 To determine whether the exclusion of this testimony to the level of a
constitutional violation, we consider the following: (1) whether the evidence is critical to
the defense, (2) whether it bears sufficient indicia of reliability, and (3) whether the
interest supporting exclusion is substantially important. See Brown, 29 S.W. 3d at 433-
34.

The Defendant has not proven that the evidence was critical to his defense, and
therefore, no substantial right was adversely affected. As noted above, the Defendant
was able to establish through Mr. Falk’s testimony that conditions at the jail led the
ACLU to file a lawsuit, which provided an alternative reason for the Defendant’s escape
attempt. We cannot conclude that additional testimony that the lawsuit was successful
would have changed the outcome of the trial. Accordingly, plain error relief is not
warranted.

XVII. Marilyn Miller’s Testimony

The Defendant asserts that the trial court erred in not allowing Marilyn Miller to
give an opinion on the length of time that the maroon Honda should have been kept by
law enforcement. He alleges that her testimony would have supported his request for a
Ferguson jury instruction. He claims that exclusion of this testimony violated Rules of
Evidence 401 and 402. The State contends that the exclusion was proper and argues that
the decision to provide a Ferguson instruction was a question of law for the court and that
Dr. Miller’s testimony would not have assisted the jury. The State further responds that
the proffered testimony was outside the scope of Dr. Miller’s expertise.

Dr. Miller testified that she was an associate professor of forensic science at
Virginia Commonwealth University. She had a bachelor’s degree in chemistry, a
master’s degree in forensic chemistry, and a doctorate in education. Before teaching, she
spent fourteen years working as a forensic scientist and a crime scene investigator for
three law enforcement agencies. Her duties included responding to and investigating
crime scenes and analyzing evidence in a laboratory. She had taught for twenty-two
years in the field of forensic science and crime scene investigation. The trial court
admitted Dr. Miller as an expert in crime scene investigation, crime scene reconstruction,
forensic science, and serology and blood spatter analysis.

The defense asked Dr. Miller whether she had an opinion regarding the length of
time the maroon Honda should have been retained by law enforcement. The State
objected, and the trial court sustained the objection. The court acknowledged that Dr.
Miller was a crime scene expert but found that it was improper for her to give an opinion
about the duty to preserve evidence as it related to Ferguson.
- 44 -
 The Defendant asserts that this limitation violated Rules of Evidence 401 and 402.
As previously discussed, Tennessee Rule of Evidence 401 defines “relevant evidence” as
“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.” Rule 402 provides, in part, that “[e]vidence which is not relevant is not
admissible.”

The Defendant contends that Dr. Miller’s testimony would have assisted the jury
in understanding “that the defense was not given ample opportunity to inspect and test the
maroon Honda.” However, we agree with the State that this matter was relevant to
whether there was a duty to preserve, and that was an issue solely within the purview of
the trial court. Accordingly, the court did not abuse its discretion in ruling the testimony
was inadmissible.

The Defendant contends that exclusion of this evidence violated the Fifth
Amendment. Because he did not raise this issue at trial and does not provide argument
regarding this issue in his appellate brief, our review is limited to plain error. See
Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We conclude that the
Defendant failed to meet his burden in proving that exclusion of Dr. Miller’s testimony
violated a clear and unequivocal rule of law. The evidence was not critical to the defense
because the issue of the duty to preserve evidence is a matter of law for the trial court’s
determination. Dr. Miller’s testimony would not have assisted the jury in its resolution of
any issue in the case. The Defendant is not entitled to relief on this basis.

XVIII. Documents Related to Lawsuit against Shelby County Jail

Next, the Defendant asserts that the trial court should have admitted into evidence
another prisoner’s affidavit about the prisoner’s experiences in the Shelby County Jail
and about a 2000 contempt order. The State disagrees, arguing that these documents
lacked probative value because they related to the jail’s conditions when the Defendant
was no longer confined there and that the affidavit was inadmissible hearsay.

Attorney Robert Hutton testified that in 1996 or 1997 he filed a lawsuit against the
Shelby County Jail, alleging that jail conditions violated the Eighth Amendment to the
United States Constitution. Shelby County stipulated that the conditions were
unconstitutional and agreed to make changes to the facility. The defense attempted to
admit several documents related to the lawsuit, and the State objected. One of the
documents was described as a contempt order, which contained “graphic, specific
instances, everything from smack down tournaments . . . to gang rapes.” The State
argued that no evidence reflected that the Defendant had personal knowledge of these
- 45 -
activities and that it was irrelevant to show why he attempted to escape. The State also
noted that several of the documents pertained to times when the Defendant was no longer
confined at the jail. The defense argued that the documents described the jail as a “hell
hole” and that the documents were relevant to establishing the Defendant’s state of mind
at the time of the attempted escape.

The trial court found that the general information relating to the conditions at the
jail and the county’s admission that they were unconstitutional were admissible. It
excluded evidence of specific instances of conduct at the jail, unless the Defendant could
establish a link between himself and the conduct. The court stated that the Defendant had
“a right to show that the jail conditions were bad, as a possible reason that he might
escape, but as far as showing that some gang member raped some other gang member in
the jail, . . . that is far [afield].” Thus, the court permitted the defense to present the
consent order in which Shelby County admitted the conditions were unconstitutional but
not the additional litigation documents because “the majority of which took place when
[the Defendant] was not in [the] jail.”

The purpose of the evidence was to provide a reason for the Defendant’s
attempted escape other than a consciousness of guilt. Mr. Hutton’s testimony and the
consent order established that conditions at the jail were unconstitutional and that the
County agreed to make changes. The excluded documents generally detailed specific
instances of violence and sexual assault, but the incidents were not connected to the
Defendant, and he did not establish the excluded documents relevance. Therefore, the
trial court did not abuse its discretion by prohibiting the admission of the relevant
documents, and the Defendant is not entitled to relief on this basis.

The Defendant asserts that the exclusion of this evidence was a violation of the
Fifth Amendment of the United States Constitution. He did not assert that issue at trial,
and his cursory treatment of the issue in his brief qualifies it for waiver. See Adkisson,
899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). Our review is limited to plain error.
We conclude that the specific instances of conduct the Defendant sought to introduce
were not critical to the defense because nothing connected the Defendant’s experience at
the jail to the unconstitutional conduct. Accordingly, the trial court’s exclusion did not
affect the outcome of the trial. The Defendant has not established plain error and is not
entitled to relief on this basis.

- 46 -
 XIV. Non-Capital Sentencing

Finally, the Defendant raises one sentencing issue related to the application of an
aggravating factor relative to his aggravated robbery conviction. He asserts that proof did
not support a finding that he was a leader in the offense and that the trial court erred by
applying this factor and ordering the sentence for aggravated robbery to be served
consecutively to the death sentence. The State responds that the Defendant has waived
this issue for failing to include a transcript from this portion of the sentencing phase.
Alternatively, the State asserts that the evidence supported application of the enhancing
factor.

As the appellant, it was the Defendant’s burden to prepare an adequate record for
appellate review. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). In the
absence of an adequate record, this court must presume that the trial court’s ruling was
correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993); see
also State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993) (holding that when the
appellant contends that the sentence is excessive but does not include a transcript from
the sentencing hearing, the issue of excessive sentences will be considered waived);
Tenn. R. App. P. 24(b).

Without a transcript of the non-capital sentencing hearing, this court cannot
evaluate the trial court’s application of the enhancement factor, and we presume the
court’s action was correct. The Defendant is not entitled to relief on this basis.

XV. Mandatory Review

When reviewing a conviction for first degree murder and an accompanying
sentence of death, Tennessee Code Annotated section 39-13-206(c)(1)(2018) requires this
court to review the record to determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;
(B) The evidence supports the jury’s finding of statutory aggravating
circumstance or circumstances;
(C) The evidence supports the jury’s finding that the aggravating
circumstance or circumstances outweigh any mitigating circumstances; and
(D) The sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the nature of the crime and the
defendant.

- 47 -
A. Arbitrariness of Death Sentence

In accordance with the trial court’s instructions, the jury unanimously determined
that the State proved beyond a reasonable doubt that an aggravating circumstance applied
to the murder committed by the Defendant and that the aggravating circumstance
outweighed the mitigating circumstances. The record reveals that the penalty phase was
conducted pursuant to the applicable statutory provisions and to the rules of criminal
procedure. We conclude that the Defendant’s sentence of death was not imposed in an
arbitrary fashion.

B. Evidence Supporting Aggravating Circumstances

We next turn to the sufficiency of the evidence supporting the aggravating
circumstances found by the jury. In considering whether the evidence supports the jury’s
findings of statutory aggravating circumstances, we must determine, after viewing the
evidence in the light most favorable to the State, whether a rational trier of fact could
have found the existence beyond a reasonable doubt of the aggravating circumstances.
State v. Rollins, 188 S.W.3d 553, 571 (Tenn. 2006) (citing Reid, 164 S.W.3d at 314).

The jury applied one aggravating circumstance that the Defendant “was previously
convicted of one (1) or more felonies, other than the present charge, whose statutory
elements involve the use of violence to the person.” T.C.A. § 39-13-204(i)(2)(Supp.
1998). Our supreme court has defined the word “violence” as “physical force unlawfully
exercised so as to injure, damage or abuse.” State v. Fitz, 19 S.W.3d 213, 217 (Tenn.
2000). “When the statutory elements of the prior felony . . . , in and of themselves, do
not necessarily involve the use of violence to the person,” the trial court is required to
examine the facts underlying the felony to determine whether the (i)(2) aggravating
circumstance may properly be considered by the jury. State v. Bell, 512 S.W.3d 167, 204
(Tenn. 2015) (citing State v. Sims, 45 S.W.3d 1, 11-12 (Tenn. 2001)).

In support of the (i)(2) aggravating circumstance, the State relied upon four prior
convictions: assault with the intent to commit robbery with a deadly weapon, rape, and
two counts of aggravated assault. The trial court noted that aggravated assault could be
accomplished with or without violence and, accordingly, would not always qualify as an
aggravator under subsection (i)(2). The court reviewed the aggravated assault
indictments and determined that the underlying facts involved the use of violence. See
State v. Young, 196 S.W.3d 85, 111-12 (Tenn. 2006) (setting forth guidelines for
determining whether a prior felony involves the use of violence against a person).
Therefore, the court allowed the State to present these prior convictions to the jury for
review. To establish the prior convictions, the State introduced judgments for each

- 48 -
conviction. We conclude that the evidence is sufficient to support the jury’s application
of the (i)(2) aggravating factor.

C. Weighing Aggravating and Mitigating Circumstances

We next consider whether the evidence supports the jury’s finding that the
aggravating circumstances outweighed any mitigating circumstances beyond a reasonable
doubt. We must determine “whether a rational trier of fact could find that the
aggravating circumstances outweigh the mitigating circumstances beyond a reasonable
doubt when the evidence is taken in the light most favorable to the State.” State v.
Freeland, 451 S.W.3d 791, 820 (Tenn. 2014).

At the sentencing hearing, the Defendant stated that he did not wish to present any
mitigating evidence. The trial court noted that the Defendant would need to be
questioned on the record about his decision to forego the presentation of mitigating
evidence pursuant to Zagorski v. State, 983 S.W.2d 654, 660-61 (Tenn. 1998). The
Defendant was placed under oath and testified unequivocally that he understood the
importance of mitigating evidence and his right to present such evidence, that he had
sufficiently discussed the matter with his attorneys, who strongly advised against his
decision, and that he wished to forego presentation of the evidence. The court
determined that the Defendant had freely and voluntarily waived his right to present
mitigation evidence. The court stated that the Defendant had already been through two
capital sentencing trials, one at which mitigation evidence was presented, and that the
Defendant likely understood the consequences of his decision. In accordance with the
Defendant’s decision, the defense did not present mitigating evidence, although the court
instructed the jury that it could consider any mitigating evidence raised by the evidence
and produced by the prosecution or defense in the guilt and sentencing phases.

The record contained little, if any, evidence that could mitigate the Defendant’s
actions, and the State presented sufficient evidence of the Defendant’s prior felonies as an
aggravating factor. We therefore conclude that, viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found that the (i)(2) aggravating
circumstance outweighed the mitigating circumstances beyond a reasonable doubt.

D. Proportionality Review

When this court conducts the proportionality review required by Tennessee Code
Annotated section 39-13-206(c)(1)(D), we do not function as a “super jury” that
substitutes our judgment for the judgment of the sentencing jury. See State v. Godsey, 60
S.W.3d 759, 782 (Tenn. 2001). Rather, we must take a broader perspective than the
jurors to determine whether the defendant’s sentences are ‘“disproportionate to the
- 49 -
sentences imposed for similar crimes and similar defendants.’” State v. Thacker, 164
S.W.3d 208, 232 (Tenn. 2005) (quoting Bland, 958 S.W.2d at 664). The pool of cases
upon which we draw in conducting this analysis are “first degree murder cases in which
the State sought the death penalty, a capital sentencing hearing was held, and the jury
determined whether the sentence should be life imprisonment, life imprisonment without
possibility of parole, or death.” State v. Rice, 184 S.W.3d 646, 679 (Tenn. 2006).

The purpose of our review of other capital cases is not to identify cases that
correspond precisely with the particulars of the case being analyzed. State v. Copeland,
226 S.W.3d 287, 306 (Tenn. 2007). Rather, our task is to “identify and invalidate the
aberrant death sentence.” Thacker, 164 S.W.3d at 233. A sentence is not
disproportionate because other defendants have received a life sentence under similar
circumstances. State v. Carruthers, 35 S.W.3d 516, 569 (Tenn. 2000). Rather, a death
sentence is excessive or disproportionate where ‘“the case taken as a whole is plainly
lacking in circumstances consistent with those in cases where the death penalty has been
imposed.”’ Thacker, 164 S.W.3d at 233 (quoting Bland, 958 S.W.2d at 668).

This court uses ‘“the precedent-seeking method of comparative proportionality
review, in which we compare a case with cases involving similar defendants and similar
crimes.”’ Copeland, 226 S.W.3d at 305 (quoting State v. Davis, 141 S.W.3d 600, 619-20
(Tenn. 2004)). We examine “the facts and circumstances of the crime, the characteristics
of the defendant, and the aggravating and mitigating circumstances involved, and we
compare this case with other cases in which the defendants were convicted of the same or
similar crimes.” State v. Stevens, 78 S.W.3d 817, 842 (Tenn. 2002).

In conducting this comparison with regard to the nature of the crime, we generally
consider

(1) the means of death; (2) the manner of death; (3) the motivation for the
killing; (4) the place of death; (5) the victim’s age, physical condition, and
psychological condition; (6) the absence or presence of premeditation; (7)
the absence or presence of provocation; (8) the absence or presence of
justification; and (9) the injury to and effect upon non-decedent victims.

Rimmer, 250 S.W.3d at; see Rollins, 188 S.W.3d at 575. We also compare the
defendant’s “(1) prior criminal record, if any; (2) age, race, and gender; (3) mental,
emotional, and physical condition; (4) role in the murder; (5) cooperation with
authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8)
potential for rehabilitation.” Rimmer, 250 S.W.3d at 35; see Rollins, 188 S.W.3d at 575.

- 50 -
 The evidence in the present case established that the victim was the Defendant’s
former girlfriend and that he had raped and assaulted her on a previous occasion. He
blamed the victim for sending him to jail and threatened to kill her, suggesting
premeditated murder motivated by revenge. Although her body has not been recovered,
the evidence at the crime scene, including the amount of blood, suggested that the victim
suffered a violent death. The evidence also established that the murder occurred during
the perpetration of a robbery. The Defendant disposed of the victim’s body. At the
sentencing hearing, the victim’s mother testified that not knowing exactly how the victim
died and not being able to provide a proper burial was immensely hurtful to the victim’s
family.

The Defendant was thirty-one years old at the time of the instant offenses, and he
had prior convictions for assault with intent to commit robbery with a deadly weapon,
rape, and two counts of aggravated assault. He provided no assistance to the police
during the investigation and expressed no remorse for his crimes.

We conclude that the death sentence in this case is not excessive nor
disproportionate when compared to the death penalty imposed in similar cases. See State
v. Ivy, 188 S.W.3d 132 (Tenn. 2006) (defendant shot his estranged girlfriend multiple
times; prior violent felony aggravator applied); State v. Faulkner, 154 S.W.3d 48, 63
(Tenn. 2005) (defendant murdered his estranged wife after repeated threats to kill her);
State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (defendant stabbed wife after an argument
in a bar and left her to bleed to death in a car; prior violent felony aggravator applied);
State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000) (sole aggravating factor was prior violent
felony); State v. Suttles, 30 S.W.3d 252, 255 (Tenn. 2000) (defendant murdered his
estranged girlfriend); State v. Hall, 8 S.W.3d 593 (Tenn. 1999) (defendant murdered his
estranged wife); State v. Smith, 993 S.W.2d 6 (Tenn. 1999) (defendant murdered store
owner in course of a robbery and prior violent felony aggravator applied); State v.
Johnson, 743 S.W.2d 154 (Tenn. 1987) (defendant killed his estranged wife by
suffocation and prior violent felony aggravator applied).

In completing our review, we need not conclude that this case is identical to prior
cases in every respect, nor must this court determine that this case is “more or less” like
other death penalty cases. See Thomas, 158 S.W.3d at 383. Rather, this court need only
identify aberrant death sentences by analyzing whether a capital case plainly lacks
circumstances similar to those cases in the pool of cases in which a death sentence has
been upheld. The penalty imposed by the jury in the present case is not disproportionate
to the penalty imposed for similar crimes.

- 51 -
 CONCLUSION

In consideration of the foregoing and the record as a whole, we affirm the judgments of
the trial court.

____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE

- 52 -