State of Tennessee v. Jeffrey Mansir

09/25/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 19, 2020

STATE OF TENNESSEE v. JEFFREY MANSIR

Appeal from the Circuit Court for Blount County
No. C-23193 Tammy M. Harrington, Judge
___________________________________

No. E2019-01419-CCA-R3-CD
___________________________________

The Defendant-Appellant, Jeffrey Mansir, was convicted by a Blount County jury of
kidnapping, in violation of Tennessee Code Annotated section 39-13-303, and assault, in
violation of Tennessee Code Annotated section 39-13-101.1 He was sentenced as a Range
II multiple offender to ten years’ imprisonment, to be served consecutively to a Knox
County conviction. In this appeal as of right, the Defendant presents the following issues
for our review: (1) whether the evidence is sufficient to sustain the Defendant’s conviction
for kidnapping; (2) whether the trial court erred in denying the Defendant’s request for a
mistrial following an improper comment by the victim; and (3) whether the trial court erred
in sentencing the Defendant as a Range II offender based on a prior out of state felony
conviction. Following our review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and J. ROSS DYER, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the Defendant-Appellant, Jeffrey Mansir.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Mike L. Flynn, District Attorney General; and Tiffany Smith,
Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

On October 17, 2014, the night of the victim’s birthday, the victim and the
Defendant, who was her boyfriend at the time, got into a verbal argument which quickly

1
The Defendant was initially indicted by Blount County grand jury of aggravated kidnapping,
aggravated assault by strangulation, and reckless aggravated assault.
escalated and turned physical. The victim alleged that the Defendant struck her multiple
times in the face and body, strangled her, hit her in the head with a motorcycle helmet, and
confined her in her bedroom overnight, refusing to allow her to leave until the next
morning. The victim did not call the police or go to the doctor until over a week later
because she was scared of what the Defendant would do to her if she told someone what
happened. The Defendant admitted that he hit the victim, but he argued that this amounted
to a domestic assault instead of aggravated assault. He denied strangling the victim or
confining her to her bedroom and refusing to allow her to leave. The following proof was
adduced at the Defendant’s trial, which took place from April 18-20, 2018.

The victim, the sole witness for the State, was thirty-seven years of age and a
registered nurse at the time of the Defendant’s trial. She testified that, in October 2014,
she lived in Maryville, Tennessee with her nine-year-old son and the Defendant, who was
her boyfriend at that time. She and the Defendant had been in a relationship for one year
and ten months at that time, but they were “in the process of breaking up.” On the victim’s
birthday, October 17, 2014, she went to lunch with a friend, got her nails done, met with
the Defendant’s mother, and met her friends at a bar for drinks. The victim was at the bar
for several hours, during which she estimated that she had “between four and six beers,
three to four shots throughout the course of the evening.” Although the Defendant was not
initially invited to the bar, he eventually showed up after the victim invited him. He arrived
at the bar around 11:30 p.m., and he left with the victim in his car around 1:30 a.m.

When they arrived home, the Defendant and the victim began kissing and things
“progressed back towards the bedroom[,]” at which time the Defendant made a comment
about the victim’s “being unfaithful.” The victim became offended at this comment, and
she and the Defendant stopped kissing. The Defendant got dressed and left the master
bedroom, and the victim wrapped a blanket around her and followed the Defendant into
the kitchen/living room. The Defendant began making eggs, and the victim asked the
Defendant “why he always wanted to argue and say things like that when he knew they
weren’t true.” The victim went into the spare bedroom, and she received a text message
from her male friend asking if she had arrived home safely. The Defendant asked the
victim if this text was a “booty call,” she told him that it was not, and the Defendant
“snatched the phone out of [the victim’s] hand and started scrolling through [her] text
messages and reading some of them out loud.” The Defendant became “extremely angry,”
called the victim a “dirty w---e,” and asked her what else she was hiding. The Defendant
began walking back towards the kitchen, and the victim followed him, trying to grab her
phone. The Defendant then pushed the victim down, and she landed on her hip. The victim
described herself as 5' 4", 120 pounds and the Defendant as 6' 3" to 6' 4", 240 pounds at
that time.

The victim “jumped up and ran around the couch,” and the Defendant continued to
call the victim a “w---e and dumb b--ch and various colorful words.” She called the
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Defendant an “a--hole” and a “liar,” and she threw three candles at the Defendant “hoping
that maybe if something made impact that he wouldn’t be able to get [her].” The victim
said that the candles did not hit the Defendant, but they hit the wall and shattered, which
“[further] [enraged]” the Defendant. The victim ran towards the spare bedroom, something
hit her from behind and she stumbled, and she got up and ran into the bedroom. She then
threw a glass over her shoulder at the Defendant, but she was not sure if the glass hit the
Defendant. The Defendant then started hitting the victim in the face and the head, most of
which were to the left side of her face. The victim pleaded with the Defendant to stop, but
the Defendant continued. The victim fell to the floor, while the Defendant continued to hit
her in the arms and the sides.

The victim stated that the next thing that she remembered was being on the bed, and
the Defendant put his hands around her neck and started choking her. The Defendant told
the victim, “[Y]ou’re never going to see your son again, you f---ing c--t.” The victim was
not sure how long the Defendant was choking her, but she lost consciousness. When she
woke up, the Defendant was “pretending to call 9-1-1[,]” and he told the victim that she
did not deserve him and that she was ungrateful. She began apologizing and crying, and
the Defendant picked up a motorcycle helmet that he had bought for her and threw it at her,
striking her on the side of the head. The victim said that it felt like she “got hit with a
brick[,]” and she started feeling very sick. The Defendant picked up the helmet and threw
it at the victim again, but it “missed and it bounced and hit the bed and the wall behind [the
victim] and it put a hole in the wall.” The victim identified a photograph of the motorcycle
helmet2, which had “white flecks” on it because of “paint transfer from the wall.” She also
identified a photograph showing a hole in the wall where the helmet struck.

The victim said that things got a “little fuzzy” at that point, and she believed that
she had a concussion based on her nausea, dizziness, and blurred vision, and based this on
her experience as a registered nurse. After this, the victim began apologizing to the
Defendant. She told him that she had to use the bathroom, and he told her “to piss in the
floor, you c--t.” She asked the Defendant if she could lay back down on the bed, but she
could not remember what he said. Her next memory was of the Defendant’s telling her,
“[W]e’re going to go lay down together, you’re not laying in here by yourself, there’s no
way, because you’ll call the police. You know what happens if I go back to jail. I will kill
you before I go back to jail.” The Defendant and the victim then exited the spare bedroom,
and the Defendant let the victim use the bathroom, where she dry-heaved. The Defendant
then told the victim that they were going to the master bedroom, and, once they were inside
the room, the Defendant closed the door and put a mirror in front of the door. The victim
said that the mirror was about six feet tall, “very large,” “very heavy,” and “it takes two
grown men to move it.” The victim identified a picture of the mirror. She said that her

2
We note that none of the exhibits entered at trial were included in the record on appeal.
-3-
bedroom door opened into the room and that there was no way for her to get out of the
bedroom with the mirror in front of the door.

The Defendant started hitting the victim again, and she started “praying out loud, ”
which prompted him to stop hitting her. The Defendant let the victim get back on the bed,
and he “started having sex with [her][,]” which she said she did not want to do. She asked
the Defendant to stop, which he did, and he called her a “dirty w---e who could spread [her]
legs for everyone but him.” The Defendant then turned the light off and laid down beside
the victim, while she sat upright because of her concussion. The Defendant told the victim
to stay in bed. She stated that she began thinking about how she “had no clothes, no phone,
and [she] didn’t know how [she] was going to get out of that room or if [she] was going to
get out of that room.” The victim attempted to get up when the Defendant became still,
but he told her to “stay still.”

The next morning, the victim told the Defendant that she was very thirsty and
needed to take something for her head, so the Defendant moved the mirror and let her go
to the kitchen. The Defendant followed the victim into the kitchen, but he eventually went
back into the bedroom. The victim attempted to find a “burner phone” that was somewhere
in her house without “raising any kind of suspicion” with the Defendant. She eventually
found the phone and tried to call her mother, but she did not answer. The victim said that
she did not call the police because she “absolutely believed that [the Defendant] would kill
[her] if [she] didn’t do as he had asked[,]” and she did not leave because she did not have
her keys or her car and she did not want her neighbors to call the police.

The victim called the Defendant’s mother and told her that the Defendant had hurt
her and she needed to get out of the house, and the Defendant’s mother and stepfather
picked her up and took her back to their house. The victim took a photograph of her face,
which the State introduced to the jury, and she explained that she had an “awful” headache,
her cheek was swollen and sore, and her limbs ached. The victim said that she did not go
to the hospital because “[the Defendant] told [her] that he would kill [her] if [she] told on
him.” The victim stayed with the Defendant’s mother for a few days, during which time
she took several photographs of herself, which were entered into evidence. At some point
while she was staying with the Defendant’s mother, the victim received a text message
from the Defendant with a photograph of the side of the Defendant’s face attached. The
Defendant told the victim that the injury to his face was from her throwing the glass at him.

On the weekend after the victim returned home, her son’s father and his girlfriend
came to her house in the middle of the night and “started panicking” when they saw her
face. She explained that she was not wearing makeup at that point, and, until that time, no
one else had seen the injuries to her face. The victim said that her son’s father was “so
alarmed by how it looked and by the fact that [she] hadn’t contacted the police.” Several
friends showed up to her house, one of whom called the police, and the victim told an
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officer what happened with the Defendant. The officer took photographs of the victim’s
face, and these were entered into evidence. The victim also filed an order of protection
against the Defendant. A few days later, the victim sought medical treatment, and she
explained that she had been assaulted and was still having headaches, nausea, dizziness,
and blurred vision. She had an MRI and was diagnosed with a concussion. She stated that
her doctors also “made reference to a hairline fracture that was found on the odontoid
process, which is the neck, of her C2 vertebra.” The victim’s medical records were entered
into evidence.

On cross-examination, the victim confirmed that she gave a statement to an officer
and that she had seen a copy of his report. She stated that, although the officer wrote that
the Defendant “slammed [the victim’s] head into a wall” and threw the victim against the
“top support of the couch,” she did not tell him these things and the officer “paraphrased
quite a bit.” Defense counsel provided the victim with a copy of the officer’s report, and
she confirmed that the report did not mention that she was held against her will, strangled,
raped, or hit with a helmet. The victim also stated that she was “forthcoming and accurate”
with what she told her doctors. She said that she told her doctors that she was involved in
an assault but not that she was strangled, raped, or kidnapped. She confirmed that the
doctor’s report did not indicate any injury to her nose, mouth, or throat, but it did indicate
bruising to her left abdomen and face. The victim’s physical examination revealed that her
neck was “non-tender to palpitation” and that she had “a range of movement without
pain[,]” but she stated that her neck was not sore at that time.

Defense counsel questioned the victim extensively about the injuries to her head.
The first report, which was entered on October 28, 2014, indicated that the victim had post-
concussive syndrome and was based on what the victim told her doctors of her symptoms
and not on any kind of testing. She explained that her eye test results were abnormal, so
doctors referred her to have an MRI done. The victim identified the report from her MRI,
which indicated that she had a head injury. She affirmed that the report did not use the
word “concussion.” Defense counsel questioned the victim about the “findings” and
“impressions” indicated on the report, all of which came back normal. The victim affirmed
that she had a hairline fracture on her neck; however, she and defense counsel argued back
and forth on whether this was indicated on her report. She confirmed that none of her
medical documents used the words “hairline fracture,” but she insisted that the tests
indicated an abnormality.

The victim confirmed that her relationship with the Defendant had been very tense
prior to this incident, and they had each accused each other of infidelity. The victim
affirmed that, on the day of the incident, she had a margarita, a shot, and a beer in the
afternoon, as well as five to seven beers and two shots at the bar that night, and she had a
“very healthy buzz.” However, the victim stated that she was not “so drunk” that she had
memory loss about the events that happened that night.
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 Defense counsel introduced a video that the Defendant took of the victim that night
and questioned her about several aspects of it. The victim agreed that she did not remember
being videotaped and, prior to seeing the video, she had never previously described the
events depicted on it. She said that she had not previously realized that she had memory
loss prior to watching the video. The victim stated that the Defendant came into the spare
room, and she sounded “confused,” “slurred,” and “garbled.” The Defendant asked the
victim why she threw candles at him, and she said, “Because you wouldn’t give me my
phone.” The victim could not remember when the video was made in the chain of events
that night. She affirmed that the Defendant’s motorcycle helmet was in the spare bedroom
and that he threw it at her, although she could not remember whether he actually threw it
or “held it in his hand and struck [her] with it.” She disagreed that she “described the
assault differently when [she] testified [previously] than [she] did [at trial].” She also
disagreed that, on the video, the Defendant left her in the spare bedroom and turned off the
light as he exited the room.

The victim said that her son’s father came to check on her to “make sure that [the
Defendant] hadn’t come home angry” because he ran into the Defendant at a strip club,
and they got into an argument. She agreed that, shortly after this, she sent the Defendant a
text message saying, “As a matter of fact, you scumbag motherf--ker, don’t ever step foot
back in my house. You have f--ked yourself.” On redirect examination, the victim stated
that her medical records indicated that she had a concussion. The victim read the statement
that she gave when she filed the order of protection against the Defendant, as well as her
preliminary hearing testimony, into evidence. She stated that this testimony was
“substantially similar” to what she had said at trial. On recross-examination, the victim
agreed that, although she said in her prior statements that the Defendant never left her alone
in the spare bedroom, the video showed that she was left alone in that room. She agreed
that she was given information prior to trial to refresh her memory on the events of that
night. Following the victim’s testimony, the State rested. The Defendant did not present
proof on his behalf.

Following deliberations, the jury convicted the Defendant of the lesser included
offenses of kidnapping and assault. He was subsequently sentenced, as a Range II offender,
to a concurrent term of ten years’ imprisonment for his kidnapping conviction, and eleven
months and twenty-nine days for the assault, which was to be served consecutively to
another, unrelated Knox County conviction. On July 3, 2019, the trial court conducted a
hearing on the Defendant’s motion for new trial, which was subsequently denied. The
Defendant filed a timely notice of appeal, and his case is now properly before this court for
our review.

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 ANALYSIS

I. Sufficiency of the Evidence. First, the Defendant argues that the evidence is
insufficient to support his conviction for kidnapping.3 He asserts that there was insufficient
evidence to establish that he confined the victim and that the only “evidence of physical
confinement beyond the assault and threats” was that the Defendant placed a large mirror
in front of the bedroom door and told the victim to stay in the bed. However, he states,
“[The victim] did not say that she was physically unable to move the mirror away from the
door, or that she attempted to leave the room and was physically restrained from doing so.”
The State responds that the evidence is sufficient to support the Defendant’s kidnapping
conviction, asserting, “the evidence showed that the [D]efendant moved the victim into
their bedroom and refused to allow her to leave the room or the apartment.” We agree with
the State.

“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).
“Appellate courts evaluating the sufficiency of the convicting evidence must determine
‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court
evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318
S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691
(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,
335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).
Moreover, the jury determines the weight to be given to circumstantial evidence, and the
inferences to be drawn from this evidence, and the extent to which the circumstances are

3
The Defendant does not challenge the sufficiency of the evidence surrounding his conviction for
assault.
-7-
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.
Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).
When considering the sufficiency of the evidence, this court “neither re-weighs the
evidence nor substitutes its inferences for those drawn by the jury.” Wagner, 382 S.W.3d
at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

As relevant here, “Kidnapping is false imprisonment as defined in [Tenn. Code
Ann.] 39-13-302, under circumstances exposing the other person to substantial risk of
bodily injury.” Tenn. Code Ann. § 39-13-303(a). “A person commits the offense of false
imprisonment who knowingly removes or confines another unlawfully so as to interfere
substantially with the other’s liberty.” Tenn. Code Ann. § 39-13-302(a). “Because it
serves a building block for Tennessee’s kidnapping statutes, false imprisonment is meant
to ‘broadly address[ ] any situation where there is an interference with another’s liberty.’”
State v. Carey, No. M2013-02483-CCA-R3-CD, 2015 WL 1119454, at *9 (Tenn. Crim.
App. Mar. 10, 2015) (citing Tenn. Code Ann. § 39-13-302(a), Sentencing Comm’n Cmts.;
State v. White, 362 S.W.3d 559, 574–75 (Tenn.2012)).

Viewing the evidence in the light most favorable to the State, the Defendant and the
victim were engaged in a heated argument, during which the victim threw several glass
objects at the Defendant, and the Defendant struck the victim multiple times in the head
and face. The victim testified that the Defendant strangled her until she lost consciousness
and hit her on the side of the head with a motorcycle helmet, giving her a concussion. The
Defendant would not let the victim use the bathroom, and he told her, “[W]e’re going to
go lay down together, you’re not laying in here by yourself, there’s no way, because you’ll
call the police. You know what happens if I go back to jail. I will kill you before I go back
to jail.” The Defendant and the victim then went into the master bedroom and the
Defendant put a mirror, which the victim described as “very large” and “very heavy,” in
front of the door, blocking her exit from the room. The Defendant began hitting the victim
again, tried to have sex with her, and eventually turned the lights off in the room and laid
down next to the victim. She tried to get up during the night, and the Defendant told her
to stay in bed and “stay still.” The victim stated that she was not able to exit the room until
the next morning when the Defendant moved the mirror from the doorway and allowed her
to go into the kitchen. The victim stated several times that she “believed that [the
Defendant] would kill [her] if [she] didn’t do as he had asked.”

Although the Defendant essentially argues that the victim was not confined because
she did not say that she was unable to move the mirror or that the Defendant physically
restrained her from leaving the bedroom, the jury heard the victim’s testimony, and, by its
verdict, accredited her testimony, as was its prerogative. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008); State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The evidence
shows that the Defendant had already physically harmed the victim by the time they went
into the master bedroom, and she was afraid that he would further harm her or kill her if
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she attempted to leave the room that night. Therefore, the evidence is sufficient to sustain
the Defendant’s conviction for kidnapping. He is not entitled to relief on this issue.

II. 404(b)/Motion for Mistrial. Next, the Defendant asserts that the trial court
erred in denying his request for a mistrial after the victim referenced a statement made by
the Defendant about “going ‘back’ to jail” during her testimony. While he acknowledges
that this statement “could [have] assist[ed] [the jury] in evaluating the [Defendant’s]
reasoning for his actions at the time[,]” he asserts that the victim’s use of the phrase “back
to jail” was evidence of a prior bad act, and “may have left the jury speculating about what
misdeeds may have led to his prior incarceration.” The State responds that the Defendant
failed to establish manifest necessity for a mistrial, and, as such, the trial court did not
abuse its discretion in denying his request. The State asserts that the trial court followed
the proper procedure under Tennessee Rule of Evidence 404(b), that the victim was
instructed by the State not to mention anything about the Defendant going back to jail, that
the trial court properly held that the statement established the Defendant’s motive for
committing the crime, and that it was not unduly prejudicial under Tennessee Rule of
Evidence 403. We agree with the State.

On June 9, 2017, the trial court held a hearing on the State’s 404(b) motion seeking
to admit the following statement that the victim testified was made by the Defendant while
he was assaulting her: “Look at your face. This is ten times worse than what I did to Nicole.
Look how much trouble I got in for that. If I had a gun right now, I’d blow your brains out
and mine.” Defense counsel requested a clarification on what exactly the State was seeking
to introduce based on its pre-trial motion,4 and the State asserted that it was seeking to
introduce the Defendant’s statement and his Knox County conviction for aggravated
assault. The trial court reserved its ruling on the issue and held that its ruling would depend
on the testimony that came out at trial.

During her testimony at trial, the victim made the following statement:

He let me get up and he said we’re going to go – we’re going to go lay down
together, you’re not laying in here by yourself, there’s no way, because you’ll
call the police. You know what happens if I go back to jail. I will kill you
before I go back to jail.

The Defendant requested a bench conference, and the State told the trial court that the
victim had been instructed not to say anything about the Defendant going back to jail. The

4
The State’s 404(b) motion, and all of the pre-trial pleadings for that matter, are not included in
the record on appeal.
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trial court then held a jury out hearing, during which the Defendant argued that the trial
court’s 404(b) ruling up until that point would not allow that testimony into evidence, and
he requested a mistrial. The trial court expressed reservations on whether the statement
was prohibited under its ruling until that point, and the Defendant asserted that the
statement was evidence of a prior bad act and required a 404(b) hearing outside of the
presence of the jury before being admitted. The State informed the trial court that the
statement was proffered at the preliminary hearing, and the trial court held as follows on
the issue:

And in these situations, you have a witness on the stand who is being asked
questions on direct examination, which are open[-]ended questions where
either side is asking a witness to tell their story. And quite frankly that was
the next thing that happened in the story, in the sequence of events, and it
was a statement made by the Defendant, made in conjunction with a
statement -- and once again I’m paraphrasing -- about [the victim] -- about
why going to the master bedroom, why staying with [her], et cetera. And
once again I find that it is the Defendant’s words, it goes to motive, it goes
to intent. I don’t find that the way that this testimony was presented at this
point was unfairly prejudicial. I don’t find any wrongdoing on behalf of the
State. You’re not alleging any wrongdoing on behalf of the state.

...

And I appreciate that, because under these circumstances that would be an
unnecessary trail to go down, I believe, under the way that this was presented
and [the prosecutor’s] reaction. So, at this point, I am going to deny your
request for a mistrial. However, you have it preserved now for the record.
Okay?

The trial court also instructed the State to tell the witness to refrain from making any further
statements about the Defendant returning to jail. The trial court held that the statement was
made unintentionally and was not in violation of her previous 404(b) rulings.

The decision to grant or deny a mistrial rests within the sound discretion of the trial
court and will not be reversed absent an abuse of discretion. State v. Nash, 294 S.W.3d
541, 546 (Tenn. 2009); State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). A trial court
should declare a mistrial “only upon a showing of manifest necessity.” Robinson, 146
S.W.3d at 494 (citing State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn. 2003)). “‘In other
words, a mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage
of justice would result if it did.’” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34
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S.W.3d 516, 527 (Tenn. Crim. App. 2000)). “‘The purpose for declaring a mistrial is to
correct damage done to the judicial process when some event has occurred which precludes
an impartial verdict.’” State v. Reid, 164 S.W.3d 286, 341-42 (Tenn. 2005) (quoting State
v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996)). The party seeking a mistrial
has the burden of establishing the necessity for a mistrial. Reid, 164 S.W.3d at 342 (citing
Williams, 929 S.W.2d at 388). In determining whether a trial court abused its discretion in
granting or denying a mistrial, this court should consider the following factors: “(1)
whether the State elicited the testimony, (2) whether the trial court gave a curative
instruction, and (3) the relative strength or weakness of the State’s proof.” State v.
Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007) (citing State v. Lawrence Taylor,
No. W2002-00183-CCA-R3-CD, 2003 WL 402276, at *10 (Tenn. Crim. App. Feb. 14,
2003)).

Evidence of a defendant’s character offered for the purpose of proving that he or
she acted in conformity with that character is inadmissible. See Tenn. R. Evid. 404(a).
However, evidence of other crimes, wrongs, or bad acts may be admissible for other
purposes if this evidence satisfies the conditions in Tennessee Rule of Evidemce 404(b).
Rule 404(b) states:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action
in conformity with the character trait. It may, however, be admissible for
other purposes. The conditions which must be satisfied before allowing such
evidence are:

(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.

Pursuant to the Advisory Commission Comment to Rule 404, “evidence of other crimes
should usually be excluded.” Tenn. R. Evid 404(b), Adv. Comm’n Cmt. However, in
exceptional cases, “where another crime is arguably relevant to an issue other than the
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accused’s character,” such as “identity (including motive and common scheme or plan),
intent, or rebuttal of accident or mistake,” the evidence may be admissible. Id.; see State
v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004) (stating that evidence of other crimes, wrongs,
or acts may be admissible if it establishes the defendant’s motive, intent, guilty knowledge,
identity of the defendant, absence of mistake or accident, a common scheme or plan,
completion of the story, opportunity, and preparation).

If a trial court does not substantially comply with the procedural requirements of
Rule 404(b), then this court will review the trial court’s admissibility ruling de novo. State
v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014). However, if a trial court substantially
complies with the rule’s requirements, the court’s ruling will not be overturned absent an
abuse of discretion. Id. (citing State v. Kiser, 284 S.W.3d 227, 288-89 (Tenn. 2009); State
v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)). This court will find an abuse of discretion
“only when the trial court applied incorrect legal standards, reached an illogical conclusion,
based its decision on a clearly erroneous assessment of the evidence, or employed
reasoning that causes an injustice to the complaining party.” State v. Banks, 271 S.W.3d
90, 116 (Tenn. 2008) (citing Konvalinka v. Chattanooga–Hamilton County Hosp. Auth.,
249 S.W.3d 346, 358 (Tenn. 2008)).

The record reflects that the victim stated the comment in question, that the
Defendant said he would kill her before he returned to jail, inadvertently in narrative form
in response to an open-ended question by the State. Under these circumstances, the trial
court was obviously unable to comply with the requirements of Rule 404(b); therefore, our
standard of review is de novo. Upon our review, we nevertheless agree with the trial court
and conclude that the Defendant’s statement was probative of his motive and intent to
commit the kidnapping of the victim to keep her from telling anyone about the assault.
Although the trial court did not explicitly state that proof of other crimes, wrongs, or acts
was “clear and convincing,” the record established that the Defendant had previously been
incarcerated and had a Knox County conviction for the aggravated assault of another
woman. The trial court determined, and we agree, that the statement was not unduly
prejudicial to the Defendant.

We also conclude that the trial court did not abuse its discretion in denying the
Defendant’s request for a mistrial. First, the trial court determined that the State did not
elicit the foregoing statement from the Defendant; instead, the victim made the statement
in the course of “tell[ing] [her] story.” See State v. Nash, 294 S.W.3d 541, 547 (Tenn.
2009) (holding that the State did not elicit the inappropriate testimony from the witness
concerning the defendant’s prior DUI convictions and that this was a “‘spontaneous
statement’ that was made during ‘unrelated questioning by the trial court.’”); State v.
Smith, 893 S.W.2d 908, 923 (Tenn. 1994) (considering an inappropriate statement by a
witness concerning the defendant’s previous incarceration and concluding that such a
statement was “unresponsive and unsolicited” and did not warrant a mistrial.)
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Additionally, the Defendant agreed at trial that the State did not commit any wrongdoing.
Next, although the trial court did not issue a curative instruction to the jury, the trial court
did instruct the State to inform the witness to refrain from making further such statements.
Lastly, the Defendant conceded that the evidence was sufficient to support his conviction
for assault, and, as we discussed in the previous section, the State presented sufficient
evidence to support the Defendant’s conviction for kidnapping. The Defendant is not
entitled to relief on this issue.

III. Sentencing. Lastly, the Defendant asserts that the trial court improperly
classified him as a Range II offender based on a prior felony conviction for robbery in
Florida. He argues that the Florida conviction does not necessarily equate to a felony
conviction in Tennessee because “a Florida crime in which someone could be convicted of
taking property merely by unlawful force, is not necessarily equivalent to a Tennessee
robbery which requires the taking be accomplished with violence or fear.” The State
responds that the trial court properly exercised its discretion in sentencing the Defendant
as a Range II offender. The State asserts, “[R]obbery is a named felony in Tennessee, as
well as in Florida, and this Court has held that a named felony in another state must be
considered the equivalent of a named felony in this state for the purposes of determining
range.” We agree with the State that the trial court properly classified and sentenced the
Defendant as a Range II offender.

At the Defendant’s sentencing hearing, which was held on August 17, 2018, the
State entered the Defendant’s presentence report into evidence. The State referenced its
pre-trial memorandum on sentencing, which was not included in the record on appeal, and
argued that the “Defendant’s felony criminal history alone is sufficient to establish
extensive criminal history pursuant to the statute to qualify as an enhancing factor.” The
Defendant argued that he should be classified as a Range I offender. Although the
Defendant conceded that his Knox County aggravated assault conviction could be used to
determine his range, he asserted that his Broward County, Florida robbery conviction did
not amount to a felony conviction in Tennessee, and, therefore, could not be used to qualify
him as a Range II offender. The trial court also made the disposition for the Defendant’s
Florida conviction an exhibit to the hearing. The trial court reasoned as follows in
sentencing the Defendant as a Range II offender:

One of the first analyses which the court must engage in is what is the range
of sentence for this offender. In looking at the range calculator, a range one
standard offender has zero to one priors. It would appear that he has a class
C felony conviction for aggravated assault out of Knox County which is at
the same level as this kidnapping conviction. It’s undisputed that that
qualifies as to a range in the range calculation. The conviction that is at issue
is the Florida conviction for robbery. In looking at whether the Defendant
could be calculated as a range two multiple offender, it is two to four priors
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 and a class higher or two down or one prior A if Class A or B. So this is a
Class C felony offense. And so by the Court’s analysis in looking at range
calculation, it would have to be one class higher or two down to qualify. I
reviewed the statute as to this robbery conviction out of Florida. And I have
considered the argument made by [defense counsel] as to the definition and
the differences in the elements of each of the offenses and I agree that that is
an analysis that is appropriate for this Court to engage in.

In taking this felony conviction in a light most favorable to the Defendant, in
Tennessee the lowest level of felony that this could be is a Class E felony.
So if I give the Defendant the benefit of the doubt even though robbery in
Tennessee is a class C felony, but under the analysis of maybe a change in
elements, at the very least it would be a Class E felony in the state of
Tennessee. And under the range calculations, that would make it appropriate
in determining whether or not the Defendant is a range two multiple offender.
So I have reviewed the statute, I have reviewed the documentation of that
conviction out of the State of Florida, and it is this Court’s opinion that based
upon that analysis of that documentation, coupled with the explanation of
Florida law with an analysis of Tennessee law, that it is appropriate at this
time for this Court to take into consideration that at the very least this would
have been a Class E felony and therefore appropriate in using that to establish
that the Defendant is a range two multiple offender. And, therefore, the Court
finds him as such.

The trial court sentenced the Defendant as a Range II multiple offender to ten years’
imprisonment for kidnapping and eleven months and twenty-nine days for assault, to be
served concurrently to each other and consecutively to his Knox County conviction.5

This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range sentences
that reflect a proper application of the purposes and principles of our Sentencing Act.”
State v. Brewer, No. W2014-01347-CCA-R3-CD, 2015 WL 4060103, at *7 (Tenn. Crim.
App. June 1, 2015) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012)). The court
will uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and principles
listed by statute.” Id. (citing Bise, 380 S.W.3d at 709-10).

5
Kidnapping is a Class C felony. Tenn. Code Ann. § 39-13-303(b). A Range II sentence for a
Class C felony is “not less than six (6) nor more than ten (10) years.” Tenn. Code Ann. § 40-35-112(b)(3).
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 In Tennessee, a multiple offender is a defendant who has received:

(1) A minimum of two (2) but not more than four (4) prior felony convictions
within the conviction class, a higher class, or within the next two (2) lower
felony classes, where applicable; or

(2) One (1) Class A prior felony conviction if the defendant’s conviction
offense is a Class A or B felony.

Tenn. Code Ann. § 40-35-106(a). In determining the number of prior convictions a
defendant has received:

Prior convictions include convictions under the laws of any other state,
government or country that, if committed in this state, would have constituted
an offense cognizable by the laws of this state. In the event that a felony from
a jurisdiction other than Tennessee is not a named felony in this state, the
elements of the offense shall be used by the Tennessee court to determine
what classification the offense is given.

Tenn. Code Ann. § 40-35-106(b)(5).

The Defendant argues that the elements constituting robbery in Florida are not the
same as they are in Tennessee.6 However, according to the statute, “The elements of an
offense are to be used when the ‘felony from a jurisdiction other than Tennessee is not a
named felony in this state.’” State v. Webster, No. M2011-00521-CCA-R3-CD, 2012 WL
6032507, at *5 (Tenn. Crim. App. Dec. 5, 2012) (citing Tenn. Code Ann. § 40–35-106(b)
(5) (emphasis added in original). In Webster, this Court interpreted the statute and held,
“The natural language of Tennessee Code Annotated section 40-35-106(b)(5) leads us to
the conclusion that the only time a court should look at the elements of a felony from

6
In Florida, “‘Robbery’ means the taking of money or other property which may be the subject of
larceny from the person or custody of another, with intent to either permanently or temporarily deprive the
person or the owner of the money or other property, when in the course of the taking there is the use of
force, violence, assault, or putting in fear.” Fla. Stat. Ann. § 812.13. In Tennessee, “Robbery is the
intentional or knowing theft of property from the person of another by violence or putting the person in
fear.” Tenn. Code Ann. § 39-13-401. Robbery is a class C felony in Tennessee. Id.

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another jurisdiction when determining its appropriate Tennessee classification is when the
felony in question is not a named felony in Tennessee.” Id. The Defendant was convicted
of robbery in Florida, which is a named felony in Tennessee; therefore, we do not need to
consider the elements of the statutes. We conclude that the trial court correctly concluded
that the Defendant’s Florida conviction for robbery could be used to classify him as a
Range II offender. He is not entitled to relief on this issue.

CONCLUSION

Based on the above authority and analysis, we affirm the judgments of the trial
court.

____________________________________
CAMILLE R. MCMULLEN, JUDGE

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