State of Tennessee v.Joseph Anthony Rivera ( 2016 )


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  •           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    November 10, 2015 Session1
    STATE OF TENNESSEE v. JOSEPH ANTHONY RIVERA
    Appeal from the Criminal Court for Knox County
    No. 95079 Steven W. Sword, Judge
    No. E2014-01832-CCA-R3-CD – Filed May 6, 2016
    The Defendant, Joseph Anthony Rivera, was convicted by a Knox County Criminal Court
    jury of first degree felony murder committed during the attempt to perpetrate a
    kidnapping, first degree felony murder committed during the attempt to perpetrate a
    burglary, second degree murder, a Class A felony, especially aggravated burglary, a Class
    B felony, and aggravated assault, a Class C felony. See T.C.A. §§ 39-13-202(a)(2)
    (2014) (felony murder), 39-13-210(a) (2014) (second degree murder); 39-14-404 (2014)
    (especially aggravated burglary), 39-13-102 (2010) (aggravated assault). The trial court
    merged the felony murder committed during the attempted perpetration of a kidnapping
    and second degree murder convictions with the felony murder committed during the
    attempt to perpetrate a burglary conviction and sentenced the Defendant to concurrent
    terms of life imprisonment for felony murder, ten years for especially aggravated
    burglary, and five years for aggravated assault. On appeal, the Defendant contends that
    (1) the evidence is insufficient to support his felony murder convictions, (2) the trial court
    erred by denying the Defendant‟s motion to sever, (3) the trial court erred by admitting
    inadmissible hearsay evidence, (4) the trial court erred by admitting autopsy photograph
    evidence, (5) the trial court erred by allowing the prosecution to question two witnesses
    relative to an unrelated homicide, and (6) the prosecutor made improper statements
    during his closing argument. 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 JAMES
    CURWOOD WITT, JR., and NORMA MCGEE OGLE, JJ. joined.
    Mike Whalen, Knoxville, Tennessee, for the appellant, Joseph Anthony Rivera.
    1
    Oral argument in this case was held on November 10, 2015, at the Niswonger Performing Arts Center in
    Greeneville, Tennessee, as part of the C.A.C.E.S. (Criminal Appeals Civics Education for Students)
    program.
    Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
    Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    This case arises from the June 5, 2010 killing of Michelle Rivera, the Defendant‟s
    estranged wife. At the trial, Gerald Ross testified that he met the victim online and that
    they decided to meet for dinner in late April 2010. He said that the victim worked as a
    massage therapist at a West Knoxville office, that she also had private clients, and that
    she taught massage therapy. He said the victim was loving, caring, and gentle. Mr. Ross
    knew that the victim was married but separated from her husband when they met and that
    she lived alone in an apartment.
    Mr. Ross testified that on one occasion before May 16, 2010, he was at the
    victim‟s apartment visiting when the Defendant arrived unexpectedly. Mr. Ross said that
    the Defendant beat on the door and that Mr. Ross went upstairs because he did not trust
    the Defendant. Mr. Ross noted the victim had discussed some of her and the Defendant‟s
    relationship issues. Mr. Ross heard the Defendant and the victim talking downstairs and
    saw from the upstairs bedroom window the Defendant standing outside the front door.
    Mr. Ross testified that on May 16, 2010, he and the victim made plans to “go to
    the mountains” for a day trip, that he drove his Geo Tracker to the victim‟s apartment,
    that he parked his vehicle beside the victim‟s Toyota Corolla, and that the victim drove
    her car to Sevier County. He said he left the key to his vehicle, along with additional
    keys on the ring, on the victim‟s kitchen table. He said the apartment was secure when
    they left around 9:45 a.m. He said he suggested the trip in order for the victim to get out
    of town for a few hours because she had been upset about the Defendant‟s aggravating
    her by sending her text messages and calling her cell phone. Mr. Ross said that the
    victim received a telephone call from the Defendant while they were in Pigeon Forge. He
    said that although he could not hear everything the Defendant said, he knew it was the
    Defendant when he heard the caller‟s voice. Mr. Ross said the look on the victim‟s face
    was “great, here we go again” or “I‟m not in the mood for you right now.” He said the
    victim handed him the phone and told him that the Defendant wanted to speak to him.
    Mr. Ross said he declined and noted he and the Defendant had never spoken before that
    day.
    Mr. Ross testified that he ultimately took the cell phone from the victim because
    Mr. Ross heard the Defendant yelling at the victim. Mr. Ross said the Defendant stated,
    “Hey, Buddy, you know you‟re f------ a married woman.” Mr. Ross said that he
    attempted to explain he and the victim were friends but that the Defendant told Mr. Ross
    to “get [his] game on” because the Defendant wanted to fight Mr. Ross. Mr. Ross said
    that he explained he would not fight the Defendant and that the Defendant responded,
    -2-
    “Well, I‟m going to go in the apartment and f--- your truck up.” Mr. Ross admitted he
    told the Defendant he knew where the Defendant lived and worked and threatened the
    Defendant. Mr. Ross said the victim grabbed the phone and ended the call.
    Mr. Ross testified that he and the victim returned to the victim‟s apartment around
    3:00 or 4:00 p.m. and that he saw the “side canvas” of his vehicle was “ripped down.” He
    noted that the front passenger seat had been slashed and the radio removed. He said that
    the seat was not slashed and the radio was not missing before he and the victim left that
    morning. He denied giving anyone permission to damage his vehicle. He said that he
    and the victim entered the victim‟s apartment, that he saw the back door was open and
    the door frame damaged, and that he noticed his keys were missing from the kitchen
    table. He said water had been poured on the victim‟s laptop. He said the victim called
    the police to report the incident, and he identified photographs of the damage to his
    vehicle and to the victim‟s apartment, which were consistent with Mr. Ross‟s testimony.
    Mr. Ross identified a photograph of the Defendant‟s truck taken after the Defendant‟s
    arrest on June 5, 2010, and identified Mr. Ross‟s key ring inside the Defendant‟s truck.
    Mr. Ross said that he and victim discussed whether to file charges against the Defendant
    for the damage to Mr. Ross‟s vehicle and that he decided against it. Mr. Ross said the
    damage to his vehicle was about $1000.
    Mr. Ross testified that his relationship with the victim “increased” in the weeks
    following the May 16, 2010 incident and that they became close friends. He said that on
    June 5, he spoke to the victim in the morning and that they made plans for the victim to
    come to his home around 7:00 p.m. for dinner. He said the victim taught massage
    therapy that day and called him a few times throughout the day. He said he sent the
    victim a text message around 4:30 p.m. but received no response, which was unusual
    because the victim always responded quickly. He said he sent a second message but
    received no response. Mr. Ross said that he had a bad feeling and that he drove to the
    victim‟s apartment. He said he arrived at 5:30 or 6:00 p.m. and saw police, emergency
    medical personnel, and news reporters.
    On cross-examination, Mr. Ross testified that he did not know what transpired at
    the victim‟s apartment on June 5, 2010. He said that on May 16, he and the victim were
    at the victim‟s apartment for thirty minutes before leaving for Sevier County. He agreed
    it was possible they did not leave the victim‟s apartment until 10:15 a.m. He said that he
    and the victim were at a convenience store in Pigeon Forge when the Defendant called
    the victim‟s cell phone. When asked if it was possible the victim called the Defendant,
    Mr. Ross said that when he left the store, the victim was on the telephone talking to the
    Defendant. Mr. Ross said it would not have surprised him that the victim frequently
    called him after the victim called the Defendant. Mr. Ross agreed that at the time his
    vehicle was vandalized, he had known the victim for about two weeks.
    -3-
    A petition for an order of protection was received as an exhibit. The petition was
    completed by the victim on May 17, 2010, and the victim alleged that the Defendant
    broke into her apartment on May 16, took her friend‟s keys from the kitchen table, and
    vandalized her friend‟s vehicle. The victim stated in the petition that the Defendant said
    “he was going to f- up my friend‟s truck since he was f- me.” The victim also alleged
    that on May 17, the Defendant left a voicemail message on her cell phone stating,
    “Remember what happened to Shawn?” The victim explained that “Shawn was shot by
    his lover‟s husband.” Finally, the victim stated that several months previously when she
    and the Defendant were engaged in “intimate relations,” the Defendant became angry and
    began slapping her across the face, “while he was hurting [her] inside.” The ex parte
    order of protection was served upon the Defendant on May 24. An order to show cause
    why the Defendant should not be held in contempt of court was issued and served upon
    the Defendant on June 10. The motion for an order to show cause was submitted by the
    victim‟s attorney, who alleged that on June 5, the Defendant knocked the victim to the
    ground, climbed on top of her, held her down, choked her, hit her multiple times, and
    dragged her inside her apartment after being confronted by the victim‟s neighbor. The
    motion alleged that after closing the door to the victim‟s apartment, the Defendant killed
    the victim. The petition, ex parte order, and show cause motion were dismissed on
    October 28, 2010.
    The recordings of two 9-1-1 calls placed on the day of the killing were received as
    exhibits and played for the jury. During the first call, a male caller, later identified as
    Stephen Wicks, reported a domestic dispute at the victim‟s apartment and stated the
    victim was being beaten by her boyfriend. Mr. Wicks described the boyfriend‟s clothes,
    noting the man was not wearing a shirt and had gray hair. Mr. Wicks said he approached
    the man and woman because Mr. Wicks heard the woman‟s screams. Mr. Wicks said that
    he asked if “you” were okay and that the man said they were having a dispute. Mr.
    Wicks said the man “was on top” of the woman and looked as though he was choking or
    hitting the woman. Mr. Wicks said the woman continued screaming, and the man closed
    the door to the apartment, at which time it became quiet.
    During the second call, Angela Rivera, the Defendant‟s former spouse, stated that
    police were at her home asking questions about the Defendant earlier in the evening and
    that she had information about the Defendant. Ms. Rivera was crying, and she reported
    that the Defendant called her and said he had “killed his wife.” She said the Defendant
    refused to tell her his location and told the 9-1-1 dispatcher that she was at home. She
    said the Defendant threatened to kill himself because of “what he did.” She said the only
    detail the Defendant provided was that he killed his wife because she threatened to kill
    Ms. Rivera‟s and the Defendant‟s children. Ms. Rivera stated that she told the Defendant
    “not to do anything” and that the Defendant responded he was not going to spend the
    remainder of his life in prison. When asked what the victim threatened to do to the
    Defendant‟s children, Ms. Rivera said the victim threatened to kill Ms. Rivera‟s and the
    Defendant‟s children. She did not know the Defendant‟s whereabouts.
    -4-
    Eric Dilworth testified that in June 2010, he and Jennifer Parsons were the
    victim‟s neighbors at the apartment complex where the killing occurred. He recalled that
    the victim moved into her apartment about one month before her death and that she
    introduced herself not long afterward. He said generally they only spoke in passing but
    recalled one conversation about her husband a few weeks before her death. He said the
    victim told him that she was having problems with her former husband, that she
    described her former husband‟s truck, and that she told Mr. Dilworth to “just keep a
    heads-up.” Mr. Dilworth said the victim did not describe the Defendant.
    Mr. Dilworth testified that on June 5, 2010, at 3:30 p.m., he was walking from his
    apartment to his car when he saw the victim. He said the victim was sitting on the front
    step outside her apartment talking to the Defendant, who was kneeling in front of the
    victim. Mr. Dilworth could not hear their conversation but saw a blue truck parked
    beside the victim‟s car. Mr. Dilworth said that he asked the victim if she was okay in
    order to gauge her demeanor and that the victim waved at him and returned to her
    conversation with the Defendant, although the victim was possibly crying. Mr. Dilworth
    left and returned before 5:00 p.m.
    Mr. Dilworth testified that when he returned home, the blue truck was gone and
    nobody was outside the victim‟s apartment. He said that Ms. Parsons was getting ready
    for work when he arrived, that he began watching television, and that he and Ms. Parsons
    heard a woman screaming, “thuds against the wall,” and loud noises. Mr. Dilworth said
    he opened the front door and looked to his left, the direction from which they heard the
    noises. He said he saw the Defendant on top of the victim, dragging her inside the
    victim‟s apartment while she screamed. He noted that the Defendant was straddling the
    victim‟s body and that the Defendant had his hands around the victim‟s neck. He said
    that he did not recall any particular noises as the Defendant dragged the victim inside her
    apartment but that he remembered the victim‟s kicking her legs.
    Mr. Dilworth testified that the events occurred quickly, that the apartment door
    closed before he could run twenty yards, and that he heard the door lock. He said that
    although he did not hear the victim scream after he left his apartment, he saw the victim
    kicking her legs in an odd manner and noted that her legs were “kicking in the air.” He
    said that as the Defendant dragged the victim, Stephen Wicks walked to Mr. Dilworth‟s
    location. Mr. Dilworth and Mr. Wicks had never met, and Mr. Dilworth said he had
    never seen the Defendant before June 5.
    Mr. Dilworth testified that he banged on the victim‟s apartment door and yelled at
    the Defendant to come outside. Mr. Dilworth said he heard the Defendant say from
    inside the apartment, “Go away. This is a domestic dispute.” Mr. Dilworth recalled Mr.
    Wicks‟s calling 9-1-1. Mr. Dilworth and Mr. Wicks discussed what to do and decided to
    walk around to the back door of the victim‟s apartment. Mr. Dilworth said that when he
    and Mr. Wicks arrived at the rear of the building, Mr. Dilworth saw the Defendant
    -5-
    “walking briskly away” from the building. Mr. Dilworth said he saw the Defendant
    remove a prescription bottle from his pocket and throw it into a pile of brush. Mr.
    Dilworth said he lost sight of the Defendant but seconds later saw the Defendant jump
    over a fence. Mr. Dilworth and Mr. Wicks split up to find the Defendant, and Mr.
    Dilworth said he saw the Defendant climb over the same fence again. Mr. Dilworth lost
    sight of the Defendant again and did not see the Defendant until the blue truck was
    leaving the complex. He said the Defendant wore the same clothes he wore earlier that
    afternoon and was driving the same truck. On cross-examination, Mr. Dilworth stated
    that he refused to talk to the defense investigator.
    Jennifer Parsons testified that on June 5, 2010, the victim had been her and Mr.
    Dilworth‟s neighbor for three to five months. Although Ms. Parsons did not know the
    victim well, the women spoke when they walked their dogs. Ms. Parsons noted the
    victim had a beagle named Sarah. Ms. Parsons said that in the weeks before the killing,
    the victim told her to be on the lookout for a blue truck. Ms. Parsons recalled the
    victim‟s stating that the truck belonged to her former husband and that they had been
    having problems.
    Ms. Parsons testified that on June 5, 2010, between 1:00 and 3:00 p.m., she heard
    a loud noise and banging coming from next door and that she looked out the window and
    saw the Defendant‟s blue truck parked in front of the victim‟s apartment. She described
    the noises she heard as a struggle and said she heard a man and a woman yelling. She
    was home alone at the time but reported what she heard to Mr. Dilworth when he
    returned home. She said that when Mr. Dilworth returned, the victim and the Defendant
    were sitting on the step outside the victim‟s apartment.
    Ms. Parsons testified that later that afternoon, she was upstairs getting ready for
    work when she heard banging coming from the victim‟s apartment. She heard the victim
    screaming and noted the screams were like nothing she had ever heard. She said the
    screams were “scary” and “desperate.” Ms. Parsons said she ran downstairs and was met
    by Mr. Dilworth, who also heard the screams. She said that she and Mr. Dilworth opened
    their apartment door and that Ms. Parsons saw the victim‟s lower body being pulled
    inside the victim‟s apartment. Ms. Parsons said that the victim was not walking, that the
    victim‟s toes were pointing toward the sky, and that the victim‟s heels were dragging the
    ground. She said that she “barely saw” the Defendant but saw enough to know it was the
    Defendant who was dragging the victim inside the apartment and was holding the victim
    by her neck. Ms. Parsons said that she and Mr. Dilworth attempted to help the victim but
    that by the time they reached the victim‟s apartment, the Defendant had closed and
    locked the door. She said that after the door was locked, she no longer heard the victim.
    She recalled that Mr. Dilworth banged on the door but said that nobody answered,
    although she heard sounds of a struggle.
    -6-
    Ms. Parsons testified that on the victim‟s porch, Ms. Parsons saw a purse, makeup
    bag, and massage table. Ms. Parson said she did not see the Defendant‟s blue truck
    parked outside the victim‟s apartment when Ms. Parsons saw the Defendant dragging the
    victim inside. Ms. Parsons said that Mr. Wicks assisted her and Mr. Dilworth and that
    she told Mr. Wicks to call 9-1-1. She said that while Mr. Dilworth banged on the door,
    the Defendant yelled from inside the apartment “to go away, that this was a domestic
    dispute, kind of mind our own business.” She said that after a few minutes, everything
    became “dead quiet.”
    Ms. Parsons testified that she followed Mr. Dilworth and Mr. Wicks to the rear of
    the apartment building but returned to her apartment when Mr. Dilworth told her to
    return. She said that as she walked to her apartment, she saw the Defendant jump twice
    over a fence along an adjoining property and that the Defendant ran in the direction of the
    swimming pool. She said that she decided to run to the victim‟s apartment and that she
    banged on the door and begged the victim to open the door. Ms. Parsons did not see the
    Defendant or the blue truck again.
    On cross-examination, Ms. Parsons testified that Mr. Dilworth did not mention the
    defense investigator‟s wanting to speak with her before the trial. She recalled speaking to
    the Defendant‟s previous attorneys and possibly speaking to an investigator. She said
    that the Defendant was standing in the doorway of the victim‟s apartment at the foyer
    when Ms. Parsons saw the Defendant dragging the victim.
    Stephen Wicks testified that on June 5, 2010, he was visiting his sister-in-law and
    niece, who lived at the apartment complex. He said he and about fourteen other
    individuals were celebrating his niece‟s college graduation. He said that he did not know
    the victim, the Defendant, Mr. Dilworth, or Ms. Parsons before the incident in this case.
    He said that around 5:00 p.m., he retrieved a football from the trunk of his car and that he
    heard a scream. He said he turned to the direction from which the scream came but did
    not see anything unusual. He said, though, he heard a second scream seconds later.
    Mr. Wicks testified that he saw Mr. Dilworth and a partially opened apartment
    door and walked toward the apartment. Mr. Wicks saw a bare foot visible through the
    open doorway and asked if everything was okay. He said that the apartment was dark but
    that he saw a bare back and asked if everything was okay. Mr. Wicks said that it
    appeared the Defendant was leaning over something and that the Defendant turned
    toward him and said, “Yes, it‟s just a domestic.” Mr. Wicks said the Defendant closed
    the door. Mr. Wicks turned around hoping to find someone who knew what was
    happening and saw Mr. Dilworth. Mr. Wicks and Mr. Dilworth talked for a few seconds
    and agreed to call 9-1-1. Mr. Wicks said he did not hear any noises coming from the
    apartment after the door closed.
    -7-
    Mr. Wicks testified that after speaking to the 9-1-1 dispatcher, he rejoined the
    graduation party but returned to the victim‟s apartment because he felt as though
    something was wrong. He said that he walked to the rear of the building and that Mr.
    Dilworth followed him. He said he saw the Defendant leaving the victim‟s apartment
    through what appeared to be a sliding-glass door. Mr. Wicks followed the Defendant and
    saw the Defendant throw something in the weeds, climb over a fence, and run through the
    apartment complex‟s parking lot toward a blue truck. Mr. Wicks chased the Defendant
    but said the Defendant got into the blue truck and drove away.
    Mr. Wicks testified that he returned to look for the item the Defendant threw in the
    weeds. He said that he saw two prescription bottles reflecting the Defendant‟s name.
    Mr. Wicks said he picked up the bottles using a napkin and delivered them to the
    responding police officers.
    On cross-examination, Mr. Wicks testified that Mr. Dilworth was not standing on
    the porch of the victim‟s apartment when he saw the Defendant‟s bare back and the
    victim‟s bare foot. He said it would not have surprised him if the building did not contain
    sliding-glass doors and noted a privacy fence was on the back porch area. He agreed that
    the prescription bottles were empty and that no pills were lying on the ground.
    Angela Childers testified that she lived at the victim‟s apartment complex at the
    time of the incident and that on June 5, 2010, at around 5:00 p.m., she left her apartment
    to attend a party. She said that after she stepped out of her apartment, she saw the
    Defendant running toward a blue truck. Ms. Childers said she “took down” the truck‟s
    license plate number because the Defendant‟s behavior was odd and because someone
    was chasing him. She said the Defendant drove away in a hurry.
    On cross-examination, Ms. Childers testified that she recalled an investigator‟s
    contacting her about the present case and that she had nothing to say to the investigator.
    She agreed, though, she told the investigator that she saw the Defendant run to the truck.
    Debra Stutsman testified that she managed the apartment complex where the
    victim lived and a nearby apartment complex. She said she knew the Defendant because
    he, the victim, and the Defendant‟s two sons from a previous marriage initially moved
    into the nearby apartment complex in February 2009. She recalled the Defendant
    performed a couple of odd jobs while he lived at the complex. She said the victim moved
    out of the unit the victim shared with the Defendant at the nearby complex in March
    2010. Ms. Stutsman said that the victim stayed with friends and that the victim said she
    and the Defendant were having “difficulties.” Ms. Stutsman said the victim rented the
    apartment unit where the killing occurred. Ms. Stutsman understood that the victim and
    the Defendant decided to separate until they worked through their marital issues.
    -8-
    Ms. Stutsman testified that sometime in 2008, the victim rented a two-bedroom
    apartment unit at the nearby complex. She said that in February 2009, she met with the
    victim and the Defendant, who wanted to transfer the lease without having to undergo the
    full application process again. Ms. Stutsman asked “if there would be problems,” and the
    Defendant responded, “N[o], there would not.” She approved the request and said the
    victim, the Defendant, and the Defendant‟s sons moved into the unit and stayed until
    March 2010.
    Ms. Stutsman testified that in the spring 2010, the victim and the Defendant
    requested the victim move into an apartment unit at the complex where the killing
    occurred. The victim signed a lease for a unit, and Ms. Stutsman noted the Defendant‟s
    name was not on the lease. She said the Defendant and his two sons moved into a one-
    bedroom unit at the nearby complex.
    Ms. Stutsman testified that she knew about the break-in at the victim‟s apartment
    in 2010 and that the victim obtained an order of protection. She said the Defendant drove
    a dark blue truck. After learning of the order of protection, Ms. Stutsman said she asked
    a tenant, who collected rent checks, to be on the lookout for the Defendant‟s blue truck.
    Ms. Stutsman said she told the Defendant to stay away from the property. She noted that
    after the victim obtained the order of protection but before the killing, she saw the
    Defendant drive through the apartment complex. She said she called the Defendant, who
    said he was only looking around the area, and told him not to return to the property. She
    said that although she did not see the Defendant on the property afterward, she received
    communications from other people reporting the Defendant‟s presence.
    On cross-examination, Ms. Stutsman testified that she told the defense investigator
    that she would have never thought “anything like this would happen.” She said that
    although she only saw the Defendant on the property once after the victim obtained the
    order of protection, she saw the Defendant‟s truck parked near the pool another time.
    She said she unsuccessfully attempted to find the Defendant.
    Knox County Sheriff‟s Patrolman Jeremy McCord testified that he and additional
    patrolmen responded to the scene after receiving information about a domestic assault in
    progress. He said his responsibility was to talk to anyone who might have been inside the
    victim‟s apartment. He said, though, the doors were locked. He said that his supervisor
    was informed and that he was granted permission to enter the victim‟s apartment.
    Patrolman McCord said that he entered the apartment and that he saw the victim was
    deceased and lying on the floor with something around her neck. He identified
    photographs of the victim‟s apartment, which depicted the living room area where the
    victim was found.
    -9-
    Lenoir City Police Officer Jason Felts testified that on June 5, 2010, at 9:20 p.m.,
    he received information to be on the lookout for a blue Toyota Tacoma truck with a
    specific license plate number. He said that sometime later, he received information that
    GPS tracking of the Defendant‟s cell phone placed him at a particular location. Officer
    Felts responded to the general location and saw the truck drive by his police cruiser.
    Officer Felts said he followed the truck for about three miles, did not observe any traffic
    violations, and initiated a stop after Loudon County Sheriff‟s Patrolman Mike Watkins
    arrived to provide assistance. Officer Felts said that when he activated his blue lights, the
    truck‟s speed increased. He said that the truck‟s speed fluctuated, that the truck failed to
    stop at a traffic light, and that the truck ultimately crashed in a ditch. Officer Felts stated
    that he and Patrolman Watkins approached the truck and told the Defendant to show his
    hands and that the Defendant refused. Officer Felts said that Patrolman Watkins opened
    the driver‟s side door, pulled out the Defendant, and placed him under arrest. Officer
    Felts said the Defendant‟s nose was bleeding when they approached the truck. A video
    recording from Patrolman Watkins‟s vehicle was played for the jury, which was
    consistent with Officer Felts‟s testimony.
    Officer Felts testified that the Defendant did not resist or speak when Patrolman
    Watkins arrested the Defendant. Officer Felts did not attempt to question the Defendant
    but attempted to learn if the Defendant needed medical attention. On cross-examination,
    Officer Felts stated that he thought the Defendant‟s facial injuries were the result of the
    Defendant‟s driving his truck into the ditch.
    Knox County Sheriff‟s Crime Scene Officer Traci Tassey testified that on June 5,
    2010, she processed the scene where the victim was found and the scene where the
    Defendant was apprehended. She said that at a later date, she took photographs of the
    clothes the victim wore at the time of her death. Officer Tassey identified photographs
    she took at the victim‟s apartment, which showed the victim‟s purse, cosmetic bag, and
    massage table on the front porch, the victim‟s lying on the floor just inside the front door
    with a vacuum cleaner cord around her neck, a box cutter and a necklace lying on the
    floor beside the victim, and a muddy shoe print just inside the back door. Photographs of
    the area surrounding where the victim was found showed overturned furniture.
    Officer Tassey testified that she also processed the victim‟s apartment two weeks
    before the victim‟s death when the victim‟s back door had been kicked in by someone.
    She noted that the photographs she took on June 5 reflected the back door had been
    repaired. Photographs taken at the times of the break-in and the killing were received as
    exhibits, and were consistent with Officer Tassey‟s testimony. Photographs of two
    prescription bottles reflecting the Defendant‟s name were received as exhibits.
    Officer Tassey testified that she took photographs at the location where the
    Defendant was apprehended. Photographs of the interior of the Defendant‟s truck
    showed a white shirt with a red substance on it, a checkbook reflecting the Defendant‟s
    -10-
    name, and a ring of keys, including a key reflecting the GEO emblem. Officer Tassey
    identified photographs she took of the Defendant after his arrest. The photographs
    showed the bottom of the Defendant‟s shoes and the Defendant‟s face. The photographs
    showed injuries to the Defendant‟s face and a red substance on the Defendant‟s shirt.
    Photographs of the Defendant‟s hands showed no injuries, but Officer Tassey stated the
    Defendant had injuries that were not visible in the photographs. Photographs of the
    Defendant‟s neck and shoulder showed old bruises and a “minor scratch” on the left side
    of the collar bone.
    On cross-examination, Officer Tassey testified that a Bible was found in the
    Defendant‟s truck, although the item was identified in the police evidence log as a red
    book. She agreed that the red substance on the white shirt found inside the Defendant‟s
    truck was the Defendant‟s blood and that the blood was the result of the Defendant‟s face
    striking the steering wheel or dash when the Defendant‟s truck entered the ditch.
    Knox County Sheriff‟s Detective Dale Dantzler testified that he responded to the
    victim‟s apartment on June 5, 2010, and that he became the officer-in-charge. He had
    previous encounters with the victim and the Defendant and said the officers began
    looking for the Defendant based upon witness statements. He said that three cell phones
    were recovered during the investigation, including a BlackBerry at the victim‟s apartment
    and two phones inside the Defendant‟s truck.
    Tennessee Bureau of Investigation (TBI) Special Agent Jennifer Millsaps, an
    expert in DNA science, testified that she analyzed the victim‟s right and left fingernail
    clippings, the power cord found around the victim‟s neck, and buccal swabs obtained
    from the Defendant. Relative to the left and right fingernail clippings, Agent Millsaps
    detected a mixture of genetic material from two people and concluded that the major
    contributor was the victim and that the minor contributor was the Defendant. She said
    relative to the left-hand fingernail clippings, the probability of another person in the
    Caucasian population having the same profile was one in 601,000. Relative to the right-
    hand fingernail clippings, Agent Millsaps said the probability of another person in the
    Caucasian population having the same profile was one in 6,169,000.
    Agent Millsaps testified that the Defendant‟s DNA was found on the white shirt
    found inside the Defendant‟s truck and the clothing the Defendant wore at the time of his
    arrest. Relative to the power cord, her analysis showed a mixture of genetic material
    from two people. She concluded that the major contributor was the victim, that the
    Defendant was excluded as the minor contributor, and that further information regarding
    the minor contributor was inconclusive because of insufficient or degraded DNA.
    On cross-examination, Agent Millsaps testified that it was common for people
    who lived together to leave behind DNA on items they shared. She agreed she could not
    determine when the DNA was deposited under the victim‟s fingernails.
    -11-
    Knox County Sherriff‟s Detective Angela Daniels testified that she analyzed an
    Alltel cell phone recovered from the Defendant‟s truck and that the phone was registered
    to the Defendant. She said the phone had a Louisiana number and had inactive service
    when it was recovered. She said the phone‟s data was dated between July 16, 2009, and
    March 18, 2010. She said every phone call and text message, except those from the
    phone company, were with someone identified in the contact list as “Donna.” She said
    the communications with Donna included sixty-three incoming text messages, two
    outgoing text messages, and thirty outgoing phone calls. She said that she took
    photographs of each screen on the phone. She said that the two outgoing text messages
    were photographs of a motorcycle and that the majority of the incoming text messages
    were supportive, which included statements such as “I love you.” Photographs of each
    screen reflecting the messages were received as an exhibit.
    On cross-examination, Detective Daniels testified that she did not investigate the
    present case and did not attempt to contact Donna, although the corresponding telephone
    number was saved in the cell phone. She said, though, she learned the billing statements
    for the phone number were addressed to Donna Kingsmill.
    Knox County Sheriff‟s Lieutenant George Edlund testified that he analyzed a U.S.
    Cellular cell phone recovered from the Defendant‟s truck and that he received three days‟
    of text message records from the service provider. Lieutenant Edlund said his
    examination of the phone showed no text messages and no dialed, received, or missed
    telephone calls. He said, though, the records from the service provider showed various
    communications between the Defendant and the victim. He said that the records between
    May 14, 2010, and June 5, 2010, showed 214 telephone calls from the Defendant to the
    victim. The records showed that the victim answered sixty-seven calls and that 147 calls
    were answered by the victim‟s voicemail. The records reflected that the Defendant
    placed a final call to the victim on June 5, at 3:18 p.m., which was answered by the
    victim‟s voicemail. Relative to the victim‟s calling the Defendant, the records showed
    that the Defendant answered forty-one of the victim‟s forty-seven calls. Six phone calls
    were answered by the Defendant‟s voicemail. The records showed that the victim last
    called the Defendant on June 5, at 2:22 p.m., that the Defendant answered the phone, and
    that the conversation lasted seventy-three seconds. Relative to text messages, the records
    showed 160 messages, fifty-seven of which were sent by the victim and 103 of which
    were sent by the Defendant. The victim‟s last message to the Defendant was sent on June
    4, at 10:22 p.m., and the Defendant‟s last message to the victim was June 5, at 1:16 p.m.
    The records did not reflect the substance of the voicemail and text messages.
    On cross-examination, Lieutenant Edlund testified that he did not analyze the
    victim‟s cell phone and that he only examined the Defendant‟s U.S. Cellular phone for
    communications between the Defendant and the victim. Lieutenant Edlund did not know
    how many of the Defendant‟s incoming phone calls were answered by voicemail. He
    -12-
    was unaware the Defendant was involved in a violent collision before the phone was
    recovered by the police and agreed the wreck could have impacted the phone‟s data.
    On redirect examination, Lieutenant Edlund testified that he found images and
    names in the contact list on the phone. On recross-examination, he stated that “low-end”
    phones such as the phone analyzed did not allow for data to be downloaded by the
    computer software used by the sheriff‟s office.
    Knox County Sheriff‟s Officer Edward Wassman, Jr., testified that he examined a
    BlackBerry cell phone recovered near the victim‟s body. He said that his examination
    focused on May 17, 2010, through June 5, 2010, and that he received the victim‟s cell
    phone records from the service provider. Relative to text messages, Officer Wassman
    said the phone contained few messages, although the phone records showed additional
    messages. He said the records showed messages from the Defendant‟s phone that were
    not stored on the victim‟s cell phone. Officer Wassman said the victim‟s phone
    contained a message dated June 2, 2010, at 9:13 p.m., from the Defendant‟s phone, which
    read, “The kids want to know if you got [sic] thar tix.” Officer Wassman said no
    response was stored on the victim‟s phone.
    Officer Wassman testified that the service provider‟s records showed more than
    seventy-six telephone calls between the Defendant‟s and the victim‟s cell phones
    between May 17, 2010, and June 5, 2010. He said that the victim‟s phone showed few
    text messages before June 2. He said that on June 2, at 7:31 p.m., the victim‟s phone
    received a message from someone identified as Tony in the contact list stating, “The
    beginning was good but things fell apart. I blame no one for it because I have everything
    I need now. Dad talks about things. He‟s done it. . . Dad talks about things he‟s done to
    you. It‟s a nightmare. He‟s – he‟s sorry and so am I. –T.” The victim‟s phone received
    a second message from Tony at 7:31 p.m. stating, “I hope you‟re getting better. You can
    text me back anytime. There won‟t be any trouble. We love you. –T.” The third
    message at 8:38 p.m. stated, “Michelle, I don‟t know where we went wrong. Let‟s stop
    fighting and get along. Dad told us stuff, and I know he is really sorry. I really hope this
    can be fixed.”
    Officer Wassman testified that on June 5, 2010, at 4:00 p.m., a text message was
    sent from the victim‟s cell phone to someone identified as Angie Awake Reiki in the
    contact list asking about the victim‟s work schedule and stating the victim was attempting
    to plan her weekend. The incoming response stated that the victim was scheduled to
    finish work no later than 7:00 p.m. At 4:03 p.m., a message was sent from the victim‟s
    phone stating she wanted to be finished with work by 7:00 p.m. because she had things to
    do in the Maryville area. Officer Wassman said the last outgoing communication from
    the victim‟s phone was a telephone call to Angie Awake Reiki at 4:37 p.m. and lasted one
    minute. He noted, though, that the victim‟s phone received a text message at 5:18 p.m.
    from someone identified as Jerry Work in the contact list, which was marked as unread.
    -13-
    Officer Wassman said any incoming communications after 5:18 p.m. were unread or
    unanswered.
    On cross-examination, Officer Wassman testified that communications between
    the Defendant‟s and the victim‟s cell phones occurred before May 16. He agreed the
    victim‟s phone called the Defendant‟s phone numerous times. He agreed that on May 16,
    the Defendant‟s phone called the victim‟s phone at 5:33 a.m. and that the call lasted
    about fifty-three minutes. He said that a second May 16 call was placed from the
    Defendant‟s phone to the victim‟s phone at 6:57 a.m. and lasted about ten minutes and
    that there were no additional calls between the phones until 7:04 p.m. Officer Wassman
    said he was not able to recover the deleted text messages from the victim‟s phone.
    Knox County Sheriff‟s Detective Greg Faulkner testified that he assisted Detective
    Brad Hall during the Defendant‟s police interview. A video recording of the interview
    was played for the jury.
    In the recording, the detectives asked the Defendant to explain the events leading
    to the day‟s events. The Defendant said that he had learned the victim was dating one of
    her clients, that he had confronted her about the relationship, and that they had been
    arguing for a few months. The Defendant recalled previous incidents in which the victim
    was violent toward him and his son Tony. He discussed one incident in which the victim
    entered his and his children‟s apartment at 1:00 a.m. He said the victim kicked in the
    apartment door, held a knife, and attempted to hurt him. He said he took the knife from
    the victim, threw it on the floor, and told the victim she could not treat him this way. He
    recalled a second incident in which the victim blocked the Defendant‟s truck with her car
    and chased the Defendant and Tony on the interstate. The detective asked the Defendant
    why the victim would act violently toward him when the victim was dating another
    person, but the Defendant‟s response was inaudible. The Defendant said that he and the
    victim had been separated since November 2009 and that he paid the initial costs for the
    victim‟s apartment.
    Relative to the events on the day of the killing, the Defendant said he and the
    victim argued about the victim‟s “boyfriend.” He did not recall when he arrived at the
    victim‟s apartment but knew it was daylight. He said that the victim was home when he
    arrived, that the victim allowed him inside the apartment, and that they argued.
    The Defendant stated that a couple weeks before the killing, he went to the
    victim‟s apartment, that he told the victim he loved her, and that the victim told him she
    wanted the Defendant to “get another woman.” Although the Defendant said he did not
    have “another woman” at that time, he did at the time of the interview. The Defendant
    said he wanted to repair the marriage. He said he began but later abandoned divorce
    proceedings because he and the victim wanted to reconcile.
    -14-
    When asked about the day of the killing, the Defendant said he went to the
    victim‟s apartment because he wanted to discuss how to repair the marriage. He said the
    victim, though, was in a relationship with someone else and wanted to “move on” with
    her life. He said the victim wanted a divorce, although he did not. He said the victim
    threatened to kill his son if he did not agree to a divorce. The Defendant said, though,
    this incident occurred two weeks before the killing.
    The detectives again attempted to focus the Defendant‟s attention to the day of the
    killing. When asked what happened at the victim‟s apartment on the day of the killing,
    the Defendant said the victim called him and told him to come to her apartment. He said
    they talked, and he recalled the victim‟s saying, “I can do better than you.” The
    Defendant denied arguing on the front porch. He could not recall what time he arrived or
    how long he stayed at the apartment. The Defendant stated that the day of the killing was
    the first time their arguments became physical. He said that while they argued in the
    kitchen, he slapped and punched the victim in the face. He said later, though, they were
    in the living room. He said that the victim fell on the floor after he hit her and that he had
    never seen the look in the victim‟s eyes. He denied grabbing the vacuum cleaner or
    leaving the apartment through the back door. When asked where he parked his vehicle,
    the Defendant said he parked it “in the other parking lot,” although he did not know why.
    The detectives asked the Defendant if he left the apartment through the back door,
    walked behind the building, walked by additional apartment buildings, jumped over a
    fence, and returned to his truck. The Defendant said that the person who gave that report
    to the detectives lied. The Defendant had no explanation why prescription bottles with
    his name were found behind the victim‟s apartment building but said the victim might
    have taken them. He also said he did not remember if he threw them in the bushes.
    On cross-examination, Detective Greg Faulkner testified that the Defendant was
    coherent, although the Defendant talked about events one month before the killing when
    the detectives asked him about the day of the homicide. Detective Faulkner thought the
    Defendant was attempting to avoid discussing the killing by talking about previous
    events. He denied the Defendant appeared confused during the interview.
    Detective Faulkner testified that he believed the Defendant‟s stating he received a
    telephone call was related to the Defendant‟s learning that the victim was romantically
    involved with a client. He agreed the Defendant filed a complaint for divorce but later
    told his attorney to stop the proceedings. Detective Faulkner agreed that during the
    interview, he and Detective Hall were deceptive about the evidence against the Defendant
    relative to what witnesses saw and fingerprints on the prescription bottles.
    Angela Rivera, the Defendant‟s former wife, testified that she and the Defendant
    married on June 30, 1984, and that they were married fourteen years before divorcing on
    August 23, 1998. She said she and the Defendant had two adult children, Anthony and
    Maria Rivera. She said that she thought the Defendant and the victim married in 1998
    -15-
    but did not know which month. She said that beginning in 2006, the children lived with
    the Defendant and the victim. Ms. Rivera said that in 2010, the Defendant periodically
    called her to discuss his and the victim‟s marital difficulties.
    Ms. Rivera testified that on June 5, 2010, she learned of the victim‟s death from
    the Defendant‟s girlfriend, Lisa Whittaker. Ms. Rivera said the police came to her home
    looking for the Defendant. Ms. Rivera said she attempted to contact the Defendant, but
    he did not answer his cell phone. She said the Defendant called her around 9:20 p.m. and
    initially sounded normal. She said she questioned the Defendant about what he had done
    and told him the police had been to her home and had handcuffed their children. She said
    the Defendant calmly responded, “I did it. I killed Michelle.” She noted the Defendant
    slurred his words and said the Defendant might have been drinking alcohol. When Ms.
    Rivera asked the Defendant why he killed the victim, he said that the victim threatened to
    kill Maria and Anthony, whom they referred to as Tony, and that he could not allow the
    victim to hurt them. Ms. Rivera said that the Defendant threatened to kill himself, that
    she told him the children were traumatized enough, and that the Defendant said, “You
    want to see me spend the rest of my life in jail? It‟s not worth it.” She said that the
    Defendant ended the conversation quickly and that she contacted the police.
    On cross-examination, Ms. Rivera testified that the Defendant‟s mental
    breakdown and his psychiatric hospitalization were factors leading to her and the
    Defendant‟s divorce. She denied, though, knowing about any additional mental health
    hospitalizations. She said that the Defendant sought treatment after they were separated
    and that the Defendant became upset after learning “something was wrong with his brain
    chemistry.”
    Ms. Rivera testified that she had a poor opinion of the victim and that she probably
    told the Defendant‟s previous attorney that the victim “was a b---- from h---.” She said
    the victim was “an evil person,” who destroyed Ms. Rivera‟s relationship with her
    children. Ms. Rivera agreed the victim prevented Ms. Rivera from visiting her children
    when the children lived with the Defendant and the victim. Although she denied the
    police told her that the Defendant had killed the victim, she agreed she might have stated
    in the voicemail she left on the Defendant‟s cell phone that the police said he had killed
    the victim. Relative to the Defendant‟s returning her call, she denied the Defendant said,
    “Yeah, the police said I did it. They‟re my judge, jury, and executioner. They‟ve already
    decided I did it.”
    On redirect examination, Ms. Rivera testified that the Defendant‟s admission to
    the psychiatric hospital was in early 1995 after returning home from their separation. She
    said that the previous admission occurred in Nashville when the Defendant‟s then-
    girlfriend lived in Nashville. Ms. Rivera said the Defendant threatened suicide.
    -16-
    Ms. Rivera testified that she learned the victim had moved out of the apartment the
    victim shared with the Defendant and the children. Ms. Rivera said that after the victim
    moved out of the apartment, Ms. Rivera‟s relationship with her children began to heal but
    that Ms. Rivera had no contact with her children at the time of the trial. Ms. Rivera said
    she was not provided a reason for the children‟s ending their relationship with her, but
    she recalled the Defendant told her that the victim said she was going to kill the children
    and that he was going to commit suicide. Ms. Rivera, though, did not believe the
    Defendant because his threatening suicide became a habit and a means to garner
    attention.
    Dr. Steven Cogswell, an expert in forensic pathology, testified that he performed
    the victim‟s autopsy. He identified numerous photographs taken during his examination.
    Photographs showed a small contusion on the right middle finger, a healing scrape on the
    right arm, and no injuries to the left hand or to the palms of the hands. Photographs also
    showed a vacuum cleaner cord around the victim‟s neck, and Dr. Cogswell noted that the
    cord was around the neck five times and that it was wrapped tight, causing deep
    impressions and blistering “at the margins.” Dr. Cogswell concluded that the victim
    would have been unable to breathe.
    Dr. Cogswell identified a photograph of the victim‟s closed left eye and testified
    the small “pinpoint areas” on the eyelid were petechial hemorrhages. He said the
    hemorrhages were common as a result of manual strangulation because the repeated
    application and release of pressure around the neck affected blood flow. Two
    photographs of retracted eyelids showed hemorrhages inside the right and left eyelids and
    on the scleras. Dr. Cogswell noted that the hemorrhages were associated with the
    pressure-related phenomenon caused by manual strangulation. He said the petechial
    hemorrhages found in the victim‟s eye were not associated with ligature strangulation
    because it was the application and release of pressure that caused the hemorrhages.
    Dr. Cogswell identified photographs of the front right and left shoulder areas and
    the chest, which showed purple bruises. He noted the bruising was more intense on the
    left shoulder. He said that based upon the shape and location, the bruises could have
    represented fingerprints, although he was uncertain. Photographs showed bruises on the
    rear left shoulder area. Dr. Cogswell said that the bruises on the rear shoulder were
    consistent with a hand pressing in the area when considered in conjunction with the
    bruises on the front shoulder areas.
    Dr. Cogswell testified that the internal examination showed a fracture to the
    thyroid horn and hemorrhages to the strap muscles located above the collarbones where
    the power cord was around the neck. He concluded that the lower injury to the muscles
    was associated with the power cord and the upper deep injury to the thyroid horn was
    associated with manual strangulation. He noted that the deep injury compressed the neck
    enough to cause the larynx and the spine to bruise from the significant pressure applied to
    -17-
    the neck. He noted that although the thyroid horn was commonly fractured during
    manual strangulation, it was uncommon to find bruising on the rear of the larynx and at
    the front of the spine.
    Dr. Cogswell testified that the lack of injuries to the victim‟s hands reflected that
    the victim did not struggle while she was strangled and that the lack of “claw marks” on
    the victim‟s neck reflected that the victim did not attempt to remove the power cord from
    her neck. As a result, Dr. Cogswell concluded that the manual strangulation occurred
    first, rendering the victim semiconscious or unable to defend herself and that the ligature
    strangulation was the “final blow.” He said that strangulation was relatively quick but
    took minutes to cause death. He believed the victim struggled for at least one minute.
    Dr. Cogswell concluded based on a degree of medical certainty that the victim‟s cause of
    death was manual and ligature strangulation and that the manner of death was homicide.
    On cross-examination, Dr. Cogswell testified that generally, in cases of ligature
    strangulation, he expected to find a victim‟s DNA under the victim‟s fingernails and claw
    marks on the victim‟s neck caused by attempts to remove the ligature. He said that in
    cases of manual strangulation, he expected to find injuries to an attacker‟s hands or arms
    because the attacker‟s wrists were accessible targets and that a victim usually did not
    have self-inflicted injuries. Relative to the hemorrhages on the victim‟s front neck
    muscles, Dr. Cogswell stated that constant pressure on a muscle caused blood to
    compress out of the muscle and that when a muscle was exposed to alternating pressure
    and release, hemorrhaging resulted. He said that the hemorrhages indicated the ligature
    was tightened and loosened as it was applied. Dr. Cogswell said that the victim weighed
    230 pounds and that he did not note any injury to her feet. He could not speak to the
    attacker‟s state of mind.
    The Defendant testified that he grew up in New Orleans, Louisiana, and lived with
    his grandparents until age twenty. He said that he shared a bedroom with his father in his
    grandparents‟ home. The Defendant stated that his grandfather was the “big boss” in the
    household and that if his grandmother did not obey his grandfather, “it . . . got rough.”
    The Defendant said that his aunt sexually abused him between ages six and nine. He said
    he did not disclose the abuse because his father and grandfather would have been angry
    and because “it would have been my fault.” The Defendant said that he suffered physical
    abuse from his grandfather when the Defendant did not “do things his way.”
    The Defendant testified that he had spinal meningitis as a child and that as a result,
    he had to wear glasses, undergo speech therapy, and relearn how to walk and talk. The
    Defendant said that he worked between ages seven and sixteen unloading produce trucks
    with his grandfather. The Defendant said that he had a ninth-grade education and that he
    learned to read and write at age twenty before the birth of his first child. He stated that he
    married Angela Rivera when he was age eighteen but that after four days, Ms. Rivera left
    and the marriage was annulled.
    -18-
    The Defendant testified that he and Ms. Rivera remarried, that they moved to
    Knoxville when the Defendant was in his late twenties, and that they had two children,
    Tony and Maria Rivera. The Defendant said that he worked for Mitchell Electric and that
    Ms. Rivera attended Pellissippi State Community College. The Defendant said that his
    and Ms. Rivera‟s relationship was good until the Defendant became ill and that he “woke
    up one day . . . in the [psychiatric] hospital.” He said that the marriage deteriorated, that
    he left the family home, and that he lived in his truck for a few months. The Defendant
    said that Ms. Rivera had custody of the children, that he asked to visit the children, and
    that Ms. Rivera beat, hit, and scratched him, resulting in Ms. Rivera‟s arrest.
    The Defendant testified that he met the victim during a two-month, work-related
    trip to Virginia. He said that they began dating, that he returned to Tennessee, and that
    the victim did not accompany him. He stated that he and a coworker rented a room from
    a friend named Amanda. The Defendant said that he helped Amanda move to Nashville
    and that after arriving in Nashville, the Defendant woke up in a psychiatric hospital with
    no recollection of what had occurred.
    The Defendant testified that his next memory was awaking at the victim‟s parents‟
    home in Virginia and not knowing how he got there. The Defendant said that he and the
    victim married while he was in Virginia and that he did not remember the ceremony,
    although he had seen photographs of the wedding. He said they lived in Virginia for
    about one year and moved to New Orleans because the victim fought with her family.
    The Defendant said that the victim‟s minor son lived with his father.
    The Defendant testified that he first knew his and the victim‟s marriage was
    troubled when the victim required the Defendant to sleep lower in bed than the victim in
    order for the victim to hold the Defendant‟s hair. The Defendant identified a photograph
    of a last will and testament in which Donna Kingsmill, a family friend, bequeathed to the
    Defendant a house in New Orleans. He noted he repaired the house after Hurricane
    Katrina. The Defendant also identified the Alltel cell phone as the phone he used to
    contact workmen at Ms. Kingsmill‟s house.
    The Defendant testified that he and the victim lived in Kenner, Louisiana, and that
    their relationship deteriorated when the victim began “crying, acting kind of different,
    didn‟t want me to go to work.” The Defendant said that the behavior lasted four or five
    months and that he lost his job. He said, though, that he thought he could “handle things”
    and did not contact the victim‟s family. He said the victim‟s uncle spoke to the victim on
    the telephone when she became upset. The Defendant said that he and the victim lived
    with his brother in Covington, Louisiana, for two months but left because of tension
    between the Defendant‟s brother‟s wife and the victim. The Defendant noted he had a
    close relationship with his brother‟s wife. The Defendant said that the victim set fire to
    the Defendant‟s brother‟s property and that as a result, they moved to another house in
    1999. The Defendant said that after they moved, the victim did not want the Defendant
    -19-
    to leave the house or spend time with other people, including his brother‟s wife. The
    Defendant said that he stopped meeting his brother‟s wife and that the Defendant‟s
    friends stopped spending time with him.
    The Defendant testified that he and the victim moved to Baton Rouge, Louisiana,
    and that while living there, the victim hit him with a baseball bat. He recalled coming
    home from work one day to find a Wiccan meeting in his living room and said that he
    made everyone leave, that he and the victim argued, and that the victim hit him in the
    face with the bat. The Defendant said that he pushed and slapped the victim away and
    that his right eye was damaged, although he did not call the police. On another occasion,
    the Defendant stated that he arrived home to find the victim in bed with another woman,
    that he and the victim argued, and that the victim hit him in the groin with the bat. He
    said that he did not contact the police, that he went to the hospital, and that he lied when
    he told the doctor he awoke with the injury. The doctor told the Defendant that as a
    result of his injury, he could not father any more children.
    The Defendant testified that the necklace found on the victim‟s living room floor
    belonged to him and that it was a gift from his daughter after Hurricane Katrina. He
    stated that he and the victim moved to Knoxville in 2005 and that his children, who were
    teenagers at the time, had a good relationship with the victim until the children began
    living with the Defendant and the victim in 2006. The Defendant stated that the victim
    did not like the Defendant‟s children living with Ms. Rivera and that the victim became
    unhappy with the Defendant‟s and Maria‟s close relationship. The Defendant said the
    victim thought Maria “[c]ouldn‟t do anything right.”
    The Defendant testified that the victim remained involved with Wicca after
    moving to Knoxville, that he and the victim began attending church, and that the victim
    laughed at the pastor. The Defendant said that the victim bought him a Bible and that he
    discussed the Bible with the victim‟s father. He said the victim became upset and
    accused the Defendant of acting like her parents and told the Defendant to stop speaking
    with her father. The Defendant said that he suggested marriage counseling and that they
    saw two counselors, including church counselor Mack Card. The Defendant said they
    attended seven sessions together. The Defendant said he continued individual sessions
    with Mr. Card and that when the victim learned of the sessions, she did not permit the
    Defendant to attend any future sessions. The Defendant said that during an argument
    about counseling, the victim cut him.
    The Defendant testified that he knew the victim had a two-bedroom apartment unit
    at the nearby complex. He acknowledged that the victim had been dating someone else,
    that he and the victim would “rendezvous” at the unit, and that the Defendant‟s brother‟s
    friends used the unit, as well.
    -20-
    The Defendant testified that Tony witnessed an altercation between the victim and
    the Defendant. The Defendant said that the victim‟s former employee told the Defendant
    the victim was having an affair with a coworker, that the Defendant confronted the victim
    about the affair, that they argued, and that the victim entered the bedroom and slammed
    the door. The Defendant said he took a shower and heard a “big, giant bang.” He said he
    asked Tony to check on the victim, and Tony saw holes in the bedroom wall. The
    Defendant said he did not want his children to witness any arguments and sent them to
    their rooms or outside during an argument.
    The Defendant testified that on one occasion, Tony witnessed the victim break the
    Defendant‟s wine glasses, that the Defendant told Tony to wait outside, and that the
    Defendant and Tony attempted to leave in the Defendant‟s truck. The Defendant said
    that the victim threw herself on the hood of the truck, held on to the moving truck, and
    punched the Defendant in the face through the driver‟s side window. The Defendant said
    that he told Tony, “It‟ll be all right, son,” and that he moved the truck until the victim let
    go. The Defendant said that he and Tony left, that the victim followed them in her car,
    and that he drove to a shopping center and remained there until midnight to avoid
    conflict.
    The Defendant testified that after the victim moved into the apartment where the
    killing occurred, the victim broke in his apartment while he and Tony were sleeping and
    threatened the Defendant and herself with two knives. The Defendant said that he
    “talk[ed] her down” and that the victim threw the knives on the floor and left. He
    recalled overturned furniture in the living room.
    The Defendant testified that the victim had “thrown punches” at Maria and that the
    victim told Maria to move out of the family apartment when Maria was age seventeen.
    He said that he told Maria it might have been better for Maria to leave and that Maria
    lived with friends for a time. The Defendant said that the victim moved out of the family
    apartment around Thanksgiving 2009 and that Tony and Maria lived with the Defendant.
    The Defendant stated that he continued meeting the victim but that the victim was not
    permitted to visit his apartment. He said that the victim came to his apartment on April 4,
    2010, and that he called the police. The Defendant stated that he began taking
    medications between April and June 2010 and that he had difficulty taking the
    medications consistently because he “would come home and my bottles would be empty
    in the bathroom. The pills would be in the toilet.” The Defendant said he received a
    phone call from an unknown man, who said that he knew where the Defendant and Maria
    lived and worked and the cars they drove. The Defendant stated that after the man
    finished speaking, the victim spoke to the Defendant. The Defendant said that he felt
    threatened and reported it to the police but that the police only gave him a “little victim‟s
    card.” The Defendant stated that he informed Ms. Rivera, Maria, and Tony about the
    call.
    -21-
    The Defendant testified that he filed for divorce after hiring attorney John
    Lockridge. The Defendant said that he worked for Mr. Lockridge‟s wife, Mary, and that
    the victim thought the Defendant and Ms. Lockridge were “getting too close.” The
    Defendant stated that he instructed Mr. Lockridge not to file the divorce paperwork
    because the victim told the Defendant that if Mr. Lockridge remained involved, “Mary
    was going to remember for the rest of her life what happens when you get involved in
    somebody‟s life.” The Defendant said that he thought the victim would hurt Mr.
    Lockridge.
    The Defendant testified that he did not know how to delete telephone calls or
    messages from his cell phone and that he did not delete any information from his phone
    before the police collected it.
    The Defendant testified that on June 5, 2010, he walked to his truck to obtain his
    medications but that the medications were gone, although he found his watch in the
    truck‟s glove compartment. He noted the victim was supposed to have the watch. He
    stated that he knew the victim had his keys and medications because she was the only
    person who had the watch. He said that he went to the victim‟s apartment to get the keys
    to his truck and the medications.
    The Defendant testified that on June 5, 2010, the victim called him at 6:40 a.m.
    and again at 2:22 p.m. The Defendant said that when he arrived at the victim‟s
    apartment, she told him to return later and to knock on the back door, that he complied
    with her request, and that she permitted him to enter her apartment when he returned. He
    said that the victim asked him to walk upstairs, that he found her in the bedroom, and that
    she was not wearing clothes. He said that the victim wanted the Defendant to get into
    bed with her but that he refused and insisted she put on clothes. He said he told the
    victim that he was tired of all the fighting, that he loved her, and that he wanted to “live
    in peace.” He said the victim told him that she needed him in her life. He told the victim
    to talk to her father, and the victim became angry and left the room. The Defendant said
    that when he walked downstairs, the victim was standing in the doorway with the front
    door open.
    The Defendant testified that the victim said, “You know who‟s in control of this?
    I am,” that the Defendant walked toward her in an attempt to leave, and that the victim
    came toward the Defendant with a box cutter. The Defendant said that he fell backward
    on the steps and that the victim fell on top of him. He said that as he attempted to push
    the victim away, “all of a sudden just everything . . . went into slow motion. I thought I
    [saw] somebody coming in behind her . . . I just started getting real scared. It just turned
    purple . . . weird and slow. And then it‟s blank.” He said that he saw the victim
    screaming at him but that he perceived it in slow motion. He said that he did not
    remember closing or locking the door and that the next thing he remembered was
    -22-
    standing by his truck, which was parked in an adjacent parking lot. He said he feared the
    victim might break the truck‟s windshield as she had done previously.
    The Defendant testified that his next memory was lying in the grass next to his
    truck at a park and that a little boy woke him because the boy‟s ball rolled between the
    Defendant and his truck. The Defendant said that he thought he was in Louisiana and
    shut his eyes and that it was night when he woke. He stated he sat in his truck because he
    was scared and did not recognize his location. He said that he received a telephone call
    from Ms. Rivera, who told him that the police “broke her door down and threw her on the
    floor” and that the victim was dead. He denied telling Ms. Rivera that he killed the
    victim. The Defendant said that he called his children and “[e]verybody was crying and
    screaming. They didn‟t want me to come home.” The Defendant thought that he called
    Ms. Rivera again and left the park. He said he had no reason to go to Loudon County and
    did not know where he was going at the time.
    The Defendant testified that he did not intend to hurt the victim when he went to
    her apartment. He denied entering the apartment against the victim‟s will or with the
    intent to kidnap, harm, or kill her. He did not remember restraining the victim‟s
    movements or strangling her.
    On cross-examination, the Defendant testified that both he and the victim were
    responsible for the problems in their relationship. He said that on May 16, 2010, the
    victim was not living at the same apartment complex as the Defendant and his children,
    that he knew the victim was dating another man, and that the Defendant did not know
    anything about the man. The Defendant later denied knowing of Mr. Ross‟s existence on
    May 16. Relative to May 16, the Defendant denied kicking in the victim‟s door and did
    not remember speaking with Mr. Ross or the victim.
    The Defendant testified that he did not know when he married the victim or when
    his and Ms. Rivera‟s divorce was obtained and denied that he committed bigamy. The
    Defendant said that the victim rented the two-bedroom apartment while they were going
    through house foreclosure proceedings.
    The Defendant testified that Sean Powell was his former neighbor and that he saw
    Mr. Powell the day before Eric McLean killed Mr. Powell. The Defendant stated that he
    knew the facts of the McLean case but noted that the McLean case was different because
    Mr. McLean was living with Ms. McLean at the time of the killing. The Defendant
    stated that he spent time with the victim periodically at the two-bedroom apartment unit.
    He said that the victim moved out of the family apartment because he told the victim she
    was no longer welcome at the apartment after she returned from visiting her family
    around Thanksgiving 2009.
    -23-
    The Defendant testified that he did not vandalize Mr. Ross‟s car and that he did
    not know Mr. Ross‟s keys were in his truck. The Defendant said that the victim met him
    to tell him about the order of protection and that they continued talking on the telephone
    during the following weeks. The Defendant remembered leaving the victim a voicemail
    message stating, “Remember the situation with Sean? That‟s what you‟ve started here . .
    . That‟s what‟s going to happen.” The Defendant said that the message was a response to
    the threatening telephone call he received from Mr. Ross and the victim. The Defendant
    said that the victim‟s threatening his children created a similar situation to the McLean
    case. The Defendant stated that he was concerned because he did not know what the
    victim told Mr. Ross. The Defendant said that Mr. Ross might have thought the
    Defendant was a horrible person and that Mr. Ross would have been the victim‟s hero.
    The Defendant did not think his message was threatening and said he did not believe in
    hurting people. The Defendant said that his intention was to communicate to the victim
    that a person can get hurt when the person plays with other people‟s lives.
    The Defendant testified that he was slightly upset when he was served with the
    order of protection because he did not understand why the victim obtained it. He noted
    the victim called him late at night and wanted to see him but obtained the order of
    protection. The Defendant said that he and the victim discussed the victim‟s renting the
    apartment where the killing occurred with Ms. Stutsman, that Ms. Stutsman asked the
    Defendant to examine a leaking swimming pool at that apartment complex, and that he
    drove to the complex, examined the pool, and left. He said that Ms. Stutsman went to his
    apartment after the visit and spoke to him about the order of protection. He stated that
    Ms. Stutsman told him to stay away from the victim‟s apartment. He denied stalking the
    victim.
    The Defendant testified that after his conversation with Ms. Stutsman, he
    continued visiting the victim‟s apartment when he wanted and when the victim requested.
    The Defendant said that he and the victim obtained orders of protection against the other.
    He stated that he tried to make the victim happy and to take care of her. The Defendant
    said that he did not know whether his going to the apartment complex to examine the
    pool happened after his discussion with Ms. Stutsman. He said that it was possible he
    went there after the order of protection was served. He stated that he went to the victim‟s
    apartment when she requested, which was usually late at night. He said that when he met
    with the victim, he parked in the “little lower parking lot” rather than in front of the
    victim‟s apartment because the victim “didn‟t want the neighbors to be in our business.”
    He stated that he was not concerned about his truck being seen at the victim‟s apartment
    and that he had nothing to hide. He did not know why the victim wanted to hide the
    Defendant‟s truck.
    The Defendant testified that he did not strangle or kill the victim and that his DNA
    was not found on the victim. He acknowledged that his DNA was found under the
    victim‟s fingernails but said that the photographs taken after his arrest showed no
    -24-
    scratches on his arms or hands. The Defendant admitted, though, struggling with the
    victim on the day of her death. The Defendant acknowledged Mr. Dilworth‟s testimony
    that at 3:30 p.m. on the day of the victim‟s death, the Defendant and the victim were
    talking outside the victim‟s apartment, but he denied the victim had been crying.
    The Defendant testified that after speaking to the victim, he left the apartment
    complex. He acknowledged the testimony of Mr. Dilworth and Ms. Parsons that they
    heard loud noises and said it was possible he and the victim made those noises. The
    Defendant stated that the scream Ms. Parsons heard could have been from the Defendant
    as he fell backward on the stairs. He acknowledged that photographs from the victim‟s
    apartment showed the victim‟s purse, massage chair, and makeup bag on the front step
    outside the victim‟s apartment. The Defendant stated that he knew the victim was
    scheduled to work until 7:00 p.m. He said that he arrived at the victim‟s apartment the
    second time around 4:00 or 5:00 p.m.
    The Defendant testified that he did not know the victim called her mother at 3:57
    p.m. and that the victim‟s mother might have said he was not there at that time. He
    acknowledged that the 9-1-1 call was placed at 5:12 p.m. He said that he walked through
    grass and by the front entrance of the victim‟s apartment before walking to the back door.
    He stated that he wiped his boots inside the door but did not remove them. He denied
    dragging the victim by her throat through the front door and slamming and locking the
    front door. He said that he might have bruised the victim‟s shoulders when he pushed her
    away. He acknowledged that the pattern of bruises on the victim‟s shoulders indicated
    the person stood behind her and stated that the other person he saw in the apartment
    might have inflicted the bruises.
    The Defendant testified that he did not tell Mr. Dilworth, Ms. Parsons, and Mr.
    Wicks that the conflict between the Defendant and the victim was “a domestic dispute”
    and to “[m]ind your own business.” Relevant to Mr. Wicks‟s testimony that nobody was
    outside the front door, the Defendant said Mr. Wicks‟s testimony conflicted with Ms.
    Parsons‟s and Mr. Dilworth‟s assertions that they beat on the front door in an attempt to
    help the victim. The Defendant stated that the witnesses could have been mistaken when
    they identified the Defendant as the man attacking the victim because they had previously
    seen the Defendant working on the property.
    The Defendant testified relative to his police statement that he discussed events
    that occurred one or two years before the victim‟s death. When questioned about his
    failure to mention the box cutter in his statement to the police, the Defendant said, “I
    believe in my statement I was talking about things that happened” one or two years
    previously. He acknowledged that photographs showed a box cutter near the victim‟s
    body. The Defendant said that he was issued a box cutter at work, that he was scheduled
    to work the night the victim died, and that he did not carry his work box cutter away from
    -25-
    work. He denied using the box cutter found in the victim‟s apartment to vandalize Mr.
    Ross‟s car.
    The Defendant testified relative to the recording from the police cruiser that he did
    not remember seeing the police cruiser‟s blue lights but that he recalled someone
    grabbing and pulling him from the truck. He acknowledged the officer‟s testimony that
    the Defendant drove through a traffic light and attempted to accelerate after his truck was
    disabled.
    The Defendant testified that he did not have a romantic relationship with Ms.
    Kingsmill, although they had “pet names” for each other. The Defendant denied
    repairing properties as part of a joint venture with Ms. Kingsmill. The Defendant
    acknowledged that the Alltel cell phone was found in his truck and said that his daughter
    could have erased the data on the phone. The Defendant said he did not remember
    erasing the phone‟s data. The Defendant acknowledged witness testimony showing that
    he called the victim twice as much as the victim called him after the order of protection
    was obtained. The Defendant said he sent text messages to three women during that
    time, which included the victim, a woman known as Sherry, and Ms. Whittaker.
    The Defendant testified that during his police interview, he “couldn‟t even
    understand what [he] was saying.” He denied telling the police that his and the victim‟s
    disputes involved her boyfriend. The Defendant acknowledged he told the police that he
    slapped and punched the victim and that he had “never seen that look in her eyes.” When
    asked whether he omitted from his police statement the events inside the apartment, the
    Defendant said, “I just told them what I know happen[ed].”
    The Defendant testified that he might have told Ms. Whittaker that he did not kill
    the victim and that he was not in Knoxville at the time of the victim‟s death. The
    Defendant said that he “was saying a lot of things about that night” and that the only time
    he remembered hitting the victim was after she hit him with a baseball bat. The
    Defendant agreed he called and sent text messages to the victim stating that he needed
    her. He said that the victim did not return his call but thought she did not call him
    because she was angry with him, not because she was with another man. The Defendant
    acknowledged a voicemail message in which he said,
    You know what my guess is, is that you‟re with him. And my guess is that
    you f------ him, which means you cheated on me, so I‟m going to go ahead
    and quit calling you because I‟ve been trying to make this right . . . it
    would have been nice if you would have told me the truth . . . See you in
    court.
    The Defendant did not remember leaving a message stating that the victim was “playing
    games” with the Defendant, that the Defendant was trying to get well, and that the victim
    -26-
    should tell the Defendant if she was “with him.” The Defendant acknowledged that he
    could have left a message asking the victim to tell the Defendant the truth about her
    relationship and stating, “I can‟t go on until I know this. If you would tell me that you‟re
    sleeping with him . . . if I know that you kissed him or you have been with him, it‟s over
    for me.” The Defendant denied leaving the messages because he was angry the victim
    had a boyfriend, lived in her own apartment, and was “fending for herself.” The
    Defendant stated that he obtained the apartment for the victim and thought that the victim
    paid for her groceries and car with the Defendant‟s money.
    The Defendant testified that he did not know whether the victim had lupus and that
    he unsuccessfully attempted to have her seek treatment. He did not remember telling the
    police that he gave the victim his pain medication because she could not afford
    medication. The Defendant said that the victim stole his depression medication and told
    him the medication made him worse. He stated that on one occasion, the victim called
    him while she was in pain and that he took pain medication to her. He acknowledged the
    autopsy report reflected that the victim‟s drug and alcohol tests were negative.
    The Defendant testified that he did not tell the victim that he wanted a divorce
    throughout the marriage. He said that he discussed divorce when “we were having
    problems with other people” in the relationship. He denied telling the victim that he
    would not have sex with her because she was unclean. He said, though, that they did not
    have sexual relations after the Defendant confronted one of the victim‟s partners, who
    reported having an incurable sexually transmitted disease. The Defendant denied telling
    the victim that he would seek a divorce after his children left home. The Defendant also
    denied telling the victim that his divorce from Ms. Rivera was caused by the Defendant‟s
    adultery.
    The Defendant testified that it was possible he called the victim a “w----” during
    the marriage but denied that he told her to move on with her life. He agreed he told the
    victim that he would help her move into her apartment but that she should not hope for
    reconciliation. The Defendant denied telling the victim that he “had a good mind to slit
    her throat.” He acknowledged that he may have told the victim that their marriage was
    based on a lie, that he wanted to end the marriage because he learned “what she was
    doing,” and that he felt emotionally numb. He agreed he told the victim to move on and
    give him a divorce. The Defendant said that he confronted the victim when he learned
    she was having an affair. He said that he and the victim‟s father and uncle discussed
    issues relative to his and the victim‟s sexual relationship but denied that the discussions
    might demean a woman. The Defendant agreed he told the victim that massage therapy
    was not a legitimate profession and denied accusing the victim of being gay. He
    acknowledged that he might have accused the victim of having an affair with her friend.
    He agreed he told the victim‟s parents things about the victim‟s past. The Defendant
    denied blaming the victim for the loss of their house but said the victim could have
    helped more by working.
    -27-
    The Defendant testified that the victim practiced Wicca but that the victim
    attended church in an effort to network for her business. When asked whether the
    Defendant‟s characterization of the victim‟s mocking the church was accurate, the
    Defendant said the victim was angry about the “way she was raised.” The Defendant
    identified a letter he wrote to the victim “when the Scott situation was going on” and said
    he apologized for slapping the victim after she hit him with the baseball bat.
    On redirect examination, the Defendant testified that on May 16, 2010, cell phone
    records did not reflect the Defendant placed a midday call to the victim. Relative to the
    voicemail message in which he referenced Sean Powell, the Defendant said that when he
    left the message, he was concerned he or Mr. Ross would be hurt. He said he left the
    message after the conversation in which Mr. Ross threatened Maria. The Defendant
    testified that although he did not remember what occurred between his and the victim‟s
    confrontation at the bottom of the stairs and his waking in the park, he did not believe he
    killed the victim.
    The Defendant testified that the victim became angry when denied something she
    wanted. He agreed no DNA or fingerprint analyses were performed on the box cutter.
    He did not recall what he told the police about his abilities to read and write. The
    Defendant said relative to the voicemail messages he left on the victim‟s cell phone, he
    was trying to discuss back taxes the victim owed. He stated that the victim cashed checks
    from massage clients and did not deposit the money. The Defendant said that he
    disparaged the victim‟s profession because on one occasion he saw the victim and a client
    leaving a massage room in which the victim had received flowers, candy, and coffee from
    the client. The Defendant said the victim told him that the client gave the items to her
    and noted the client was “shocked” when the client saw him.
    On recross-examination, the Defendant testified that the victim received gifts from
    her massage clients, including a client he knew as Scott, and that he did not like it. He
    denied being jealous. The Defendant agreed that the victim did not want the Defendant‟s
    children coming to her place of business.
    Tony Rivera2, the Defendant‟s son, testified that when he lived with the Defendant
    and the victim, he spoke to Ms. Rivera sparingly and that Ms. Rivera came to visit them
    periodically. Tony said that he spoke to Ms. Rivera less often when he lived with the
    Defendant but that “it wasn‟t negative.” Tony stated that the victim moved out of the
    family apartment in winter 2009 but visited often. He said that on Valentine‟s Day 2010,
    he, Maria, and the Defendant were leaving their apartment for dinner when the victim
    arrived in her car and motioned for the Defendant to roll down his window. Tony said
    that the victim was angry, that the victim said the Defendant had stated that he no longer
    2
    Many of the witnesses at the trial have the same surnames. To avoid confusion, we refer to the
    Defendant‟s children by their first names.
    -28-
    wanted a relationship, and that the victim said ending the relationship was not an option.
    Tony said that the Defendant began driving away and that the victim followed them for
    several miles until becoming separated in traffic.
    Tony testified that on April 4, 2010, the victim pounded on their apartment doors
    and windows and demanded entry. He identified a photograph of dents in the apartment
    door and said that the victim caused the damage. He stated that the Defendant told him
    not to open the door and to wait until she left. Tony said that the victim called him a
    coward and told him the Defendant‟s tires were slashed. Tony said that in early June
    2010, the Defendant lost weight and became pale. He said the Defendant did not eat and
    spent most of his time in his bedroom.
    Tony testified that on June 2, 2010, he sent a text message to the victim at the
    Defendant‟s instruction. He recalled the message stated that everything could work out
    and that they all could get along. He said, though, that he did not want to get along with
    the victim and that he wanted the victim to leave the Defendant alone.
    On cross-examination, Tony testified that the Defendant and the victim‟s
    relationship was “rocky” toward the end, that they fought, and that the Defendant
    “managed to keep a level head most of the time.” Tony denied knowing that the
    Defendant went to the victim‟s apartment when he was prohibited from being there.
    Tony said that he knew the victim obtained an order of protection against the Defendant
    on May 17, 2010. Tony stated that the Defendant said the victim had threatened Tony‟s
    life and that Tony obtained an order of protection against the victim on May 18. Tony
    said that the Defendant had a “group meeting” regarding the victim‟s order of protection
    and that the group decided to obtain orders of protection against the victim.
    Relative to the Valentine‟s Day incident, Tony testified that the victim did not exit
    her car, cling to the Defendant‟s truck, or hold onto the tailgate. Tony said that the
    Defendant started a romantic relationship with Ms. Whittaker in early 2010 and that Tony
    visited Ms. Whittaker‟s apartment with the Defendant. Tony stated that he was happy the
    Defendant was moving on with his life. Tony said he thought he learned from the
    Defendant in May 2010 that the victim had a boyfriend. He denied knowing the
    Defendant was jealous.
    Tony testified that he knew Sean Powell but denied hearing the Defendant talk
    about Mr. Powell in relation to the victim‟s boyfriend. Tony said that in the days before
    the victim‟s death, the Defendant‟s demeanor and actions did not change. He stated that
    he saw the Defendant the night before the victim‟s death.
    On redirect examination, Tony testified that he obtained the order of protection
    because the Defendant told him that the victim had threatened to kill Tony and Maria.
    Tony said that in early 2010, he was present during an incident in which the victim
    -29-
    jumped on the hood of the Defendant‟s truck to keep him from leaving the apartment
    complex.
    Maria Rivera, the Defendant‟s daughter, testified that she lived with the victim and
    the Defendant for about three years after the couple returned to Knoxville. Maria said
    that the victim criticized her for playing trombone in her high school marching band and
    for participating in the Reserve Officers‟ Training Corps (ROTC) because “girls don‟t do
    that.” Maria said she never witnessed physical violence between the Defendant and the
    victim. Maria identified a photograph of a Hurricane Katrina survivor pendant found at
    the crime scene and said she bought it for the Defendant. Maria said that on June 3,
    2010, she sent the victim a text message at the Defendant‟s request. She thought the
    message stated that “we wanted to work things out, that everything will be okay.” She
    said, though, she wanted the victim to leave them alone. She said that around June 2010,
    the Defendant lost significant weight and muscle tone, did not eat, and was pale.
    On cross-examination, Maria testified that she knew the victim obtained an order
    of protection against the Defendant but that she did not know the victim alleged the
    Defendant kicked in the victim‟s apartment door and vandalized a car. She said that the
    Defendant called a “group meeting” to discuss the order of protection, that the Defendant
    suggested Maria obtain an order of protection against the victim, and that Maria thought
    it was a good idea because the victim had threatened Maria previously. Maria said later,
    though, that the victim had not threatened her life prior to this occasion.
    On redirect examination, Maria testified that on one occasion, the victim said that
    she would have punched Maria in the face if the victim had not feared losing her massage
    license. Maria did not know why the Defendant asked her to send a text message to the
    victim.
    Mary Lockridge testified that she was a bank teller supervisor and that the victim
    and the Defendant banked with her employer. She said that she also worked staging
    houses and that the victim approached her about hiring the Defendant as an assistant.
    Ms. Lockridge stated that the Defendant worked for her as an electrician and plumber,
    moved furniture, and hung draperies. She said that the Defendant assisted in staging
    about 100 homes.
    Ms. Lockridge testified that the Defendant was “a very good husband . . . very
    dedicated to their having a better life[.]” She said that the Defendant and the victim
    purchased a home while the Defendant worked for her, that the Defendant held another
    job, and that the Defendant performed maintenance work at her condominium. She
    stated that the Defendant was generally alert, attentive, efficient, and punctual. She said
    that around June 2010, the Defendant became unkempt, erratic, distant, and unfocused,
    that he went to the wrong jobs sites multiple times, and that he damaged furniture. She
    -30-
    said that the Defendant was confused regarding when he was paid for work performed,
    that he lost his home, and that she thought the Defendant was having financial difficulty.
    Ms. Lockridge testified that she and the Defendant discussed his taking
    medications and that she asked about the types of medication he took because he had lost
    a significant amount of weight. She said she encouraged the Defendant to obtain a
    divorce. She recalled one occasion during which she and the Defendant were traveling to
    a job site and noted the victim called him fifty times. Ms. Lockridge said that the victim
    sent the Defendant a text message threatening to kill the Defendant and Ms. Lockridge,
    that Ms. Lockridge saw the message, and that Ms. Lockridge took the threat seriously.
    Ms. Lockridge said she feared for the Defendant‟s safety.
    Ms. Lockridge testified that her husband was a divorce attorney and that Ms.
    Lockridge promised to advance the Defendant money in exchange for the Defendant‟s
    meeting with Mr. Lockridge to discuss a divorce because “things were getting very
    scary.” She noted that the victim usually picked up Tony from work but that the victim
    called Ms. Lockridge asking her to send the Defendant to pick up Tony. Ms. Lockridge
    said that Tony did not live with the victim at the time.
    On cross-examination, Ms. Lockridge testified that the victim sent the threatening
    text message in April 2010. She said that she and the Defendant discussed his
    medications in May 2010 and that the Defendant did not mention he was taking
    medications when he began acting erratically.
    John Lockridge, the Defendant‟s divorce attorney, testified that he met the
    Defendant when the Defendant worked for Ms. Lockridge. Mr. Lockridge stated that the
    Defendant retained him to file a complaint for divorce and that Mr. Lockridge filed the
    complaint in May 2010. Mr. Lockridge said that sometime after he filed the complaint,
    the Defendant came to his office parking lot at 8:30 a.m., that the Defendant was upset
    and agitated, and that the Defendant wanted Mr. Lockridge to dismiss the divorce
    proceedings.
    Dr. Kathryn Smith, an expert in psychological evaluations, testified that she
    evaluated the Defendant for approximately nine hours. She said she conducted a clinical
    interview, reviewed the Defendant‟s medical and police records, observed his behavior,
    and spoke with him and family members about his mental state at the time of the victim‟s
    death. She stated that at time of her evaluation, the Defendant was taking medications
    administered by the jail. She said that she evaluated the Defendant using four
    standardized instruments and concluded that the Defendant had a major recurrent
    depressive disorder, which meant lifelong, severe, and repeated episodes of depression
    without psychosis. She also diagnosed the Defendant with post-traumatic stress disorder,
    alcohol dependence that was in remission, avoidant personality disorder, and depressive
    personality disorder. Dr. Smith noted that she could not determine whether the
    -31-
    Defendant was suffering from post-traumatic stress disorder at the time of the victim‟s
    death or whether the Defendant developed it after the killing. Dr. Smith concluded that
    the Defendant‟s symptoms were genuine and that his symptom pattern showed a genuine
    psychological disorder.
    Dr. Smith testified that she concluded that the Defendant was suffering from
    severe mental illness, severe major depression, and a panic disorder for at least two
    weeks before the killing and that these conditions were cumulative to the Defendant‟s
    underlying personality disorders. She said that two weeks before the victim‟s death, the
    Defendant sought treatment from Dr. Antonio Ramos at the suggestion of Ms. Lockridge.
    Dr. Ramos reported to Dr. Smith that the Defendant was depressed, tearful, sad, not
    sleeping, anxious, and unable to “get his thoughts straight.” Dr. Smith said that Dr.
    Ramos prescribed the Defendant two antidepressants and that pharmacy records showed
    the Defendant obtained both prescriptions. Dr. Smith said the Defendant‟s family told
    her that the Defendant had stopped eating, had lost weight, and had been “preoccupied
    with threats, perceived threats to his kids and their safety[.]” She stated that the
    Defendant was not functioning or thinking rationally and noted that antidepressants took
    four to six weeks to become effective. She concluded that at the time of the victim‟s
    death, the Defendant was incapable of forming intent.
    Dr. Smith testified that she would not describe the Defendant‟s police interview as
    a coherent discussion. She said that the Defendant was fidgety and restless, did not make
    eye contact with the detectives, put his head down, and did not communicate coherently.
    She noted the detectives appeared confused and did not know about what the Defendant
    was talking. She said that the Defendant had a distorted sense of time when discussing
    the events and that the Defendant did not look well.
    On cross-examination, Dr. Smith testified that in her opinion, the Defendant
    lacked the capacity to premeditate the victim‟s death because of his mental illnesses. She
    said that she was not asked to consider whether the Defendant was incapable of any
    premeditated act and could not conclude that the Defendant lacked the capacity to
    premeditate “anything in his life.” She stated that if the Defendant lied about his
    previous history, it might affect the outcome of her evaluation but that she also relied
    upon other records and interviews with his family to reach her conclusions.
    Dr. Smith testified that the Defendant‟s major depressive disorder alone might
    have rendered him incapable of acting knowingly or with premeditation. She said that
    due to the severity of the Defendant‟s mental illnesses and his sleep deprivation, he was
    “not thinking straight.” Dr. Smith said that the information she gathered from the
    Defendant‟s family and friends was inconsistent with a person who refused to accept the
    end of his marriage. She said that she spoke with Ms. Lockridge, Tony, Maria, and Mr.
    Card, the church counselor, and that she reviewed an incident report from the sheriff‟s
    department, the recording of the Defendant‟s police interview, and a portion of his
    -32-
    medical records. Dr. Smith said that she was unable to obtain records related to the
    Defendant‟s childhood meningitis diagnosis and suicide attempt and agreed that the
    Defendant‟s history before the time of the victim‟s death was uncorroborated. She
    agreed that if the Defendant lied about his history, her conclusions were wrong. Dr.
    Smith said that she did not interview the Defendant‟s brother or Ms. Rivera. Dr. Smith
    stated that if the Defendant had other therapy records, it might have been important to her
    evaluation.
    Dr. Smith testified that she spent three hours administering tests and six hours
    interviewing the Defendant. She said that she evaluated the Defendant eight months after
    his arrest, that she knew he had been charged with first degree murder, that the Defendant
    knew Dr. Smith had been retained by his attorney, and that he was very cooperative. Dr.
    Smith stated that she was not asked to determine the Defendant‟s competency to stand
    trial. Dr. Smith acknowledged that she reviewed records from Dr. Edgar Jessee relative
    to a 2006 “marital situation.” Dr. Smith said that Dr. Jessee did not note any report of
    abuse or threats from the victim and that Dr. Jessee‟s notes were sparse. Dr. Smith stated
    that Mr. Card‟s pastoral records from 2008 to 2010 did not note abuse or violence. Dr.
    Smith said that during marital therapy, the victim reported not wanting to have a physical
    relationship with the Defendant. However, Dr. Smith said that during individual therapy
    sessions, the Defendant stated the victim attempted to have sexual relations with him
    when he attempted to become independent from the victim. Dr. Smith stated that Mr.
    Card thought the Defendant‟s “departure [from the victim] was imminent” and that the
    Defendant did not report depression or anxiety to Mr. Card.
    Dr. Smith testified that Dr. Ramos‟s May 21, 2010 records reflected that the
    Defendant reported sexual performance difficulties and that the Defendant‟s testosterone
    level, which had been low previously, was evaluated as a possible source of the
    depression. Dr. Smith said she knew that four days before the Defendant‟s doctor‟s
    appointment, the Defendant was accused of kicking in the victim‟s door and vandalizing
    a car. Dr. Smith said Dr. Ramos‟s records reflected that the Defendant was crying,
    depressed, anxious, and unable to think. She said, though, the records showed that the
    Defendant denied being suicidal or homicidal or having hallucinations or delusions.
    Dr. Smith testified that the Defendant was more articulate and expressive than she
    expected but that being well-spoken was not inconsistent with the Defendant‟s self-
    reported learning disabilities. She said the Defendant reported having depression, feeling
    hopeless, and having suicidal ideations. Dr. Smith said that the Defendant showed many
    symptoms, although he had been taking strong antidepressants while in jail. She said that
    the Defendant reported having nightmares about the victim in which the victim beat or
    stabbed him and that the Defendant was afraid the victim “was . . . waiting to get him.”
    Dr. Smith said the Defendant felt ashamed for tolerating the victim‟s abuse and blamed
    himself for staying in the relationship and allowing “all the things that happened with his
    kids.”
    -33-
    Dr. Smith testified that she had not reviewed the autopsy report and that it seemed
    irrational for a person to strangle another person “[t]hat much.” She stated that the
    Defendant‟s report of the victim‟s escalating violence and his belief the victim would not
    “let him go” was not inconsistent with the victim‟s living in her own apartment. She said
    that the Defendant continued giving the victim money and that the Defendant‟s decision
    to stop the divorce proceedings may have been an attempt to appease the victim. Dr.
    Smith agreed the Defendant had no reliable memory of the victim‟s death and said she
    did not trust the timing of the Defendant‟s memories. Dr. Smith said she spoke to Ms.
    Lockridge relative to the Defendant‟s change in work performance. Dr. Smith said
    Tony‟s report of the Defendant‟s normal behavior in the days before the victim‟s death
    was not surprising. She said Tony and Maria reported not paying close attention to the
    Defendant before the victim‟s death.
    Dr. Smith testified that Mr. Dilworth‟s testimony relative to the Defendant‟s
    dragging the victim inside the apartment, locking the door, and telling Mr. Dilworth it
    was a domestic dispute might suggest the Defendant was capable of deliberate acts. She
    said, though, the conduct did not exclude the possibility that the behavior was heavily
    influenced by depression. She said she was not aware of the Defendant‟s parking away
    from the victim‟s apartment unit, the Defendant‟s flight from the victim‟s apartment
    complex, or the Defendant‟s throwing prescription bottles into the bushes. Dr. Smith said
    the behavior did not sound rational. She stated that erasing data on a cell phone might
    indicate “a mindfulness of what he was doing and trying to hide his tracks.” Dr. Smith
    said that she knew the Defendant left the victim‟s apartment through the back door,
    walked to the tree line, jumped over a fence, ran to his truck, and quickly left the scene.
    She said these facts indicated that the Defendant knew where he parked his truck and
    intended to leave the area.
    Dr. Smith testified that she did not review the recordings of the 9-1-1 calls.
    Relative to the Defendant‟s calling Ms. Rivera and reporting he had killed the victim, Dr.
    Smith said that she did not know if the Defendant‟s statements indicated consciousness of
    guilt “or just awareness of an act.” Dr. Smith did not review text or voicemail messages
    the Defendant sent the victim after the order of protection was issued. Dr. Smith said that
    she vaguely recalled the McLean case and that she did not know Sean Powell was the
    Defendant‟s former neighbor. She said that it might have been important to know if the
    Defendant had referenced Mr. Powell to the victim.
    Dr. Smith testified that the validity of the mental health evaluations was dependent
    on her observations and the Defendant‟s self-report. Relative to whether the Defendant
    was malingering, Dr. Smith said that the Defendant was classified as “genuine
    responder.”
    -34-
    Dr. Smith testified that she had performed between 200 and 250 clinical forensic
    evaluations on criminal defendants, that about twenty evaluations were for the purpose of
    determining whether a defendant had a diminished capacity, and that two were first-
    degree murder cases. Dr. Smith said that she did not utilize the most widely accepted
    personality test in this case because the Defendant did not have the requisite eighth-grade
    reading level. Relative to other types of tests with built-in validity scales to determine
    malingering, she stated those tests were problematic because the Defendant‟s first
    language was not English and because one test had a high rate of false positives.
    Dr. Smith testified that post-traumatic stress disorder might have been caused by
    one acute trauma or by the cumulative effect of many traumas. She said that the
    Defendant‟s traumas were caused by living with the victim in his adulthood and by his
    grandfather‟s abuse in his childhood. She stated that people suffering from post-
    traumatic stress disorder did not always experience flashbacks. She said that it was too
    simplistic to conclude that the Defendant would have avoided the victim if he suffered
    from post-traumatic stress disorder and that the entire situation had to be considered. On
    redirect examination, Dr. Smith stated that a person with the Defendant‟s level of mental
    illness could function normally in the person‟s everyday life.
    Upon this evidence, the Defendant was convicted of first degree felony murder
    committed during the attempt to perpetrate of a kidnapping, first degree felony murder
    committed during the attempt to perpetrate a burglary, second degree murder, especially
    aggravated burglary, and aggravated assault relative to the day of the killing. The jury
    acquitted the Defendant of especially aggravating kidnapping relative to the day of the
    killing. The jury also acquitted the Defendant of aggravated burglary, burglary of a
    vehicle, and vandalism associated with the May 16, 2010 incident. The trial court
    imposed an effective life sentence after merging the convictions for second degree
    murder and felony murder committed during the attempt to perpetrate a kidnapping with
    the conviction for felony murder committed during the attempt to perpetrate a burglary.
    This appeal followed.
    I
    Sufficiency of the Evidence
    The Defendant contends the evidence is insufficient to support his conviction for
    felony murder committed during the attempt to perpetrate a kidnapping because he was
    acquitted of especially aggravated kidnapping, the independent kidnapping charge. The
    Defendant also contends that the evidence is insufficient relative to the felony murder
    committed during the attempt to perpetrate a burglary conviction because the trial court
    failed to provide the jury with an instruction pursuant to State v. White, 
    362 S.W.3d 559
    (Tenn. 2012). Relative to the kidnapping-related felony murder conviction, the State
    responds that inconsistent verdicts are permitted and that the evidence is sufficient.
    -35-
    Relative to the burglary-related felony murder conviction, the State responds that a White
    instruction was not required and that the evidence is sufficient.
    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.      Kidnapping-Related Felony Murder
    As relevant here, first degree felony murder is “[a] killing of another committed in
    the perpetration of or attempt to perpetrate any . . . kidnapping[.]” T.C.A. § 39-13-
    202(a)(2) (2014). “Kidnapping is false imprisonment as defined in § 39-13-302, under
    circumstances exposing the other person to substantial risk of bodily injury.” 
    Id. § 39-13-
    303(a) (2014). “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.” 
    Id. § 39-13-
    302(a). Relative to felony murder, the State must prove beyond a
    reasonable doubt that the “intent to commit the underlying felony . . . exist[ed] prior to or
    concurrent with the commission of the act causing the death of the victim.” State v.
    Buggs, 
    995 S.W.2d 102
    , 107 (Tenn. 1999). “Proof that such intent to commit the
    underlying felony existed before, or concurrent with, the act of killing is a question of
    fact to be decided by the jury after consideration of all the facts and circumstances.” 
    Id. The record
    reflects that the Defendant was indicted for felony murder “during the
    attempt to perpetrate a Kidnapping.” The trial court instructed the jury at the conclusion
    of the proof that in order to find the Defendant of the offense, it had to find that the
    Defendant unlawfully killed the victim during “the perpetration of or the attempt to
    -36-
    perpetrate the alleged Kidnapping” and that the Defendant intended to commit the alleged
    kidnapping.3
    Relative to the especially aggravated kidnapping charge, the indictment alleged
    that the Defendant “unlawfully and knowingly confined [the victim] so as to interfere
    substantially with the liberty of [the victim], and further that said acts were accomplished
    with a deadly weapon[.]” The trial court instructed the jury at the conclusion of the proof
    that in order to find the Defendant guilty of especially aggravated kidnapping, it had to
    find that the Defendant knowingly confined the victim so as to interfere substantially
    with her liberty and that the confinement was accomplished with a deadly weapon or by
    the displaying of any article used to lead the victim to reasonably believe it was a deadly
    weapon. The court also instructed the jury that it was required to find beyond a
    reasonable doubt that the confinement exceeded that necessary to accomplish first degree
    murder, especially aggravated burglary, and aggravated assault and that the confinement
    was not essentially incidental to committing those offenses. The trial court instructed the
    jury on the lesser included offenses of aggravated kidnapping, kidnapping, and false
    imprisonment.
    The jury‟s verdict reflects relative to the felony murder that it found beyond a
    reasonable doubt that the Defendant unlawfully killed the victim during the perpetration
    of an attempt to commit a kidnapping. Relative to especially aggravated kidnapping, the
    jury was not instructed regarding attempt to commit a kidnapping and was unable to find
    beyond a reasonable doubt that the Defendant committed especially aggravated
    kidnapping, aggravated kidnapping, kidnapping, and false imprisonment. A finding of
    not guilty relative to especially aggravated kidnapping and the instructed lesser included
    offenses did not prevent the jury‟s finding the Defendant killed the victim during an
    attempted kidnapping. As a result, we cannot conclude that the evidence is insufficient to
    support the kidnapping-related felony murder conviction simply because the jury found
    the Defendant not guilty of especially aggravated kidnapping.
    In any event, even if the jury concluded the Defendant committed the killing
    during the perpetration of a kidnapping, the Defendant would not be entitled to relief.
    Our supreme court recently stated that “inconsistent verdicts of multiple charges against a
    single defendant may take the form of an inconsistency between a conviction and an
    acquittal.” State v. Davis, 
    466 S.W.3d 49
    , 72 (Tenn. 2015). In Davis, the court noted
    that a jury is permitted to convict a defendant of felony murder and acquit the defendant
    3
    We note that the language “during the perpetration of a kidnapping” included in trial court‟s jury
    instruction was not included in the indictment. The indictment only alleged that killing occurred during
    the attempt to commit a kidnapping. “An instruction to the jury that they consider a charge against the
    defendant not covered by the indictment is clearly erroneous.” Church v. State, 
    333 S.W.2d 799
    , 809
    (Tenn. 1960). We conclude, though, that any error was harmless beyond a reasonable doubt because the
    State was held to a higher burden and because, as we discuss below, the evidence sufficiently showed the
    Defendant killed the victim during the perpetration of a kidnapping.
    -37-
    of the underlying felony. 
    Id. Therefore, a
    “defendant is not entitled to relief from the
    felony murder conviction in this situation as long as the evidence [is] sufficient to support
    [the] murder conviction.” Id.; see Wiggins v. State, 
    498 S.W.2d 92
    , 94 (Tenn. 1973)
    (“This Court will not upset a seemingly inconsistent verdict by speculating as to the
    jury‟s reasoning if we are satisfied that the evidence establishes guilt of the offense upon
    which the conviction was returned.”). The court “emphasize[d] that „[t]he validity
    accorded to [inconsistent] verdicts recognizes the sanctity of the jury‟s deliberations and
    the strong policy against probing into its logic or reasoning, which would open the door
    to interminable speculation.‟” 
    Davis, 466 S.W.3d at 77
    (quoting United States v. Zane,
    
    495 F.2d 683
    , 690 (2nd Cir. 1974)).
    The Defendant‟s argument is based on the notion that because the jury acquitted
    him of especially aggravated kidnapping, the evidence is insufficient to support his
    conviction for felony murder committed during the attempt to perpetrate a kidnapping.
    We disagree and conclude that sufficient evidence exists from which the jury could have
    found beyond a reasonable doubt that the killing was committed during the attempt to
    perpetrate a kidnapping. See 
    Davis, 466 S.W.3d at 72
    .
    In the light most favorable to the State, the evidence reflects that Mr. Dilworth and
    Ms. Parsons, the victim‟s neighbors, heard sounds of struggle and a woman screaming.
    Upon investigation, the couple saw the Defendant on top of the screaming victim and
    dragging the victim inside her apartment. Mr. Dilworth testified that the Defendant was
    straddling the victim‟s body, that the Defendant‟s hands were around the victim‟s neck,
    and that the victim was kicking her legs in the air. Ms. Parsons testified that she saw the
    Defendant pulling the victim‟s lower body inside the victim‟s apartment, that the
    Defendant was holding the victim by her neck, and that the victim‟s feet were dragging
    the ground. Mr. Wicks testified that he saw a bare foot through the victim‟s partially
    open door and the Defendant leaning over something. Before Mr. Dilworth, Mr. Wicks,
    and Ms. Parsons could render aid to the victim, the Defendant pulled the victim inside her
    apartment and closed and locked the door. The Defendant told Mr. Dilworth that they
    were having a domestic dispute and to go away. Although the victim‟s screams ceased
    by the time the Defendant locked the front door, Ms. Parsons and Mr. Dilworth heard
    sounds of a struggle. The victim was later found on the living room floor with a vacuum
    cleaner cord wrapped five times around her neck, and the cause of death was manual and
    ligature strangulation. The victim‟s massage table, purse, and cosmetic bag were found
    on the front step outside the victim‟s apartment. As a result, the evidence is sufficient for
    a jury to find beyond a reasonable doubt that the Defendant knowingly removed the
    victim from her front porch into her apartment and confined her inside her apartment
    where he strangled her with his hands and with a vacuum cleaner cord until she died.
    The Defendant is not entitled to relief on this basis.
    -38-
    B.     Burglary-Related Felony Murder
    As relevant here, first degree felony murder is “[a] killing of another committed in
    the . . . attempt to perpetrate any . . . burglary[.]” T.C.A. § 39-13-202(a)(2). “A person
    commits burglary who, without the effective consent of the property owner . . . enters a
    building and commits or attempts to commit a felony, theft or assault[.]” 
    Id. § 39-14-
    402(a)(3) (2014). “A person commits assault who . . . [i]ntentionally or knowingly
    causes another to reasonably fear imminent bodily injury” or who “[i]ntentionally,
    knowingly, or recklessly causes bodily injury to another[.]” 
    Id. § 39-13-
    101(a)(1), (2)
    (2010) (amended 2013). Especially aggravated burglary “is [b]urglary of a habitation or
    building other than a habitation” and “[w]here the victim suffers serious bodily injury.”
    
    Id. § 39-14-
    404(a)(1)-(2); see 
    id. § 39-14-402(a)(3).
    A defendant is guilty of criminal
    attempt
    who acting with the kind of culpability otherwise required for the offense . .
    . [a]cts with intent to complete a course of action or cause a result that
    would constitute the offense, under the circumstances surrounding the
    conduct as the person believes them to be, and the conduct constitutes a
    substantial step toward the commission of the offense.
    
    Id. § 39-12-101(a)(3)
    (2014).        A defendant‟s “entire course action [must be]
    corroborative of the intent to commit the offense” and “completion of the offense is not a
    defense.” 
    Id. § 39-12-101(b),
    (c) (2014).
    In his brief, the Defendant states that his conviction for felony murder committed
    during the perpetration of especially aggravated burglary cannot stand because the jury
    was not provided a White jury instruction. We note that the felony murder conviction as
    stated in the indictment was based upon the attempt to perpetrate a burglary, not
    especially aggravated burglary, and the Defendant correctly notes that the only additional
    burglary-related charges were indictment Counts 5 and 7. Count 5 charged that on June
    5, 2010, the Defendant “unlawfully and knowingly enter[ed] the habitation of [the victim]
    without her effective consent, not open to the public, and did commit an Assault and did
    cause serious bodily injury . . . in violation of T.C.A. 39-14-404.” The jury convicted the
    Defendant of especially aggravated burglary as charged in Count 5. Count 7 charged that
    on May 16, 2010, the Defendant “did unlawfully and knowingly enter the habitation of
    [the victim] without her effective consent, not open to the public, and did commit Theft,
    in violation of T.C.A. 39-14-403.” The jury, however, acquitted the Defendant of
    aggravated burglary as charged in Count 7 and of the remaining counts associated with
    the May 16, 2010 events.
    The Defendant argues in his brief that because the trial court permitted a joint trial
    of two burglaries, one of which was not connected to the homicide, and because “there
    was no place for the jury to notify the court as to what incident it considered in the
    -39-
    finding of guilt” relative to the felony murder conviction “it cannot be said that it is clear
    WHICH burglary they used to convict” him of felony murder. We disagree. The
    language of the indictment clearly states the alleged date of the offense relative to Count
    5, especially aggravated burglary, was June 5, 2010, which was the date of the homicide.
    Likewise, the language of the indictment relative to Count 7 states that the aggravated
    burglary allegedly occurred on May 16, 2010, and involved a theft. As a result, we reject
    the Defendant‟s claim that it is unclear which burglary the jury relied upon in finding the
    Defendant guilty of felony murder during the perpetration of an attempted burglary.
    The Defendant also asserts that the lack of an instruction pursuant to State v.
    White, “calls into serious question the felony murder conviction” because the “facts in
    evidence were capable of more than one interpretation.” We disagree.
    In White, our supreme court delineated a new method for determining whether
    dual convictions for a kidnapping-related offense and another felony offense are
    permissible pursuant to due process principles. The court determined that a separate due
    process inquiry was unnecessary and concluded that a proper jury instruction in
    conjunction with an appellate review of sufficiency of the evidence satisfied due process
    principles. 
    Id. at 577-78;
    see State v. Cecil, 
    409 S.W.3d 599
    , 609 (Tenn. 2013) (“Only
    when the jury is properly instructed can appellate review of the sufficiency of the
    convicting evidence satisfy the due process safeguard.”). The White instruction requires
    a trial court to provide a jury instruction “defin[ing] the key element [of the kidnapping-
    related offense] – the substantial interference with the victim‟s liberty – as requiring a
    finding by the jury that the victim‟s removal or confinement was not essentially
    incidental to the accompanying felony offense.” 
    White, 362 S.W.3d at 580
    .
    Subsequent cases applying the White instruction have involved a kidnapping-
    related offense in conjunction with another felony offense, most notably robbery, assault,
    and rape. See State v. Rico R. Williams, No. W2011-02365-CCA-RM-CD, 
    2014 WL 60967
    (Tenn. Crim. App. Jan. 7, 2014) (analyzing the White instruction relative to
    charges for especially aggravated kidnapping and aggravated robbery); State v. Glenn
    Lydell McCray, No. M2011-02411-CCA-R3-CD, 
    2013 WL 6408753
    (Tenn. Crim. App.
    Dec. 6, 2013) (analyzing the White instruction relative to charges for especially
    aggravated kidnapping and aggravated assault); State v. Jonathan Kyle Husle, No.
    E2011-01292-CCA-R3-CD, 
    2013 WL 1136528
    (Tenn. Crim. App. Mar. 19, 2013)
    (analyzing the White instruction relative to charges for especially aggravated kidnapping
    and aggravated rape). Therefore, the purpose of the White instruction is to ensure the
    confinement or removal associated with a kidnapping-related charge is not merely
    incidental to accomplishing another felony, such as robbery, assault, and rape. See State
    v. Alston, 
    465 S.W.3d 555
    , 562 (Tenn. 2015) (“We have also identified certain crimes –
    such as robbery, rape, and assault – that, when charged along with kidnapping, would
    warrant [the White] instruction.”).
    -40-
    The application of the White instruction has been limited to cases involving a
    kidnapping-related charge and some additional felony. Recently, our supreme court
    considered whether the White instruction extended to cases involving kidnapping and
    aggravated burglary. See 
    Alston, 465 S.W.3d at 562-64
    . In Alston, the court declined to
    extend the application of the White instruction to cases involving kidnapping and
    aggravated burglary. 
    Id. at 564.
    The court reasoned that aggravated burglary is a crime
    against property that requires a showing of an unauthorized entry or concealment within a
    habitation with the intent to commit or the commission of a theft, assault, or felony. 
    Id. at 563.
    The court distinguished burglary from robbery, rape, and assault in that these
    crimes against persons “inherently involve the confinement of a victim.” 
    Id. The court
    concluded that “the concerns . . . implicated when kidnapping is charged along with the
    offenses or robbery, rape, and assault, which are crimes against persons, are not
    implicated when a defendant is charged with kidnapping along with the offense of
    aggravated burglary.” 
    Id. at 564.
    Therefore, we decline to extend the application of the White instruction to the
    present case. The indictment alleged that the Defendant unlawfully killed the victim
    “during the attempt to perpetrate Burglary, in violation of T.C.A. 39-13-202.” A killing
    committed during the attempt to commit a burglary, which in the present case involved
    the intent to commit an assault, does not involve confinement or removal of a person as
    would independent charges for kidnapping and assault, and we note that although the jury
    convicted the Defendant of aggravated assault and two counts of felony murder, the jury
    acquitted the Defendant of especially aggravated kidnapping after the trial court
    instructed the jury pursuant to White. Burglary is a crime against property, and felony
    murder does not involve an element of confinement or removal, unlike kidnapping. As a
    result, the White instruction was not implicated. The Defendant is not entitled to relief on
    this basis.
    We note that the indictment charged that the Defendant unlawfully killed the
    victim “during the attempt to perpetrate Burglary, in violation of T.C.A. 39-13-202.”
    However, the record reflects that the trial court instructed the jury that the killing was
    “committed in the perpetration of or the attempt to perpetrate the alleged Aggravated
    Burglary.” (emphasis added). The court proceeded by instructing the jury regarding the
    elements of aggravated burglary, including that the jury must find that the Defendant
    entered a habitation without the effective consent of the owner with the intent to commit
    an assault. Although the record does not reflect that the parties objected to the court‟s
    instruction, “[a]n instruction to the jury that they consider a charge against the defendant
    not covered by the indictment is clearly erroneous.” 
    Church, 333 S.W.2d at 809
    . We
    also conclude, though, that any error was harmless beyond a reasonable doubt because
    the State was held to a higher burden and because evidence showed that the Defendant
    entered the victim‟s habitation without her effective consent and that the Defendant
    entered the victim‟s apartment with the intent to commit an assault.
    -41-
    II
    Motion to Sever
    The Defendant contends that the trial court erred by denying his motion to sever
    indictment Counts 7, 8, and 9, which correspond to the charges arising from the May 16,
    2010 incident. He argues that a danger existed for the May 16 burglary to serve as the
    basis for the felony murder conviction, which we have previously considered in section I.
    In addition, the Defendant argues that an insufficient connection exists between the May
    16 and June 5 incidents to create a common scheme or plan and that the probative value
    of the evidence did not outweigh the potential prejudice. The State responds that the
    incidents showed a common scheme or plan and that evidence of the May 16 incident
    was admissible relative to the murder charge.
    Tennessee Rule of Criminal Procedure 14(b)(1) states that when multiple offenses
    are permissively joined pursuant to Rule 8(b), a defendant has a right to severance except
    when “the offenses are part of a common scheme or plan and the evidence of one would
    be admissible in the trial of the others.” (emphasis added). When considering a motion to
    sever, the trial court
    must conclude that: (1) the offenses are part of a common scheme or plan;
    (2) evidence of each offense is relevant to some material issue in the trial of
    all the other offenses, Tenn. R. Evid. 404(b)(2); and (3) the probative value
    of the evidence of other offenses is not outweighed by the prejudicial effect
    that admission would have on the defendant, Tenn. R. Evid. 404(b)(3);
    Spicer [v. State, 
    12 S.W.3d 438
    , 445 (Tenn. 2000).]
    State v. Denton, 
    149 S.W.3d 1
    , 13 (Tenn. 2004). Proof of a larger “plan or conspiracy . .
    . contemplates crimes committed in furtherance of a plan that has a readily
    distinguishable goal, not simply a string of similar offenses.” 
    Id. at 15.
    Permitting or denying a motion to sever is within the discretion of the trial court.
    State v. Meeks, 
    867 S.W.2d 361
    , 369 (Tenn. Crim. App. 1993); see State v. Coleman, 
    619 S.W.2d 112
    , 116 (Tenn. 1981). This court reviews a trial court‟s decision to grant or to
    deny a motion to sever for an abuse of discretion. State v. Shirley, 
    6 S.W.3d 243
    , 247
    (Tenn. 1999). An abuse of discretion occurs when a “trial court applie[s] an incorrect
    legal standard or reache[s] a decision against logic or reasoning which cause[s] an
    injustice to the complaining party.” 
    Denton, 149 S.W.3d at 10
    (citing 
    Spicer, 12 S.W.3d at 442
    ).
    As a preliminary matter, we note that the Defendant‟s motion to sever related to
    Counts 7 and 8, aggravated burglary and burglary of a vehicle, respectively, and that
    Count 9, vandalism, was not included in the pretrial motion. The parties discussed
    -42-
    Counts 7 and 8 at the motion hearing but referred to the underlying charges as burglary
    and vandalism. The trial court incorporated Count 9 into its order denying the
    Defendant‟s motion to sever.
    At the pretrial hearing, the State argued that the killing was motivated by jealousy,
    that the May 16 incident provided evidence of the Defendant‟s jealousy, that evidence of
    the burglary and vandalism were relevant to explaining the order of protection, which
    was the aggravating factor in the especially aggravated assault charge relative to the date
    of the killing, and that evidence of the burglary connected the two events because Mr.
    Ross‟s keys were found in the Defendant‟s truck on the night of the killing. The
    prosecutor argued that as a result, the May 16 and June 5 incidents were part of a
    common scheme or plan. The Defendant responded that evidence of the May 16 incident
    would be “incredibly prejudicial” and that the proposed evidence would be irrelevant to
    any fact relative to the killing.
    At a second pretrial hearing, Mr. Ross testified consistently with his trial
    testimony regarding the May 16 and June 5 events. Detective Dantzler testified
    consistently with Officer Tassey‟s description at the trial of the crime scene, medicine
    bottles, and the Defendant‟s truck. The trial court reviewed the recordings of the two 9-
    1-1 calls played during the trial.
    The prosecutor argued that evidence of the May 16 incident was relevant to
    showing premeditation in light of the order of protection the victim obtained after the
    May 16 incident and “the fact that [the victim is] standing up for herself.” The
    prosecutor also argued that “continuity in time” and in the relationship between the
    victim and Mr. Ross existed such that the “nexus” between the events proved a common
    scheme or plan relative to premeditation. In addition, the prosecutor argued that the May
    16 incident was relevant to rebut Dr. Smith‟s anticipated trial testimony that the
    Defendant was incapable of premeditation because of his depression.
    The Defendant responded that the victim and the Defendant‟s relationship had
    many problems and that a conflict three weeks before the victim‟s death was not evidence
    of a plan of escalating violence but was only “another sad part of an unhappy human
    story.” The Defendant asserted that if he were planning to kill the victim, he would have
    done so before June 5 or on June 5 when he was at the apartment earlier in the day. The
    Defendant argued that both the victim and the Defendant contributed to their relationship
    problems, that evidence of the mutual conflicts would be presented to the jury, and that
    the prejudicial effect of joining the two incidents outweighed any probative value.
    Relative to whether the offenses were part of a common scheme or plan, the trial
    court found clear and convincing proof that the incidents occurred and concluded that
    evidence of each incident would have been admissible in separate trials. It found that the
    Defendant did not intend to dispute he caused the victim‟s death and that the remaining
    -43-
    issue was the Defendant‟s state of mind. The court also found that the State‟s theory of
    the case was “the defendant acted out of jealousy of the relationship between Mr. Ross
    and [the victim] during both incidents” and that the Defendant‟s “motive was to end this
    relationship.” The court noted the State claimed it needed evidence of the May 16
    incident to complete its narrative of the murder. The court concluded that although the
    State‟s argument relative to completing the narrative was “thin,” the Defendant “open[ed]
    the door” to inclusion of the May 16 incident because he intended to present evidence of
    additional conflicts between him and the victim. The court concluded that the May 16
    incident was “part of a larger picture” and would have additional “relevance in light of
    other testimony regarding the relationship[.]” The court found that the incidents were
    “part of a continuing plan driven by jealousy to prevent [the victim] from having a
    relationship with Mr. Ross.”
    Relative to whether evidence of the May 16 offenses were relevant to a material
    issue at the trial of all the other charges in the indictment, the trial court found that
    identity, intent, and motive were material to all the offenses charged in the indictment,
    that the State bore the burden of proving identity even when the Defendant did not
    contest it, and that the presence of Mr. Ross‟s keys in the Defendant‟s truck was strong
    evidence of identity in all counts. The court found that evidence of the May 16 incident
    provided evidence of motive for the June 5 burglary and killing. The court also found
    that the two incidents provided evidence of the Defendant‟s mental state and intent.
    Relative to whether the probative value of the evidence related to the May 16
    incident was outweighed by its prejudicial effect, the trial court concluded that the danger
    of unfair prejudice was slight when compared to “the degree of relevance of each
    transaction toward the identity, intent, and motive of the other.” The court noted the
    distinct nature of the charges and concluded that the danger of a jury‟s convicting the
    Defendant on all counts based on propensity was significantly reduced. The court denied
    the motion to sever.
    We conclude that the trial court did not abuse its discretion by denying the
    Defendant‟s motion to sever the charges related to the May 16 incident. Evidence of the
    May 16 incident was admissible relative to the June 5 incident as one of many
    antagonistic interactions between the victim and the Defendant. Likewise, evidence of
    the June 5 incident would have been admissible at a trial regarding the May 16 charges
    because Mr. Ross‟s keys were found in the Defendant‟s truck. The presence of Mr.
    Ross‟s keys inside the Defendant‟s truck was relevant to proving the identity of the
    person who entered the victim‟s apartment and took Mr. Ross‟s keys on May 16 and to
    showing why the victim obtained the order of protection, which the Defendant violated
    on June 5.
    -44-
    Relative to prejudice, the May 16 incident involved offenses against property and
    did not involve violence against the victim. The jury heard evidence during the
    Defendant‟s direct examination of numerous previous incidents between the victim and
    the Defendant, and we note that some of those incidents involved violent behavior.
    Furthermore, evidence of the Defendant‟s conduct leading up to the killing was relevant
    to showing his mental state and intent, which were material issues at the trial. Although
    the Defendant did not deny killing the victim, his mental state at the time of the killing
    was critical to determining his culpability. The State argued the killing was
    premeditated, and the defense presented expert testimony in which Dr. Smith concluded
    the Defendant was not capable of premeditation because of his mental illnesses. As a
    result, the probative value of the evidence related to the May 16 incident outweighed any
    danger of unfair prejudice. We note that the jury acquitted the Defendant of all
    indictment counts related to the May 16 incident and found him guilty of second degree
    murder as a lesser included offense of first degree premeditated murder. The Defendant
    is not entitled to relief on this basis.
    III
    Hearsay
    The Defendant contends that the trial court erred by admitting evidence of hearsay
    statements attributed to the victim. Specifically, he alleges the court erred by permitting
    Mr. Dilworth and Ms. Parsons, the victim‟s neighbors, to testify about the victim‟s
    statements about the Defendant. Likewise, the Defendant alleges Mr. Wassman was
    improperly permitted to testify about various text messages the victim received and her
    responses. He also alleged that the court erred by permitting the prosecutor to question
    the Defendant about entries in the victim‟s diary. The State responds that the relevant
    statements satisfied the state-of-mind exception to the rule against hearsay.
    Hearsay “is 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). Hearsay is inadmissible unless it qualifies as an exception. 
    Id. at 802.
    Tennessee Rule of Evidence 803(3) provides:
    Hearsay Exceptions. – The following are not excluded by the hearsay rule:
    ....
    (3) Then Existing Mental, Emotional, or Physical Condition. – A statement
    of the declarant‟s then existing state of mind, emotion, sensation, or
    physical condition (such as intent, plan, motive, design, mental feeling,
    pain, and bodily health), but not including a statement of memory or belief
    to prove the fact remembered or believed unless it relates to the execution,
    -45-
    revocation, identification, or terms of declarant‟s will.
    A trial court‟s factual findings and credibility determinations relative to a hearsay issue
    are binding upon an appellate court unless the evidence preponderates against them.
    Kendrick v. State, 
    454 S.W.3d 450
    , 479 (Tenn. 2015). The determination of whether the
    statement in question is hearsay and whether a hearsay exception applies are questions of
    law that are reviewed de novo. 
    Id. A. Mr.
    Dilworth
    At a jury-out hearing, Eric Dilworth testified that he and the victim were neighbors
    and that less than one month after the victim moved into her apartment, the victim
    knocked on his door and that they talked for a little while. Mr. Dilworth said the victim
    asked if he heard a noise or anything at her back door because someone had kicked in her
    back door. Mr. Dilworth told the victim that he did not hear or see anything. He said the
    victim stated that she was having “a problem with . . . her ex-husband,” that the couple
    was going through a divorce, and that the divorce was not amicable. He said the victim
    told him to be on the lookout for the Defendant‟s truck. He said that although the victim
    did not say she feared the Defendant, Mr. Dilworth “read into” her statement that she was
    afraid.
    The trial court determined that Mr. Dilworth‟s testimony was appropriate,
    although trial counsel noted for the court that the problem was the State‟s failure to sever
    the burglary and vandalism charges associated with the May 16 incident. The court
    found that Mr. Dilworth could testify regarding the victim‟s telling Mr. Dilworth to be on
    the lookout for the Defendant‟s truck and that she was having problems with the
    Defendant. The court prohibited the prosecution from discussing the “prior incident.”
    Trial counsel argued that the permitted testimony was not necessarily a declaration of
    fear but rather Mr. Dilworth‟s interpretation and that Rule 803(3) addressed a statement
    giving rise to a person‟s mental condition, not a witness‟s interpretation of the person‟s
    statement. Counsel reminded the court that the victim did not say that she thought the
    Defendant broke into her apartment, that the Defendant drove a blue truck, and that Mr.
    Dilworth should be on the lookout for him. Counsel likewise noted the victim‟s
    continuing to call the Defendant during the weeks before the killing.
    The trial court determined that the defense had “made it clear” that the victim
    contacted the Defendant repeatedly during the time leading up to her death. The court
    found that it was appropriate for the prosecution to present evidence of the victim‟s state
    of mind because the defense “obviously wanted to present evidence relative to the
    victim‟s state of mind.” The court determined, though, that Mr. Dilworth could not
    testify regarding the victim‟s belief the Defendant broke into her apartment because the
    statement was not in and of itself a statement of fear.
    -46-
    Mr. Dilworth testified at the trial that the victim told him that she was having
    problems with her former husband, that she described the Defendant‟s truck, and that she
    told Mr. Dilworth to “just keep a heads-up.” The statements were not express
    declarations of the victim‟s mental state but were circumstantial indications of her
    feelings toward the Defendant. “In order for Rule 803(3) to apply, the declarations of
    mental condition should expressly assert the declarant‟s mental state,” which “include
    statements of love („I love Karen‟), fear („I‟m afraid Adolph will kill me‟), and hate („I
    hate him‟).” Neil P. Cohen et al., Tennessee Law of Evidence § 8.08[3][a] (6th ed. 2011).
    Further, often “a statement does not literally assert the declarant‟s mental state when
    offered to prove that mental state,” and as a result, “the statement should be admitted as
    nonhearsay because it is not admitted to prove its truth.” 
    Id. However, “circumstantial
    declarations of mental state . . . are admissible over hearsay objections.” 
    Id. Nonhearsay encompasses
    “utterances offered for the underlying implied assertion that is
    circumstantially implicit in the literal spoken . . . words.” 
    Id. at §
    8.01[8]. As a result,
    “the truth of the statement is irrelevant.”
    The State offered the victim‟s statements to prove the truth of the matter asserted
    and, as a result, were hearsay. Although the trial court determined that the statements
    were reflective of the victim‟s fear and admissible pursuant to Rule 803(3), we conclude
    that the statements were not express assertions of the victim‟s fear and were not
    admissible pursuant to the mental state exception to the rule against hearsay. See 
    id. at §
    8.08[3][a]; see also State v. John Parker Roe, No. 02C01-9702-CR-00054, 
    1998 WL 7107
    , at *10-12 (Tenn. Crim. App. Jan. 12, 1998) (determining the victim‟s statements
    that the defendant had abused her and had threatened to kill her were not express
    assertions of the victim‟s mental state, i.e. fear, although the statements circumstantially
    implied the victim‟s mental state and would have been admissible as nonhearsay), perm.
    app. denied (Tenn. Jan. 4, 1999). The victim‟s statements, though, were circumstantial
    evidence of the victim‟s mental state toward the Defendant at the time the statements
    were made, and therefore, were admissible as nonhearsay. See Tenn. R. Evid. 801(c);
    Neil P. Cohen et al., at § 8.01[8]; see also State v. Ricky Lynn Goins, No. 03C01-9502-
    CR-00026, 
    1996 WL 438891
    , at *7-8 (Tenn. Crim. App. July 30, 1996) (concluding that
    testimony regarding the defendant‟s statement that he and the victim were “going to get
    remarried” was circumstantial evidence of the defendant‟s mental state toward the victim
    at the time the statements were made and was admissible as nonhearsay). Although the
    victim‟s statements to Mr. Dilworth could not be offered to prove the truth of the matter
    asserted, the statements were admissible for the circumstantial implication that the victim
    feared the Defendant. We note that evidence of the victim‟s mental state was a key issue
    at the trial. See Tenn. R. Evid. 401. The Defendant presented evidence that the victim
    continuously contacted the Defendant and that she was the aggressor in the relationship.
    The evidence was relevant to refuting these claims.
    -47-
    Therefore, we conclude that although the trial court should not have admitted this
    evidence pursuant to Rule 803(3), the evidence was nonetheless admissible. The
    Defendant is not entitled to relief on this basis.
    B.     Ms. Parsons
    At a jury-out hearing, Ms. Parsons testified that she and the victim discussed
    someone‟s breaking into the victim‟s apartment weeks before the killing. She said that
    the victim asked if Ms. Parsons had seen or heard anything and that the victim thought
    her former husband was responsible. Ms. Parsons noted the victim said her former
    husband drove a blue truck and asked Ms. Parsons to be on the lookout for the truck.
    Upon examination by the trial court, Ms. Parsons testified that the victim gave her
    and Mr. Dilworth a “heads-up” that if they saw the truck at the victim‟s apartment, “there
    might be problems or an issue.” She said the victim appeared concerned and uneasy that
    there might be an issue or “maybe a feeling of not feeling safe.” Ms. Parsons explained
    the victim did not state explicitly that the victim did not feel safe. Ms. Parsons said the
    victim said that the blue truck belonged to her former husband and that “[i]t‟s kind of a
    nasty breakup we‟re going through[.]” Ms. Parsons said that when the victim asked her
    to be on the lookout for the blue truck, which was around the time of the May 2010
    break-in, Ms. Parsons and Mr. Dilworth began worrying that the victim‟s situation
    involved more than a contentious divorce.
    On cross-examination, Ms. Parsons testified that she interpreted the victim‟s
    stating her former husband drove a blue truck to mean the victim was concerned that
    someone driving the blue truck might return and break into the victim‟s apartment.
    Upon examination by the trial court, Ms. Parsons testified that the victim spoke
    mostly with Mr. Dilworth around the time someone broke in the victim‟s apartment. Ms.
    Parsons said she was standing nearby with her dog when the victim spoke to Mr.
    Dilworth.
    Trial counsel argued that Ms. Parsons did not testify that the victim was afraid but
    rather that the victim was concerned someone might break into her apartment. Counsel
    stated that the victim made no allegation of violence and that the victim only told Ms.
    Parsons to be on the lookout for a blue truck. Counsel argued any mention of the break
    in was inadmissible hearsay.
    The trial court determined that the victim‟s comments regarding who had broken
    in the victim‟s apartment were inadmissible hearsay and did not qualify as an existing
    mental emotional state. The court, though, determined that the victim‟s statement that
    Ms. Parsons should be on the lookout for a blue truck driven by the victim‟s former
    husband was a statement expressing the victim‟s mental state of fear. The court
    permitted the prosecution to question Ms. Parsons accordingly and instructed Ms.
    -48-
    Parsons to limit her testimony to the victim‟s stating to be on the lookout for a blue truck
    driven by the victim‟s former husband.
    The record reflects that Ms. Parsons testified at the trial that the victim told her to
    be on the lookout for a blue truck belonging to the victim‟s former husband and that the
    victim and her former husband had been having problems. We conclude that the
    statements were not express assertions of the victim‟s fear and were not admissible
    pursuant to the mental state exception of the rule against hearsay. See Neil P. Cohen et
    al., at § 8.08[3][a]; see also John Parker Roe, 
    1998 WL 7107
    , at *10-12. As we have
    previously explained, the victim‟s statements were circumstantial evidence of the
    victim‟s mental state toward the Defendant at the time the statements were made, and
    therefore, were admissible as nonhearsay. See Neil P. Cohen et al., at § 8.01[8]; see also
    Ricky Lee Goins, 
    1996 WL 438891
    , at *7-8. Although the victim‟s statements to Ms.
    Parsons could not be offered to prove the truth of the matter asserted, the statements were
    admissible as circumstantial proof that the victim feared the Defendant. We note that
    evidence of the victim‟s mental state was a key issue at the trial. See Tenn. R. Evid. 401.
    The Defendant presented evidence that the victim continuously contacted the Defendant
    and that she was the aggressor in the relationship. The evidence was relevant to refuting
    these claims.
    Therefore, we conclude that although the trial court should not have admitted this
    evidence pursuant to Rule 803(3), the evidence was nonetheless admissible. The
    Defendant is not entitled to relief on this basis.
    C.     Text Messages
    The Defendant also alleges that Officer Wassman was improperly permitted to
    testify about various text messages the victim received and her responses. He notes the
    State argued at the trial that the messages were admissible to establish the victim‟s mental
    state at the time and that she had plans for the weekend of the killing. The Defendant
    states, “While the text messages may have shown [the victim] had plans, that made
    nothing regarding the murder more or less likely and was thus irrelevant and
    inadmissible.” We interpret the Defendant‟s allegation to relate to whether the text
    messages were irrelevant, and therefore, inadmissible, not whether the text messages
    violated the rule against hearsay. Our review is limited to whether the messages were
    relevant.
    The record reflects that Officer Wassman testified regarding the various text
    messages contained on the victim‟s phone. Officer Wassman read three text messages
    received by the victim‟s cell phone on June 2, 2010. The first message was sent from
    Tony, and the second was sent from Maria. Both messages were regarding the Defendant
    and the victim‟s relationship. The third message was from the Defendant‟s cell phone
    relative to Tony and Maria wanting to know “if you got thar [sic] tix.” We note that no
    -49-
    objections were made regarding these messages. See Tenn. R. Evid. 103(a)(1) (“Error
    may not be predicated upon a ruling which admits . . . evidence unless a substantial right
    of the party is affected, and . . . a timely objection . . . appears of record, stating the
    specific ground of objection if the specific ground is not apparent from the context[.]”);
    see also T.R.A.P. 36(a).
    Relative to June 5, 2010, the date of the killing, Officer Wassman read a series of
    text messages between Angie Awake Reiki and the victim. The relevant portions of the
    messages reflect that at 4:00 p.m., the victim asked Angie Awake Reiki, “What time do
    you think I will be through tonight? Trying to plan my weekend.” The Defendant
    objected and argued the messages were inadmissible hearsay. The prosecutor argued the
    messages showed the victim‟s mental state and her attempting to plan her evening. The
    trial court overruled the objection and found that the messages showed the victim had a
    plan that evening and that the message was “relevant toward the kidnapping issue.”
    Officer Wassman read Angie Awake Riekie‟s response, which was no later than 7:00
    p.m. The victim responded that she wanted to be done by 7:00 p.m. because she had
    “stuff to do in the Maryville area.” The Defendant made no additional objections.
    We conclude that the Defendant‟s objection at the trial was based upon whether
    the text messages were inadmissible hearsay. We note that the Defendant raised the same
    issue in the motion for new trial. However, it appears the Defendant has abandoned his
    hearsay argument and argues for the first time on appeal that the messages were
    irrelevant to whether the “murder [was] more or less likely.” See Tenn. R. Evid. 401
    (“„Relevant evidence‟ means evidence having any tendency to make the existence of any
    fact that is of consequence to the determination of the action more probable or less
    probable than it would be without the evidence.”); see also Tenn. R. Evid. 402
    (“Evidence which is not relevant is not admissible.”). Because the Defendant did not
    object on the basis of relevance at the trial and did not raise relevance as an issue in his
    motion for a new trial, the issue is waived. See Tenn. R. Evid. 103(a)(1); see also
    T.R.A.P. 36(a). The Defendant is not entitled to relief on this basis.
    D.     Diary Entries
    The Defendant alleges that the prosecutor‟s questioning the Defendant relative to
    entries contained in the victim‟s diary were inadmissible hearsay. He claims that the
    statements were attributed to the Defendant and not reflective of the victim‟s state of
    mind. The State responds that the prosecutor had a good-faith basis for questioning the
    Defendant about the diary entries because the entries refuted the Defendant‟s testimony
    on direct examination about the cause of the marital problems. The State also asserts the
    entries were admissible hearsay because they were reflective of the victim‟s state of
    mind.
    -50-
    The record reflects that while the prosecutor cross-examined the Defendant
    relative to the status of the Defendant and the victim‟s relationship, the prosecutor held
    an object. The record reflects that the prosecutor did not identify the object he was
    holding and that nobody identified the object as the victim‟s diary. As a result, the record
    does not show that the jury was told the object was the victim‟s diary. The parties,
    though, do not dispute on appeal that the object was the victim‟s diary. The record also
    does not reflect at what point during the State‟s cross-examination the prosecutor began
    holding the diary, but the Defendant directs this court to three pages of the transcript.
    Our review is limited to those pages, which reflects the following exchange:
    Q:    You would tell her . . . that you wouldn‟t have sex with her because
    she was unclean from all the people she‟d been with. Right?
    A:    No. We stopped having sex for a while, sir, because I had to go
    confront somebody she did sleep with that they said had AIDS.
    Q:     And you . . . would tell her that . . . you didn‟t want any
    responsibility over her and you couldn‟t wait until your kids were gone so
    that you could leave her and the kids. Right?
    A:     No, I don‟t remember ever saying that.
    Q:     And you would agree that you told her that the reason that you
    divorced from Angela was adultery on your part?
    A:     No, I don‟t think I remember telling her that, either.
    Q:     And you would agree that you called [the victim] a w---- on many
    occasions during your marriage?
    A:     Could have been.
    Q:    You would agree that you told [the victim] during your marriage
    many times that she needed to move on?
    A:     I don‟t – I don‟t – I don‟t think so.
    Q:     And you agree that you told [the victim] that . . . you would help her
    get on her feet by helping her . . . [obtain an apartment], but you were doing
    that only „cause it was the right thing and not – for her not to get her hopes
    up that you would ever be with her.
    A:     Yeah, I think . . . something like that.
    -51-
    Q:     Okay. You didn‟t tell [the victim] that you even loved her in the . . .
    last two years of your marriage.
    A:     No. I told her I loved her.
    Q:     You would agree with me that you would slap her across the face
    during sex?
    A:     No.
    Q:     You would agree with me that you would spit in her mouth during
    sex?
    A:     No.
    Q:    You would agree with me that you would tell her that you had a
    good mind to slit her throat?
    A:      Never. After all I‟ve been through with [the victim] and I stuck with
    her all them times, why would I say things like that to her?
    Q:    And you would agree with me that you would tell her that your
    marriage was based on a lie, and that all you wanted was out?
    A:    I think when I was angry I might have said that when I . . . found out
    what she was doing. Yes.
    Q:     You‟ve told her that your heart is empty and you feel nothing, that
    you feel emotionally numb?
    A:     Maybe. Maybe.
    Q:      You told her there was no hope for your marriage, that it is
    irretrievably broken. It does not exist.
    A:     I think we tried to get help many . . . times.
    Q:     And you told her to move on and give you your freedom.
    A:     I think I – when I was talking to her that day. Yes.
    -52-
    Q:     You would accuse [the victim] of having sex with people . . . in all
    kinds of places. Right?
    A:     No. Just the ones I knew about.
    Q:    You would get jealous and become angry with her when she would
    hug her own father.
    A:     No. Never. She would get angry with me.
    Q:     You would get angry with her because she wouldn‟t have anal sex
    with you.
    A:     Never.
    At a bench conference, trial counsel objected to the prosecutor‟s reading from the
    victim‟s diary and argued the contents were inadmissible. The prosecutor said the
    statements contained in the diary were “the acts of abuse that [the Defendant] did towards
    her . . . [and] that she provided to her attorney.” The trial court questioned the prosecutor
    whether the victim wrote in the diary that the Defendant said any particular statement,
    and the prosecutor responded affirmatively. The court found that the prosecutor had a
    good faith basis to ask the Defendant questions related to the events and statements
    contained in the diary. The court said the Defendant would know if he made any of the
    statements contained in the diary. The prosecutor‟s cross-examination continued in
    similar fashion regarding the victim‟s family and her profession.
    The record reflects that the diary was not received as an exhibit and that the
    prosecutor did not refer to the book as the victim‟s diary during his cross-examination.
    The prosecutor used the contents of the statements contained in the victim‟s diary to craft
    questions related to whether the Defendant made a particular statement or engaged in
    specific conduct. As a result, neither the prosecutor‟s questions nor the Defendant‟s
    responses were inadmissible hearsay. The questions were relevant and within the scope
    of cross-examination because the Defendant provided details about the nature of his and
    the victim‟s relationship during direct examination. See State v. Reid, 
    213 S.W.3d 792
    ,
    838 (Tenn. 2006) (“It is the longstanding principle that the „propriety, scope, manner and
    control of examination of witnesses is within the trial court‟s discretion and will not be
    interfered with in the absence of an abuse of discretion.‟”) (quoting State v. Harris, 
    839 S.W.2d 54
    , 72 (Tenn. 1992)). As a result, the diary entries provided the prosecutor with a
    good faith basis for asking questions related to the status of Defendant and the victim‟s
    relationship because the entries refuted the Defendant‟s material testimony that the victim
    was the cause of the marital problems. See State v. Melton BNSF Ry. Co., 
    322 S.W.3d 174
    , 184 (Tenn. Ct. App. 2010); State v. Philpott, 
    882 S.W.2d 394
    S.W.2d 394, 403
    (Tenn. Crim. App. 1994). The Defendant is not entitled to relief on this basis.
    -53-
    IV
    Autopsy Photographs
    The Defendant contends that the trial court erred by permitting autopsy
    photographs depicting petechial hemorrhages in the victim‟s eyes. He argues that the
    photographs were irrelevant and used to prejudice the jury because he offered to stipulate
    to the cause of death as manual and ligature strangulation and because the medical
    examiner testified that if such a stipulation were made, he would read from the autopsy
    report or use a diagram without the use of the photographs. The State responds that the
    trial court properly admitted the photographs because they were relevant to show how the
    medical examiner determined the cause of death and because they were not prejudicial.
    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. Questions regarding the admissibility and
    relevancy of evidence 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).
    Photographs of victims “are admissible in murder prosecutions if they are relevant
    to the issues on trial, notwithstanding their gruesome and horrifying character.” State v.
    Banks, 
    564 S.W.2d 947
    , 950-51 (Tenn. 1978). When determining the admissibility of
    such evidence, the trial court should consider
    their accuracy and clarity, and whether they were taken before the corpse
    was moved, if the position and location of the body when found is material;
    the inadequacy of testimonial evidence in relating the facts to the jury; and
    the need for evidence to establish a prima facie case of guilt or to rebut the
    defendant‟s contentions.
    
    Id. at 951.
    Unfair prejudice results when there is “an undue tendency to suggest [a]
    decision on an improper basis, commonly, though not necessarily, an emotional one.”
    State v. Dotson, 
    450 S.W.3d 1
    , 91 (Tenn. 2014) (quoting 
    Banks, 564 S.W.2d at 950-51
    ).
    -54-
    The Defendant challenges the admissibility of photographs showing the victim‟s
    eyes. Although he does not identify the exhibits he challenges on appeal, the transcript
    reflects that three photographs of the victim‟s eyes were admitted at the trial. The first
    photograph depicts the victim‟s left eye, which is closed, and reflects petechial
    hemorrhages on the eyelid. The remaining two photographs depict the victim‟s right and
    left eyes opened with medical “retractors” and reflect petechial hemorrhages inside the
    eyelid and on the scleras.
    At a jury-out hearing, Dr. Cogswell testified relative to the necessity of the
    photographs depicting injuries to the victim‟s neck and eyes that the photographs
    supported his conclusion that the victim underwent two methods of strangulation, manual
    and ligature. Dr. Cogswell said that hemorrhages in the strap muscle located in the neck
    and injuries to the thyroid horn and hyoid bones indicated two locations of strangulation.
    He explained that petechial hemorrhages occurred when pressure was intermittently
    applied, which was common during manual strangulation. He said that petechial
    hemorrhages were possible but less common during ligature strangulation. He said that
    the photographs were the best method to explain his reasoning because they depicted the
    victim‟s anatomy but that it was possible to use diagrams and verbal explanations without
    the aid of the photographs.
    Trial counsel argued that the photographs were not necessary because the
    Defendant stipulated manual and ligature strangulations as the cause of death and that as
    a result, the only purpose of the photographs was to inflame the passions of the jury. The
    trial court determined that photographs showing the internal neck injuries were
    inadmissible after considering the probative value and prejudicial effect. The court,
    though, determined that photographs showing petechial hemorrhages in the victim‟s eyes
    were admissible. The court found that the photographs of the victim‟s eyes did not
    present any danger of unfair prejudice and would be “particularly helpful” to the jury.
    We conclude that the trial court did not err by admitting the photographs. The
    photographs assisted Dr. Cogswell in explaining the victim‟s injuries and supported his
    conclusions that the cause of death was manual and ligature strangulation and that the
    manner of death was homicide. Likewise, the photographs were not overly gruesome,
    and the probative value of the photographs was not substantially outweighed by the
    danger of unfair prejudice. The Defendant is not entitled to relief on this basis.
    V
    Prosecutor’s Questioning Witnesses Regarding an Unrelated Homicide
    The Defendant contends that the trial court erred by allowing the State to cross-
    examine the Defendant and Dr. Smith relative to the Jason E. McLean case in which Mr.
    McLean was convicted of reckless homicide for the killing of his wife‟s eighteen-year-
    -55-
    old lover, Sean Powell. See State v. Jason E. McLean, No. E2009-00221-CCA-R3-CD,
    
    2010 WL 4323029
    (Tenn. Crim. App. Oct. 29, 2010). He argues that references to such a
    well-publicized killing were irrelevant and created a prejudicial analogy between the
    Defendant and Mr. McLean. The Defendant further argues that evidence of the substance
    of the voicemail message the Defendant left on the victim‟s cell phone in which he
    referenced Sean Powell was inadmissible hearsay. The State responds that the Defendant
    did not raise timely objections at the trial and, alternatively, that the questions were
    relevant to determining whether the Defendant acted with premeditation and to
    determining Dr. Smith‟s credibility.
    A.     Questioning Relative to Sean Powell
    The Defendant argues that the State‟s references to Jason E. McLean were
    irrelevant and intended to inflame the passions of the jury by injecting the emotion of a
    well-publicized “love triangle” into the Defendant‟s trial. The State responds that the
    questioning was proper and relevant to the Defendant‟s premeditation and to Dr. Smith‟s
    credibility and alternatively, that any error was harmless because the Defendant was
    acquitted of premeditated murder.
    Generally, trial courts have substantial discretion to control the form of questions
    and the admission of evidence. 
    Reid, 213 S.W.3d at 838
    ; see State v. Hutchinson, 
    898 S.W.2d 161
    , 172 (Tenn. 1994). Questions on cross-examination are “subject to the
    restrictions created by the applicable statutes, rules of evidence, rules of criminal
    procedure, and the common law rules created by the appellate courts.” State v. Adkisson,
    
    899 S.W.2d 626
    , 645 (Tenn. Crim. App. 1994). “A witness may be cross-examined on
    any matter relevant to any issue in the case, including credibility[.]” Tenn. R. Evid.
    611(b). “The scope of cross-examination is largely in the discretion of the trial court[,]
    and its ruling will not be disturbed absent an abuse of discretion to the manifest prejudice
    to the complaining party.” State v. Johnson, 
    670 S.W.2d 634
    , 636 (Tenn. Crim. App.
    1984); see Monts v. State, 
    379 S.W.2d 34
    (Tenn. 1964).
    i.     The Defendant
    The record reflects that the State cross-examined the Defendant regarding his
    knowledge of Sean Powell and the general facts of Mr. Powell‟s death in the context of
    the voicemail message the Defendant left on the victim‟s cell phone. In the message, the
    Defendant stated, “Remember the situation with Sean? That‟s what you‟ve started here .
    . . That‟s what‟s going to happen.” The Defendant testified that Mr. Powell was his
    former neighbor and that he saw Mr. Powell the day before Mr. McLean killed Mr.
    Powell. The Defendant knew the facts of the killing and noted that Jason E. McLean was
    distinguishable from the present case because Mr. McLean was living with Ms. McLean
    at the time of the killing. The Defendant remembered leaving the message on the
    victim‟s phone and said the message was a response to a threatening telephone call he
    -56-
    received from the victim and Mr. Ross. The Defendant stated that “[w]hen people play
    around in other people‟s lives . . . somebody can get hurt” and that Mr. Powell‟s killing
    was tragic. When asked on redirect examination what he meant to convey when he
    referred to Mr. Powell in the message, the Defendant said that he was concerned for his
    and Mr. Ross‟s safety.
    We note that although the Defendant raised an issue relative to Mr. Powell‟s
    homicide in his motion for a new trial, he did not object during the prosecutor‟s cross-
    examination of the Defendant at the trial. See Tenn. R. Evid. 103(a)(1). In any event, the
    petition for an order of protection was received as an exhibit without objection during the
    State‟s case-in-chief and reflects that the victim alleged that the Defendant left a May 17,
    2010 voicemail message on her cell phone stating, “Remember what happened to
    Shawn?” The victim explained in the petition that “Shawn was shot by his lover‟s
    husband.” As a result, the substance of the message was in evidence at the time of the
    prosecutor‟s cross-examining the Defendant. Likewise, the intended meaning of the
    Defendant‟s message was relevant to determining whether the Defendant premeditated
    the victim‟s killing and was within the scope of cross-examination. Relative to prejudice,
    the Defendant factually distinguished Jason E. McLean from the present case and
    testified that the message was not intended to be threatening. We note that the Defendant
    was acquitted of first degree premeditated murder and was found guilty of second degree
    murder. We conclude that the trial court did not err by allowing the State to question the
    Defendant about the voicemail message.
    ii.    Dr. Smith
    The record also reflects that the State questioned Dr. Smith relative to her
    knowledge of the Jason E. McLean case. Dr. Smith initially did not recall the case, and
    the prosecutor attempted to refresh her memory by reciting the facts of the case.
    Afterward, Dr. Smith said that she had a vague recollection of the case. Dr. Smith
    testified that it might have been important to her evaluation to know the Defendant knew
    Mr. Powell and referred to Mr. Powell‟s death while threatening the victim.
    The record reflects that Dr. Smith evaluated the Defendant for the sole purpose of
    determining whether the Defendant lacked the capacity to premeditate the victim‟s
    killing. She determined the Defendant suffered from multiple mental illnesses and
    concluded that the Defendant lacked the capacity to premeditate. Although Dr. Smith
    performed tests to determine whether the Defendant was malingering and concluded that
    the Defendant provided truthful responses during her evaluation, Dr. Smith‟s conclusions
    were based in large part upon the information the Defendant provided during the
    evaluation. As a result, Dr. Smith‟s knowledge of the circumstances surrounding Mr.
    Powell‟s death and the Defendant‟s referencing Mr. Powell‟s death in a voicemail
    message the Defendant left on the victim‟s cell phone were relevant to the jury‟s
    assessing Dr. Smith‟s credibility and the veracity of her conclusions. We note that Dr.
    -57-
    Smith conceded on cross-examination that knowing the Defendant referenced Mr.
    Powell‟s killing in a voicemail message might have been important to her evaluation.
    We conclude that the trial court did not err by allowing the State to question briefly Dr.
    Smith about her knowledge of Mr. Powell‟s death and about the Defendant‟s referencing
    the killing in a voicemail message he left on the victim‟s cell phone. The Defendant is
    not entitled to relief on this basis.
    B.     Defendant’s Telephone Message to the Victim
    The Defendant contends that the State elicited inadmissible hearsay when it cross-
    examined him relative to the contents of the voicemail message in which the Defendant
    referenced Sean Powell. The Defendant argues in his brief,
    [W]hen the state announced its intention to use a voice mail . . . [t]he State
    argued that it was admissible to show the then existing mental . . . condition
    [of Mr. Ross]. But . . . only the declarants [sic] conduct, not some third
    party‟s conduct (Like Ross) is provable by this hearsay exception.”
    The State has failed to respond to the Defendant‟s hearsay argument.
    The record reflects that the Defendant‟s objection and the prosecutor‟s response to
    which the Defendant references in his brief occurred during Mr. Ross‟s testimony. The
    trial court sustained the Defendant‟s objection, and Mr. Ross did not testify regarding the
    substance of the message. The record does not reflect that the Defendant objected during
    the State‟s cross-examination of the Defendant regarding the substance of the message.
    Likewise, the record reflects that the Defendant did not raise the issue in his motion for a
    new trial. See Tenn. R. Evid. 103(a)(1); see also T.R.A.P. 36. As a result, the issue is
    waived, and we decline to review the issue for plain error. The Defendant is not entitled
    to relief on this basis.
    VI
    Prosecutor’s Closing Argument
    The Defendant contends that the prosecutor made two improper statements during
    his closing argument. He argues that the prosecutor mischaracterized Dr. Smith‟s
    testimony relative to the tests she performed to determine whether a person is
    malingering. He also argues that the prosecutor‟s implying that the Defendant had
    committed bigamy by marrying the victim was improper, was not supported by the
    evidence, and was solely intended to prejudice the jury. The State responds that the
    prosecutor‟s closing argument was proper.
    -58-
    Closing argument is “a valuable privilege that should not be unduly restricted.”
    Terry v. State, 
    46 S.W.3d 147
    , 156 (Tenn. 2001); see State v. Bane, 
    57 S.W.3d 411
    , 425
    (Tenn. 2001); State v. Cauthern, 
    967 S.W.2d 726
    , 737 (Tenn. 1998). However, closing
    argument “must be temperate, based upon the evidence introduced at trial, relevant to the
    issues being tried, and not otherwise improper under the facts or law.” State v. Goltz, 
    111 S.W.3d 1
    , 5 (Tenn. Crim. App. 2003); see State v. Jordan, 
    325 S.W.3d 1
    , 64 (Tenn.
    2010). A trial court has significant discretion in controlling closing argument, and its
    decisions relative to the contents of argument may only be reversed upon an abuse of
    discretion. 
    Terry, 46 S.W.3d at 156
    ; 
    Cauthern, 967 S.W.2d at 737
    ; Smith v. State, 
    527 S.W.2d 737
    , 739 (Tenn. 1975).
    Although an exhaustive list of the bounds of prosecutorial impropriety cannot be
    defined, five general areas of prosecutorial misconduct have been recognized:
    1. It is unprofessional conduct for the prosecutor intentionally to misstate
    the evidence or mislead the jury as to the inferences it may draw.
    2. It is unprofessional conduct for the prosecutor to express his personal
    belief or opinion as to the truth or falsity of any testimony or evidence or
    the guilt of the defendant. See State v. Thornton, 
    10 S.W.3d 229
    , 235
    (Tenn. Crim. App. 1999); Lackey v. State, 
    578 S.W.2d 101
    , 107 (Tenn.
    Crim. App. 1978); Tenn. Code of Prof‟l Responsibility DR 7–106(c)(4).
    3. The prosecutor should not use arguments calculated to inflame the
    passions or prejudices of the jury. See 
    Cauthern, 967 S.W.2d at 737
    ; State
    v. Stephenson, 
    878 S.W.2d 530
    , 541 (Tenn. 1994).
    4. The prosecutor should refrain from argument which would divert the jury
    from its duty to decide the case on the evidence, by injecting issues broader
    than the guilt or innocence of the accused under the controlling law, or by
    making predictions of the consequences of the jury‟s verdict. See
    
    Cauthern, 967 S.W.2d at 737
    ; State v. Keen, 
    926 S.W.2d 727
    , 736 (Tenn.
    1994).
    5. It is unprofessional conduct for a prosecutor to intentionally refer to or
    argue facts outside the record unless the facts are matters of common public
    knowledge.
    
    Goltz, 111 S.W.3d at 6
    . (quoting Standards Relating To The Prosecution Function And
    The Defense Function §§ 5.8–5.9 Commentary (ABA Project on Standards for Criminal
    Justice, Approved Draft 1971)).
    If improper argument occurs, a new trial is required only if the argument affected
    the outcome of the trial to a defendant‟s prejudice. 
    Bane, 57 S.W.3d at 425
    . In
    -59-
    determining whether prosecutorial misconduct affected the jury verdict to prejudice a
    defendant, this court has stated a court should consider the conduct in light and in context
    of the facts and circumstances of the case, any curative measures taken by the trial court
    and the prosecutor, the prosecutor‟s intent in making the comment, the cumulative effect
    of the improper comment and any additional errors, the strength or weakness of the case,
    whether the prosecutor‟s comments were lengthy and repeated or isolated, and whether
    the comments were in response to defense counsel‟s closing argument. Judge v. State,
    
    539 S.W.2d 340
    , 344 (Tenn. Crim. App. 1976); see 
    Goltz, 111 S.W.3d at 5-6
    .
    A.     Dr. Smith
    Relative to the prosecutor‟s closing argument related to Dr. Smith, the prosecutor
    stated in his rebuttal argument, in relevant part, the following:
    And – and [trial counsel] wants to get up and say that, “You know, .
    . . [the prosecutor is] just a lawyer and he can‟t understand these very
    complex issues . . . that the doctor can understand.”
    Because all I was trying to ask the doctor was, “Didn‟t two of your
    indicators show indeterminate for malingering or faking?” And I said,
    “Couldn‟t you have done another test, a more widely accepted test, the
    MMPI that has validity indicators involved?”
    And she said, “Well, that requires an eighth grade reading level.”
    Well, you can read the test to him[,] can’t you?
    (emphasis added).
    We note that although the Defendant raised an issue relative to the prosecutor‟s
    closing argument in his motion for a new trial, he did not object during the closing
    argument. In any event, the record reflects that Dr. Smith testified that because the tests
    she administered to determine whether the Defendant was capable of premeditation or
    suffering from diminished capacity were based in large part on the Defendant‟s self-
    reported responses and her observations of the Defendant, she administered tests to
    determine whether the Defendant was malingering. Dr. Smith administered the SIRS test
    to determine if the Defendant was feigning a mental illness from which he did not suffer
    or was exaggerating a mental illness from which he suffered. Dr. Smith said the test had
    a definite feigning range, a probable feigning range, an indeterminate range, and a
    genuine responder range. She said that the Defendant‟s pattern showed that six of his
    eight responses were in the genuine responder range and that two of his responses were in
    the indeterminate range. Dr. Smith said that in order to conclude a person was
    -60-
    malingering, the person had to have at least one response in the definite feigning range
    and at least three responses in the probable feigning range.
    Dr. Smith testified that multiple tests existed for the purposes of determining
    whether a person suffers from a mental illness and that the most widely known, used, and
    accepted test was the Minnesota Multiphasic Personality Inventory (MMPI). Dr. Smith
    admitted she did not administer the MMPI to the Defendant and explained she did not
    administer the test because the Defendant did not have the “appropriate reading level.”
    Although she agreed the MMPI test contained validity scales to determine if a person was
    malingering mental illness, she said the test could not be administered to a person who
    did not have at least an eight-grade reading level.
    We conclude that Dr. Smith‟s testimony reflects that she did not administer the
    MMPI test to determine whether the Defendant was malingering mental illness because
    the test required a person to have at least an eight-grade reading level. The prosecutor‟s
    stating that Dr. Smith could have read the questions to the Defendant suggested that a
    determination of whether the Defendant was malingering could have been obtained had
    she read the questions to him. This argument was not supported by Dr. Smith‟s
    testimony, was speculation beyond the expert proof presented, and was improper.
    Nothing in the record reflects that Dr. Smith was questioned regarding whether a valid
    determination could have been obtained had the MMPI questions been read to the
    Defendant. We note that the prosecutor chose not to present expert testimony showing
    whether reading the MMPI questions to the Defendant would have permitted an accurate
    determination of malingering. Furthermore, the prosecutor‟s statement implies that Dr.
    Smith‟s conclusion that the Defendant provided genuine responses and was not
    malingering was erroneous because she did not administer the most widely known and
    used test. Dr. Smith‟s testimony simply reflects that the MMPI test was inappropriate
    because the Defendant did not satisfy the criterion in order to obtain an accurate
    determination relative to malingering.
    Although we have concluded that the prosecutor‟s argument was improper, we
    conclude that the argument did not affect the jury‟s verdict to the Defendant‟s prejudice.
    We note that Dr. Smith evaluated the Defendant for the sole purpose of determining
    whether he was capable of premeditation as it related to the first degree premeditated
    murder charge. The jury‟s finding the Defendant not guilty of first degree premeditated
    murder and finding him guilty of second degree murder reflects that the jury credited Dr.
    Smith‟s conclusions that the Defendant provided genuine responses during the evaluation
    and that the Defendant‟s mental illnesses prevented him from acting with premeditation
    at the time of the killing. Furthermore, the evidence of the Defendant‟s guilt was
    overwhelming. The Defendant is not entitled to relief on this basis.
    -61-
    B.     Bigamy
    Relative to the prosecutor‟s closing argument related to bigamy, the prosecutor
    stated the following in his rebuttal argument:
    And you recall that . . . [trial counsel] said that, “[The Defendant]
    can‟t remember. He just can‟t remember.”
    And – and convenient that he can‟t remember only the bad things.
    Everything else comes up in detail. The bad things.
    He can’t remember when he got married to [the victim] because he
    got married to [the victim] in June of '98, but wasn’t even divorced from
    [Angela Rivera] till August.
    Can‟t remember the details of the specific acts that he did and
    inflicted upon [the victim]. Anything that‟s bad gets filtered out because he
    doesn‟t want to face it and the consequences that result from it, that this
    Jury should impose upon him.
    (emphasis added).
    We note, again, that although the Defendant raised an issue related to the
    prosecutor‟s closing argument in his motion for a new trial, he did not object during the
    closing argument. In any event, the record reflects that Angela Rivera, the Defendant‟s
    former wife, testified that she and the Defendant married on June 30, 1984, and that they
    divorced on August 23, 1998. She also testified that she thought the Defendant and the
    victim married in 1998 but did not know which month. During the State‟s cross-
    examination of the Defendant, the following exchange occurred:
    Q:     Isn‟t it true that you got married to [the victim] in June 1998?
    A:     I don‟t know.
    Q:     Isn‟t it true that you didn‟t even divorce [Angela Rivera] till later
    that year in August?
    A:     I don‟t know.
    Q:     Isn‟t that probably the reason you‟re lying to this Jury about not
    knowing marrying [the victim] because you were committing bigamy –
    A:     No.
    -62-
    Q:     – when you married [the victim]?
    A:     No.
    The only additional reference to the Defendant and the victim‟s marriage date was during
    the prosecutor‟s opening statement during which he said that the victim had been married
    to the Defendant “since 1998.”
    We conclude that the only testimony related to when the Defendant and the victim
    married came from Angela Rivera. Although Angela Rivera recalled that she and the
    Defendant divorced on August 23, 1998, and that the Defendant and the victim married in
    1998, Angela Rivera did not know the month the Defendant and the victim married. As a
    result, the record does not reflect proof that the Defendant and the victim married before
    the Defendant‟s divorce from Angela Rivera was obtained or that the Defendant
    committed bigamy. We note that at the hearing on the motion for a new trial, the
    prosecutor conceded that no reference was made at the trial to the marriage occurring in
    June 1998 and said that he knew the marriage occurred in June 1998 because he had
    records reflecting it. As a result, we conclude that the prosecutor‟s stating that the
    Defendant married the victim before divorcing Angela Rivera was improper and a
    misstatement of the evidence presented at the trial.
    However, we conclude that the misstatement did not affect the jury‟s verdict to the
    Defendant‟s prejudice. In light of the facts and circumstances of the case and the context
    of the prosecutor‟s overall argument at the time of the misstatement, we conclude that the
    prosecutor‟s intent was to highlight the Defendant‟s inability to remember negative
    events associated with his conduct and positive events associated with another person‟s
    conduct. Further, this determination does not change in light of both of the prosecutor‟s
    improper statements because we have previously concluded that the evidence of the
    Defendant‟s guilt was overwhelming. The Defendant is not entitled to relief on this
    basis.
    In consideration of the foregoing and the record as a whole, we affirm the
    judgments of the trial court.
    ______________________________________
    ROBERT H. MONTGOMERY, JR., JUDGE
    -63-