State of Tennessee v. James Russell Jones, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2014 at Knoxville
STATE OF TENNESSEE v. JAMES RUSSELL JONES, JR.
Appeal from the Criminal Court for Davidson County
No. 2011-D-3684 Monte D. Watkins, Judge
No. M2013-02270-CCA-R3-CD - Filed April 2, 2015
The defendant, James Russell Jones, Jr., was convicted by a Davidson County Criminal Court
jury of two counts of aggravated rape, a Class A felony; attempted aggravated rape, a Class
B felony; aggravated sexual battery, a Class B felony; and simple assault, a Class A
misdemeanor. He was sentenced by the trial court as a Range II, multiple offender to thirty
years at 100% for each of the aggravated rape convictions, as a Range III, persistent offender
to twenty-five years at 45% for the attempted aggravated rape conviction and twenty-five
years at 100% for the aggravated sexual battery conviction, and to eleven months, twenty-
nine days for the misdemeanor assault conviction. The trial court ordered the sentences for
the four felony convictions served consecutively, for an effective sentence of 110 years in
the Tennessee Department of Correction, to be served consecutively to the defendant’s life
sentence for a South Carolina conviction. On appeal, the defendant challenges the
sufficiency of the evidence in support of his convictions and argues that the trial court erred
by denying his request for a mistrial, by ordering consecutive sentences, and by allowing the
jury to deliberate on Counts 1 and 2 of the indictment when venue in Davidson County had
not been established. Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, P.J.,
and T IMOTHY L. E ASTER, J., joined.
Michael A. Colavecchio, Nashville, Tennessee, for the Defendant-Appellant, James Russell
Jones, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Hugh T. Ammerman and
Robert McGuire, Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
FACTS
According to the State’s proof at trial, on August 14, 2011, the defendant was driving
the victim home from a bar when the two got into a verbal argument that progressed to the
defendant’s hitting and choking the victim, fondling her breasts and genitals, and digitally
penetrating her vagina. The victim called 911 as she and the defendant were traveling in his
car, but the defendant took her cell phone from her and hung up on the 911 operator. The
defendant continued fondling the victim as he drove her to his condominium in Hermitage,
where, over the course of the next two days, he forced her into various sex acts with him.
On August 16, 2011, the victim managed to flee from the defendant and seek the assistance
of two individuals she encountered at the defendant’s condominium complex. The defendant
was subsequently indicted by the Davidson County Grand Jury with three counts of
aggravated rape, one count of aggravated sexual battery, two counts of rape, and one count
of aggravated kidnapping. The State dismissed the kidnapping charge, however, before the
jury was empaneled in the defendant’s April 13-16, 2013 trial.
Trial
State’s Proof
James Hunter Johnston, a Wilson County 911 dispatcher, identified a recording of a
911 call he received at 10:37 p.m. on August 14, 2011, from the victim’s cell phone, which,
he said, contained the sounds of a female in apparent distress, followed by the line going
dead. He said that he sometimes receives 911 cell phone calls associated with incidents
occurring in adjacent Davidson County.
The forty-year-old victim testified that she worked at one time as a charge nurse in a
hospital but had become addicted to prescription medication following her mother’s death
in 2005, which led to convictions for obtaining a controlled substance by fraud, DUI, and
public intoxication. She said she was currently incarcerated for the prescription drug
convictions, having violated her probation with her public intoxication conviction. During
the first part of August 2011, she stayed with a friend, Steven Mengas, who had taken her in
when she was homeless. However, for some reason she could not recall, Mengas became
upset with her on Sunday, August 14, 2011. She, therefore, asked him to take her to the
home of the defendant, whom she had met a couple of months earlier at a bar in Hermitage
and who had offered to let her stay with him until she checked into her scheduled drug
rehabilitation program. The defendant lived with his sister and his brother in a condominium
in Hermitage, and she had visited with him and his family there on one prior occasion.
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The victim testified that after she arrived at the defendant’s home sometime in the
afternoon of August 14, she and the defendant went together to a bar where they drank some
beers and ate dinner. When they left, she asked the defendant to take her back to Mengas’
home in Lebanon. She and the defendant had both been drinking, and they got into an
argument while traveling in his vehicle on Lebanon Road. She called him a “b****,” and
he began yelling at her and hitting her in the left leg and left side of her face with his fist.
She called 911, but the defendant took her cell phone from her. The defendant got off
Lebanon Road and was driving through the neighborhood stopping and starting his car
during this time. He then got back on Lebanon Road and began heading west toward
Nashville. At some point, he drove behind a strip mall, stopped the car, choked her with both
hands around her neck, and ordered her to raise her shirt and lower her pants. When she
complied, he began pinching her nipples and touching her “female area.”
The victim testified that the defendant continued touching and fondling her during the
entire time that he drove her in his vehicle back to his home. During that drive, the defendant
“put his hand inside of [her].” When they reached his condominium, she put her clothes back
on, and the two of them went inside. Once inside, the defendant retrieved from a bag beside
the living room couch a belt and a pump that he used on his penis to achieve an erection. By
placing the belt around her head and threatening to choke her, he forced her that night into
both performing oral sex on him and into engaging in penile-vaginal intercourse. She did not
want to have intercourse with the defendant, and she made it clear to him when they reached
his house that she was not interested in him in that way.
The victim recalled that the defendant placed a chair in the hallway to separate the
living room from the kitchen area, telling her that when the chair was in that position,
“everybody knew not to come in there.” She also recalled that the defendant, at some point
during the sexual assault that took place that night in the living room, ordered her to lie on
her stomach and hit her in the back to force her to comply. She identified photographs of his
home as well as photographs of the pump device he used to achieve his erections.
The victim testified that she slept with the defendant in his bed in the loft area of the
condominium on the night of August 14. When she awoke on August 15, she felt nauseous
and repeatedly threw up. She slept for most of that day and could recall only “[b]its and
pieces” of what occurred. She remembered that she took some drugs, including Lortab,
Xanax, and, perhaps, Oxycontin, during the time that she spent at the defendant’s home, but
she could not recall exactly when she took them. She also remembered that the defendant
at some point that day took her to Walmart, where he bought her some clothes. They then
went to a grocery store, where she remained in the defendant’s car while he went inside to
buy groceries. The victim testified that she did not try to escape when the defendant left her
alone in the car because she was confused and uncertain what to do. She explained that she
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was scheduled to enter rehab shortly as a condition of retaining her nursing license, had just
gotten a DUI, was homeless, and was concerned about her probation status. Thus, she did
not want to have any encounters with the police at that point.
The victim recalled that she took a nap when she and the defendant returned to his
home. When she awoke, the defendant’s sister gave her a Phenergan to keep her from
vomiting. That night, the defendant again forced her to perform oral sex on him by
threatening once again to choke her with the belt. The victim remembered that the sexual
encounter that night occurred in the living room on top of an inflatable mattress on which the
defendant had placed a quilt with “little bonnets on it.” She said she slept that night on the
couch while the defendant slept on the mattress and quilt. At some point, the defendant’s
brother “poked his head around the corner into the living room,” but that was the extent of
her encounter with him.
The victim testified that when she awoke on the morning of Tuesday, August 16, she
was, unlike the previous days, sober and that her first thoughts were that she wanted away
from the defendant and his home. She said she had told the defendant the previous night that
she was menstruating because she was trying to get him to stop touching her. The defendant
gave her a washcloth that night to put in her clothes, and on Tuesday morning when she was
changing her clothes he came upstairs to check her underwear. When he did not see any
blood, he became very angry, told her to get onto her hands and knees, and then put his hand
inside her to check for blood but did not find any.
The victim testified that the defendant wanted to go swimming that morning and took
her with him to the complex’s swimming pool. As he was swimming laps in the pool, she
first made an unsuccessful attempt to get the attention of a woman who was sunbathing at
the pool and then fled from the pool area to a man and a woman nearby. The victim said she
informed the woman that she had been raped and raised her shirt to show her the injuries on
her back. She stated that the woman called 911 and took her to a service station to wait for
the police, who, in turn, took her to the hospital.
On cross-examination, the victim acknowledged that she had been released from jail
only one week before the events transpired and that she and the defendant had been thrown
out of a bar together on or about August 10. She said that she and the defendant were on
Lebanon Road driving toward Lebanon when she made her 911 call but that they never made
it as far as Highway 109. She stated that the defendant did not choke her until he stopped at
the strip mall located close to the intersection of Mount Juliet and Lebanon Roads. Finally,
she acknowledged that she did not try to get the attention of any passing motorists as she and
the defendant were driving to his home and did not try to seek the assistance of any shoppers
in the grocery store parking lot when she was alone in the defendant’s vehicle.
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Mark J. Bolling, the former maintenance technician for the defendant’s condominium
complex, testified that he was replacing some rotten wood at one of the condominium units
on the morning of August 16, 2011, when the hysterical victim came running from the pool
area and tearfully told him that she had been kept against her will for the past couple of days
and “burned with cigarettes and different things” by a man who had taken her out to dinner.
The victim, who appeared very frightened, repeated her story to Bambi Broersma, who was
the caretaker for the resident of the unit on which Bolling was working, and she showed him
and Bambi the cigarette burns on her forearms. On cross-examination, Bolling testified that
the victim never told him that she had been sexually assaulted.
Bambi Broersma, the caregiver for a disabled woman who lived in one of the
condominium units, testified that on the morning of August 16, 2011, she was on the back
patio of the unit talking to the maintenance man about some repairs when the shaking victim,
who appeared to be terrified, showed up and said, “[H]elp me, this man’s been holding me
hostage for two days, raping and beating me[.]” Broersma recalled that the victim lifted her
shirt, revealing bruises “all along her stomach[.]” She did not remember seeing any burns
on the victim. She said she instructed the victim to get into her car and lay the seat down so
that she would not be visible to the perpetrator. She then drove the victim around the block
and telephoned the police. Broersma testified she had never seen anyone who appeared as
terrified as the victim and that the victim’s terror made her afraid for herself as well.
Detective Charles Fleming of the Metro Nashville Police Department’s Sex Crimes
Unit identified photographs of the victim’s injuries taken at the hospital on August 16, 2011,
including “red and bruising marks” on her neck, left thigh, left buttocks, waist, and right arm.
He also identified an audio recording of a controlled phone call that the victim, at his request,
had made to the defendant. He testified that the defendant, in the phone call, denied any
sexual contact with the victim but that his DNA matched the DNA of sperm recovered from
the victim’s vagina. He further testified that among the items he found in the defendant’s
home was a quilt with bonnets, located in a closet, and a penis pump, which was in the
defendant’s bedroom.
Katherine Elizabeth Parnell, the forensic nurse who performed the rape kit on the
victim on August 16, 2011, testified that she observed the following injuries on the victim:
two bruises on her right arm; bruising on her left breast; bruising on her left thigh; bruising
on her left buttock; bruising on the back of her right thigh; tenderness on the back of her
neck; and swelling and tenderness to her left temple. She said the victim, who was tearful
throughout the examination and interview, told her that the defendant had taken her out to
eat on August 14, 2011, and struck her on the left temple in his vehicle after she asked him
to take her home. The victim reported that she called 911, but the defendant took her phone
from her and forced her to ride around with her shirt up and pants down while he was
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“fingering her[.]” The victim also reported that the defendant had raped her that night and
threatened to choke her with his belt and his hands.
Dr. Laura Boos of the Tennessee Bureau of Investigation, an expert in DNA analysis,
testified that the DNA profile she obtained from the sperm fraction found on the victim’s
vaginal swabs matched the defendant’s DNA profile, with the probability of an unrelated
individual having the same profile exceeding the current world population.
Defendant’s Proof
The defendant’s brother, Timothy Jones, testified that he spoke with the victim and
the defendant for thirty or forty minutes late Sunday evening, August 14, as the three of them
sat together at the dining room table drinking beer, talked to the victim again at about 2:00
a.m. Monday morning when he encountered her alone in the kitchen as she was getting a
snack, and saw the victim and the defendant again briefly at about midnight on
Monday/Tuesday morning when they walked through the house to go outside to smoke. The
victim never appeared upset and at no time attempt to signal him that anything was wrong.
On cross-examination, the witness testified that he could not recall having told Sergeant
David Slessinger on Tuesday, August 16, that everyone was “scared to death of [the
defendant] and that’s why they allow him to do as he pleases.”
The defendant’s sister, Shirley Jones, testified that she stayed with a friend on Sunday,
August 14, arriving home to her condominium at 5:20 p.m. Monday to find her brother,
Timothy, in the kitchen, the victim upstairs, and the defendant gone to the grocery store. She
said the victim came downstairs complaining that she was sick to her stomach and had been
vomiting, so she gave her a Phenergan to settle her stomach. About fifteen minutes later, the
defendant returned from the store with some cokes for the victim. The victim then went back
upstairs to lie down, Timothy left the home, and the defendant began preparing a salad for
dinner. Approximately thirty minutes later, the victim came back downstairs and ate dinner
with the defendant while the witness sat and visited with the defendant and the victim. For
the remainder of the evening, the victim and the defendant stayed home, occasionally going
out to the courtyard to smoke. Before the witness went to bed at 11:30 p.m., the defendant
asked her to help him set up her inflatable mattress in the living room because the victim was
sick and was going to sleep alone upstairs. The victim did not appear upset that night and
never attempted to signal the witness that anything was amiss. The witness left for work the
next morning without seeing the victim again.
On cross-examination, the witness denied having told the police in a statement on
Tuesday, August 16, 2011, that the defendant did not call the victim to come over until after
she had said he could have the house to himself. After the prosecutor played a portion of a
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recording, the witness insisted that she had not given a statement to police that night and did
not think the voice on the recording was hers. After a further portion of the recording was
played, the witness acknowledged that the voice on that portion was hers. She insisted,
however, that she did not remember having made the first statement and still did not think
the voice on that recording sounded like hers.
The defendant elected not to testify and rested his case without presenting any further
proof.
State’s Rebuttal Proof
Sergeant David Slessinger of the Metro Nashville Police Department’s Sex Crimes
Unit testified that while the police were executing their search warrant at the defendant’s
residence on August 16, 2011, the defendant’s brother, Timothy Jones, made the statement
that “[e]veryone is scared to death of [the defendant] . . . [a]nd that’s why they allow him to
do as he pleases.” He said that Timothy Jones did not want him to tell his sister what he had
just revealed about the defendant. On cross-examination, Sergeant Slessinger testified that
he understood Timothy Jones to be referring to both the present and the past with his
statement about everyone being afraid of the defendant.
Defendant’s Surrebuttal Proof
Timothy Jones testified that when he made the statement about everyone being afraid
of the defendant, he was referring to the past.
The State made the following election of offenses: Count 1, aggravated rape: the
digital penetration that occurred during the car ride after the victim was beaten and choked
by the defendant behind the strip mall; Count 2, aggravated sexual battery: the fondling and
touching of the victim’s breasts and genital area that occurred during the car ride after the
victim was beaten and choked; Count 3, aggravated rape: the victim’s being forced to
perform oral sex on the defendant at his Hermitage home after the defendant placed a belt
around her neck and threatened her with strangulation; Count 4, aggravated rape: the
victim’s being forced into penile-vaginal intercourse with the defendant at his Hermitage
home after the defendant placed a belt around her neck and threatened her with strangulation;
Count 5, rape: the victim’s being forced to perform oral sex on the defendant in the
defendant’s home on the evening of the day in which she had been nauseous all day; and
Count 6, rape: the defendant’s having touched the victim’s genital area on the morning of
August 16 after having confronted her about whether she was menstruating. Following
deliberations, the jury found the defendant guilty of attempted aggravated rape in Count 1,
guilty of aggravated sexual battery in Count 2, guilty of aggravated rape in Counts 3 and 4,
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not guilty in Count 5, and guilty of assault in Count 6.
Sentencing Hearing
At the sentencing hearing, the State introduced the presentence report, which reflected
that the sixty-five-year-old defendant had a lengthy and substantial criminal history. The
State also introduced certified copies of the defendant’s state and federal felony convictions
on which it was relying to establish his sentencing ranges, which included 1992 South
Carolina convictions for armed robbery, kidnapping, and safecracking. The State also noted
that the defendant, at the time of the offenses, was both on parole from a life sentence in
South Carolina and on supervised release from a federal sentence.
The defendant testified that his 1992 South Carolina convictions for safecracking,
kidnapping, burglary, and armed robbery all stemmed from a single incident. Similarly, his
1991 convictions in federal court for aiding and abetting credit card fraud and transportation
of stolen property were based on one incident. As for his convictions in the instant case, the
defendant claimed that they were based on “a total fabrication,” and went on to provide his
version of the events, which essentially mirrored the version he provided for his presentence
report. The defendant began his version in the presentence report with the following
statement:
I am not guilty of this charge. She was my whore, you cannot rape your
whore. You cannot be charged with kidnapping when you own her. The
whole idea is ridiculous. My brother and sister interacted with her socially, as
a guest in our home.
The defendant claimed that the victim’s bruises occurred from her boyfriend’s having
kicked her out of his moving vehicle. He said that the victim was free to leave at any time,
always had her cell phone with her, called her probation officer while she was at his home
to report her location, and met the defendant’s parole officer when he came to his home
during the time the victim was the defendant’s guest. He also claimed that the victim had
ridden with an “outlaw” motorcycle gang, was a “trickster,” and “may have pulled this
before.”
Applying three enhancement factors – the defendant’s previous history of criminal
conduct or criminal convictions in addition to those necessary to establish his range, the fact
that the defendant, before trial or sentencing, failed to comply with the conditions of a
sentence involving release into the community, and the fact that the defendant was on parole
at the time the felonies were committed, see Tenn. Code Ann. § 40-35-114(1), (8), (13) (2010
& 2014) – the trial court sentenced the defendant as a Range III offender to twenty-five years
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at 45% for the attempted aggravated rape conviction and to twenty-five years at 100% for the
aggravated sexual battery conviction, as a Range II offender to thirty years at 100% for each
of the aggravated rape convictions, and to eleven months, twenty-nine days for the
misdemeanor assault conviction. Finding the defendant to be a professional criminal who
had knowingly devoted his life to criminal acts as a major source of his livelihood and an
offender whose record of criminal activity was extensive, the court ordered that the sentences
for the four felony convictions run consecutively to each other and consecutively to the
defendant’s life sentence in South Carolina, for an effective sentence of 110 years in the
Department of Correction.
ANALYSIS
I. Sufficiency of the Evidence
As his first two issues, the defendant argues that the evidence was insufficient for a
rational jury to find the essential elements of the crimes beyond a reasonable doubt and that
the trial court should have exercised its role as thirteenth juror to overturn the convictions.
When the sufficiency of the convicting evidence is challenged on appeal, the relevant
question of the reviewing court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions
involving the credibility of witnesses, the weight and value to be given the evidence, and all
factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits
the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated
the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
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Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In challenging the sufficiency of the convictions, the defendant, essentially, argues
that the victim’s account is not credible. In support, he points to her background of drug
abuse, drinking, and criminal convictions, including obtaining prescription medication by
fraud and violation of probation. He contends that the victim’s “claims are also suspect”
because of the many opportunities she had to leave or “escape” during her alleged ordeal, and
asserts that her testimony “is likely a complete fabrication due to [the defendant’s] decision
to not allow [her] to stay another night in his condo[.]”
It is well-established, however, that credibility determinations, as well as the weight
and value of the evidence and the resolution of conflicts in the testimony, are within the
province of the jury as the trier of fact. See State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002)
(citing State v. Holder, 15 S.W.3d 905, 912 (Tenn. Crim. App. 1999)). The victim’s
testimony was that the defendant beat and choked her, pinched her breasts, fondled her
genital area, and digitally penetrated her vagina during the drive to his home on August 14,
forced her with threats of strangulation into engaging in oral and penile-vaginal sex that night
at his condominium, forced her into engaging in oral sex with him again on August 15, and
digitally penetrated her vagina on August 16 when checking to see if she was lying about
being on her menstrual period. As an explanation of why she did not flee when she had the
opportunity on August 15 when left alone in the parking lot, she explained that she was
homeless, worried about her probation status, and uncertain what to do. She also later
explained that she was not sober that day.
The victim’s account of having been beaten and choked by the defendant and that she
was in great fear of him was corroborated in part by the testimony of other witnesses,
including the man and woman whose help she sought on August 16, who witnessed her
visible agitation and fear and the injuries she displayed on her arms and stomach. It was also
corroborated in part by the testimony of the forensic nurse, who documented the various
bruises and tenderness on the victim’s body, including to her temple and neck. By acquitting
the defendant of one of the counts of the indictment and finding him guilty of lesser offenses
in two other counts, the jury obviously accepted some, but not all, of the victim’s version of
the events, as was its prerogative. We, therefore, conclude that the evidence is sufficient to
sustain the convictions.
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The defendant also contends that the trial court erred by not exercising its role as
thirteenth juror to overturn the jury’s verdicts. In support, he cites the same evidence he cited
in support of his challenge to the sufficiency of the evidence, arguing that “no rational trier
of fact could have found the essential elements of sexual assault, rape, or kidnapping, and
therefore the judge, as thirteenth juror, should have overturned the [defendant’s] conviction
for those charges.” Rule 33(d) of the Tennessee Rules of Criminal Procedure provides that
a “trial court may grant a new trial following a verdict of guilty if it disagrees with the jury
about the weight of the evidence.” The rule imposes a mandatory duty on the trial judge to
act as the thirteenth juror in every criminal case. See State v. Carter, 896 S.W.2d 119, 122
(Tenn. 1995). The rule requires that the trial judge be personally satisfied with the verdict,
see State v. Dankworth, 919 S.W.2d 52, 56 (Tenn. Crim. App. 1995), and its purpose is “to
be a ‘safeguard . . . against a miscarriage of justice by the jury.’” State v. Price, 46 S.W.3d
785, 823 (Tenn. Crim. App. 2000) (quoting State v. Moats, 906 S.W.2d 431, 434 (Tenn.
1995)). The trial court does not have to make an explicit statement on the record. Moats,
906 S.W.2d at 434. Instead this court may presume by the trial court’s overruling of the
motion for new trial that it approved of the jury’s verdict. Id.
In its order denying the motion for new trial, the trial court explicitly found that the
defendant had presented no claims to substantiate either a judgment of acquittal or a new trial
and expressed its opinion that the verdict of the jury was valid. We conclude, therefore, that
the trial court properly exercised its role as thirteenth juror and that the defendant is not
entitled to relief on the basis of this issue.
II. Denial of Motion for Mistrial
As his next issue, the defendant contends that the trial court erred by denying his
motion for mistrial following the mention before the jury of the defendant’s parole officer.
The decision of whether or not to declare a mistrial lies within the sound discretion of the
trial court. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A mistrial should
be declared in a criminal case only when something has occurred that would prevent an
impartial verdict, thereby resulting in a miscarriage of justice if a mistrial is not declared.
See id.; State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App. 1999); Arnold v. State, 563
S.W.2d 792, 794 (Tenn. Crim. App. 1977). “Generally a mistrial will be declared in a
criminal case only when there is a ‘manifest necessity’ requiring such action by the trial
judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold,
563 S.W.2d at 794). A manifest necessity exists when there is “no feasible alternative to
halting the proceedings.” State v. Knight, 616 S.W.2d 593, 596 (Tenn. 1981). The burden
to show the necessity for a mistrial falls upon the party seeking the mistrial. Land, 34 S.W.3d
at 527. This court will not disturb the trial court’s decision unless there is an abuse of
discretion. Id.
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When asked during her direct examination testimony what happened “the next day”
on Monday, August 15, the victim replied that the defendant’s “parole officer showed up at
his door.” Defense counsel immediately objected and requested to approach the bench. The
trial court made the observation that it did not think the State was attempting to elicit that
answer and, in a jury-out hearing that followed, instructed the victim not to mention anything
about the defendant’s parole officer or criminal history. Defense counsel then moved for a
mistrial, arguing that a curative instruction would not be sufficient to overcome the prejudice
to the defendant’s case. The trial court disagreed, denying the motion and instructing the jury
to disregard the mention of the parole officer and that it was not to consider it for anything
with respect to the trial.
We find no abuse of discretion in the trial court’s denial of the motion for mistrial.
Accordingly, we conclude that the defendant is not entitled to relief on the basis of this issue.
III. Venue
The defendant contends that the trial court erred by allowing the jury to deliberate on
Counts 1 and 2 of the indictment because these alleged events occurred in Wilson, rather than
Davidson, County. In support, the defendant cites the victim’s testimony that she had a “beer
buzz” to argue that her “testimony is suspect when it comes to the locus of the alleged
assault.” The defendant asserts that the assault, which definitely started in Wilson County
according to the victim’s testimony, “probably ended while [the victim] was in Wilson
County due to her state of inebriation.” The State responds by arguing that the proof
established that the defendant committed the acts up until the time the defendant and the
victim reached the defendant’s Davidson County residence, establishing venue in Davidson
County. We agree with the State.
The Tennessee Constitution provides criminal defendants with the right to a jury trial
in the county where the offense was committed. Tenn. Const. art. I, § 9; State v. Young, 196
S.W.3d 85, 101 (Tenn. 2006). Accordingly, “[a]lthough venue is not an element of the
crime, the [S]tate must prove by a preponderance of the evidence that the offense was
committed in the county alleged in the indictment.” State v. Anderson, 985 S.W.2d 9, 15
(Tenn. Crim. App. 1997) (citations omitted); see also Tenn. Code Ann. § 39-11-201(e) (“No
person may be convicted of an offense unless venue is proven by a preponderance of the
evidence.”); Tenn. R. Crim. P. 18(a) (“Except as otherwise provided by statute or by these
rules, offenses shall be prosecuted in the county where the offense was committed.”).
“Venue is a question for the jury,” Young, 196 S.W.3d at 101 (citing State v.
Hamsley, 672 S.W.2d 437, 439 (Tenn. Crim. App. 1984)), and can be established by
circumstantial evidence. Id. at 101-02 (citing State v. Bennett, 549 S.W.2d 949, 950 (Tenn.
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1977)). To determine venue, the jury is permitted to draw reasonable inferences based on
the evidence presented. Id. at 102 (citing State v. Johnson, 673 S.W.2d 877, 882 (Tenn.
Crim. App. 1984)).
The victim testified that the defendant began pinching her nipples and fondling her
genital area while they were traveling in his vehicle on Lebanon Road toward Lebanon and
that he continued the same behavior after turning his vehicle around, stopping only when
they reached his Davidson County home. This testimony was sufficient to establish venue
in Davidson County by a preponderance of the evidence. We conclude, therefore, that the
trial court did not err in allowing the jury to deliberate on Counts 1 and 2 of the indictment.
IV. Consecutive Sentencing
The defendant contends that the trial court abused its discretion in ordering that his
felony sentences be served consecutively, arguing, inter alia, that because the defendant’s
previous crimes occurred in the early 1990’s or before, he is neither a professional criminal
who had devoted his life to criminal acts as a major source of his livelihood, nor an offender
whose record of criminal activity is extensive. We respectfully disagree.
The trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that one or more of the seven factors listed in Tennessee Code
Annotated section 40-35-115(b) apply, including that the defendant is a professional criminal
who has knowingly devoted his life to criminal acts as a major source of livelihood, or an
offender whose record of criminal activity is extensive. Id. § 40-35-115(b)(1), (2). We
review the trial court’s consecutive sentencing determinations for abuse of discretion, with
a presumption of reasonableness afforded to the trial court’s decision. See State v. Pollard,
432 S.W.3d 851,860 (Tenn. 2013) (applying same deferential standard announced in State
v. Bise, 380 S.W.3d 682 (Tenn. 2012) to trial court’s consecutive sentencing decisions).
The trial court based its order of consecutive sentencing on its finding by a
preponderance of the evidence that the defendant was both a professional criminal and an
offender with an extensive record of criminal activity. The exhibits to the sentencing
hearing, which reveal that the defendant had no employment history other than while a
prisoner in the federal prison sentence and was sentenced in 1992 to sentences of twenty-five
years, thirty years, and life for his South Carolina convictions, support these findings.
Accordingly, we affirm the sentencing determinations of the trial court.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
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court.
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ALAN E. GLENN, JUDGE
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