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Date: 01-15-2021
Case Style:
State of Tennessee v. Jeremy Lee Fleming
Case Number: M2019-00573-CCA-R3-CD
Judge: Robert H. Montgomery, Jr.
Court: IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Plaintiff's Attorney: Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Robert Carter, District Attorney General; Mike Randles and John
Cawley, Assistant District Attorneys General,
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Nashville, TN - Criminal defense attorney represented Jeremy Lee Fleming with contending that the evidence is insufficient to support his convictions and that the trial court erred in imposing consecutive sentencing.
The Defendant’s convictions relate to the death of Timothy Perkins, the burning of
the home Mr. Perkins rented, and the taking of Mr. Perkins’s vehicle.
At the trial, Bedford County Firefighter Robert Perry testified that on December 2,
2016, he arrived at home around 4:30 or 5:00 p.m. and that he later received a pager
notification regarding a “structure fire” at an address across the street from his house. He
did not recall when he received the notification. He drove to the fire and notified dispatch
that he was at the scene. He said that he walked around the house to assess the fire and any
hazards and that he turned off the electricity to the house. He said that when he first arrived,
flames were not coming from the front of the house but that the fire had progressed, with
heavy smoke coming from the front of the house, and that “the conditions on the original
corner were beginning to worsen.” He said the “neighbor or caretaker of the property”
arrived.
Mr. Perry testified that he went to the front porch, where he saw a sheet and blood
on the porch. He said the blood was on the porch near the front door. He said he saw
“tracking” in the blood but could not tell if footprints existed. He later denied that he
“thought it looked like tracking” and agreed he had not closely studied the blood. He
thought he might have seen “personal belongings” on the porch, as well. He said that the
front door opened when he hit it and that smoke came out but that he did not enter the
house because other firefighters had not yet arrived. He said he wore fire gear and had not
worn Nike Air Jordan shoes. He said he did not own any Nike Air Jordan shoes.
Mr. Perry testified that Bedford County Sheriff’s Deputy William Castleman arrived
and that he told Deputy Castleman about the sheet and the blood on the porch. Mr. Perry
said Bedford County EMS Captain Bryan Bruce arrived. Mr. Perry said Mr. Bruce
removed the sheet from the front porch and brought it to the yard. Mr. Perry said that as
the fire progressed, the front porch roof collapsed.
Mr. Perry testified that a fire truck arrived and that he and the other firefighters
began extinguishing the fire. Mr. Perry said the northeast corner of the house sustained the
greatest fire damage. Mr. Perry said he never entered the house but that it appeared “pretty
well burned” from the outside. He said it had been dark outside when he arrived and that
he had used a flashlight when he went to the porch and door.
Bedford County EMS Captain Bryan Bruce testified that he was in his office on the
evening of December 2, 2016, when he heard a dispatch regarding a “fire standby.” He
said EMS’s role was to watch the firefighters and assist if anyone was hurt or was found
injured at the scene. He said he went quickly to the scene, which was about two to three
minutes from his office. He said that he arrived around the same time as Deputy Castleman
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and that Mr. Perry was at the scene. Captain Bruce said the property’s caretaker and “some
other people” whom he did not know but were “civilians” were also present. Captain Bruce
said he surveyed the scene for hazards and called out for anyone who might need assistance
as he and the other emergency personnel waited for the fire truck to arrive.
Captain Bruce testified that he saw heavy, black smoke coming from the house but
that the flames were contained inside the house at first. He said he went to the front porch
to call to anyone inside through the door and to look for anyone inside. He said flames
were starting to come outside onto the porch when he approached. He said that he did not
receive any response to his calls and that he could not see anyone inside the house. He said
he saw a blood-covered sheet on the porch’s floor and blood on the porch and front door.
He said he collected the sheet and pulled it “several steps into” the yard because he could
tell the porch was about to be destroyed by the fire. He said he “turned [the sheet] over”
to Deputy Castleman. He said the sheet was “grossly covered” in blood. He identified a
sheet and agreed it appeared to “have the same appearance” as the sheet he recovered at
the scene. The sheet was received as an exhibit.
Captain Bruce testified that, at some point, a firefighter notified him that a body had
been found. Captain Bruce said that he entered the house through the front door after the
fire was extinguished and that he pronounced the person deceased. He later learned the
victim was Robert Timothy Perkins. He said the body was transported to the medical
examiner’s office for an autopsy.
Bedford County Fire Department Lieutenant Todd Carter testified that he was
dispatched to the fire. He said the house sat 200 to 300 feet from Highway 231. He said
small rental cottages and a “regular size double wide” were in the vicinity and that a couple
of houses sat across the highway. He said he arrived around 8:00 or 9:00 p.m. He said he
saw flames coming from the top of the front door and side windows and rolling across the
roof when he arrived. He said he saw the most flames coming from inside the front door
and at the rear of the house.
Lieutenant Carter testified that he assessed the fire and determined that they would
have to go inside the house once a larger fire truck arrived. He said that he and Lieutenant
Leo Wilcox later entered the burning house by crawling through the front entrance. He
said the front door had collapsed by this time. He said other firefighters started fire
suppression efforts from outside the house while he searched for hotspots inside.
Lieutenant Carter said that after he crawled in the house, he felt what he recognized as a
body on the floor. He said that when the smoke cleared, he confirmed it was a body. He
said the front door had fallen on the body and that he had not felt it when he first entered.
He thought he and Lieutenant Wilcox moved a portion of the door from the body.
Lieutenant Carter said that an EMS worker brought him a sheet to cover the body and that
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a volunteer firefighter, Ryan Pool, was posted to guard the scene near the body in order to
preserve evidence.
Lieutenant Carter testified that he found the body three to four feet inside the front
door and that the body was facedown with the head facing the doorway. He said the body
was in “good condition” as compared with bodies he typically found in fires. He said the
body was clothed in jeans and cowboy boots. He could not recall the details of the shirt
but said it was well-preserved. He thought the door that fell on the body had helped
preserve the body from greater damage. Lieutenant Carter said that the body had a “slice
across his throat” and that the wrists and ankles were bound with thick wire ties. Lieutenant
Carter said the presence of the bindings caused the authorities to view the area as a crime
scene.
Lieutenant Carter testified that in his opinion, the fire had not burned for “too long,”
and he said the use of an accelerant would hasten the spread of a fire. He said “Bomb &
Arson” investigated the fire.
Lieutenant Carter testified that he looked through the house “[m]ultiple times” and
that he saw a butcher knife on the corner of the kitchen counter. He said the furniture was
in disarray, as if someone had thrown around items. He said it appeared “a scuffle or
something” had taken place “because it just was not right.” He acknowledged that water
might cause furniture to move but said that he sprayed water at the ceiling and not in a
manner that would move furniture. He said he found an approximate two-gallon can
containing gasoline in a bedroom closet. He said that he noticed the odor in the house of
what he thought was gasoline.
Bedford County Sheriff’s Deputy William Castleman testified that he received a
dispatch call regarding a structure fire around 7:00 p.m. on December 2, 2016. He said
that he arrived at the scene around 7:10 p.m. and that he saw a house on fire with smoke
coming from the front door and fire coming from the back of the house. He said that he
saw a volunteer fireman whose identity he did not know and that the fireman told him to
check the front porch for blood. Deputy Castleman said that he went to the steps of the
front porch but did not go onto the porch and that he observed a handprint on the door
about one foot below the doorknob, a pool of blood about the size of a dinner plate inside
the slightly opened door, blood specks and footprints on the porch, and a bloody sheet on
the porch.
Deputy Castleman testified that he notified his supervisor, Sergeant Jimmy Rhodes,
that they might have a crime scene. Deputy Castleman said that after Mr. Bruce arrived,
they went to the front porch. Deputy Castleman said he wanted to get the bloody sheet
from the porch but that flames were rolling out the front door. Because Deputy Castleman
wore a polyester uniform, which was unsafe around fire, Mr. Bruce retrieved the sheet and
-5-
handed it to Deputy Castleman. Deputy Castleman identified a photograph of the porch he
took with his cell phone, and the photograph was received as an exhibit. He said he placed
the sheet in a paper bag and locked it inside his trunk. He said he later gave it to Tennessee
Bureau of Investigation (TBI) Agent Zack Burkhart.
Deputy Castleman testified that after he learned a body had been found inside the
house, they “taped off the crime scene.” He said he kept the log of people at the scene for
part of the evening. Deputy Castleman said he wore “Rocky work boots” at the scene.
Bedford County Fire Chief Mark Thomas testified that Todd Carter called him on
December 2, 2016, and informed him that a body had been found inside the home where
the fire took place. Chief Thomas said he notified Russell Robinson in the State Fire
Marshal’s Office and asked Mr. Robinson to come to the scene. Chief Thomas said the
situation was one in which he would notify “State Bomb & Arson.”
Chief Thomas said he and other “listed” individuals entered the burned house. He
said the victim’s feet were bound but did not recall if the victim’s hands were bound. He
said he and the county coroner, Dr. Rupert, rolled the body in order for Dr. Rupert to
examine the head, which was of interest due to the pooling of blood near the head. Chief
Thomas said that when the body was rolled, he noticed the odor of what he thought was
gasoline. He noticed what appeared to be a bullet hole in the head of the body and “almost
like a cut mark in the throat.” He said he did not see a large amount of blood near the throat
injury. He said they wrapped the head in cellophane to protect the evidence until the
coroner arrived.
Tennessee State Fire Marshal Bomb and Arson Section Investigator Russell
Robinson, an expert in the origins of fire, testified that he was contacted by Chief Thomas
on December 2, 2016, regarding the fire and fatality. Investigator Robinson said that he
received a dispatch around 7:06 p.m. and that he arrived around 8:00 p.m. He said he
notified his supervisor, Investigator W.C. Hamm, and asked for the K-9 Unit to come to
the scene. He said the K-9 Unit had dogs trained to detect the presence of accelerants. He
said Investigator Zimmerman and his dog, Scooter, responded.
Investigator Russell testified that when he arrived at the scene, he spoke with Agent
Burkhart, Investigator Sweeney, and unidentified Bedford County Fire Department
personnel. He said Lieutenant Todd Carter told him about the fatality.
Investigator Russell testified that he prepared a written Origin and Cause Report
regarding the fire in this case, and the report was received as an exhibit. Referring to his
report, Investigator Russell said he classified the fire as incendiary, meaning it had been
intentionally set. He said two points of origin existed: the area around the head of the bed
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and floor area of the left rear bedroom and at the floor level near the front entrance to the
house and near the victim’s body.
Investigator Russell testified that he agreed with Lieutenant Carter’s report of a
gasoline-like odor. He said that photographs were made before anything was moved and
before the dog went into the house to locate the odor of any accelerants. He said that after
the dog searched the house, Investigator Zimmerman told him that the dog had indicated
two areas which might contain accelerants. Investigator Russell said he learned from TBI
agents or local detectives that a truck was missing from the driveway.
Investigator Russell testified that when collapsed siding was removed from the
porch, the investigators found “red brown staining” that they suspected was blood. He said
they also “noticed a potential footprint in the blood” on the porch that had been protected
by the fallen siding. He said the evidence at the scene was collected by the TBI for analysis.
Investigator Russell testified that investigators found a gasoline jug in the far right
bedroom. He said that adding gasoline to a fire would cause the fire to spread more quickly
than it otherwise would.
Investigator Russell testified that firefighters told him a struggle appeared to have
taken place in the living room and that the firefighters were emphatic that they had not
knocked over the furniture while extinguishing the fire. Investigator Russell said a safe
was on the rear back wall of the living room. He said that the safe was unlocked and that
the door was closed but “kind of cracked open.” He said the contents of the safe were in
disarray and “[s]ome of the shelving was knocked off.” He said the contents of the safe
were “very, very small” in relation to the size of the safe, which was a metal gun safe. A
photograph of the safe was received as an exhibit.
Investigator Russell identified a photograph of a camouflage jacket in the house’s
kitchen. He said the dog indicated the presence of an accelerant on the jacket. He identified
a photograph of the gasoline can, which he said contained a “residual” amount of gasoline.
The photographs were received as exhibits.
Investigator Russell testified that he observed unusual wounds on the victim’s body
that he thought might be from a knife or gunshot and that the investigators found a knife,
which they asked Agent Burkhart to collect. Investigator Russell said two knives sat on a
kitchen counter. He said a knife with a broken tip sat on a different kitchen counter near
the front door. He said the investigators found cigarette lighters near the body. He said
they found keys, a Ruger ammunition box, a shell casing, a cigarette butt, and an airsoft
gun in the living room. An evidence log was received as an exhibit. Diagrams of the scene
prepared by Investigator Russell were received as an exhibit.
-7-
Referring to the diagrams, Investigator Russell testified that a syringe and “security
camera remains” were found in separate locations in the front yard. He said a cigarette
lighter and six “red/brown” stains were found in various locations in the right side yard.
He said a red/brown stain was found in the backyard. He agreed that Detective Sweeney
found all of the items in the yard.
Investigator Russell testified that the victim’s body lay on its back with the head
nearest the front door. He said that if another witness said the body had been facedown,
the other witness was incorrect. Investigator Russell said that the victim’s hands were
bound behind the victim’s back and that the victim’s feet were bound. Investigator Russell
said that when Dr. Rupert was present, the investigators rolled the victim’s body to look
for wounds in addition to injuries to the neck and the side of the head. Investigator Russell
said he noticed an odor that smelled like gasoline when the body was rolled. He said the
odor came from under and around the victim. Investigator Russell said a large amount of
what appeared to be blood was around the victim’s head.
State Fire Marshal’s Investigator Michael Zimmerman testified that he was the
handler for Scooter, a trained dog and that he and Scooter responded to the scene in this
case. He said that after he inspected outside the house for safety issues, he took Scooter
into the house. He said that Scooter sat next to the remains of a bed in what was previously
identified as the left back bedroom. He said that Scooter sat to indicate the possible
presence of an accelerant. He described the left back bedroom as having been completely
burned and having “reached the point of flashover.” He said the floor in the area in which
Scooter indicated the possible presence of an accelerant was burned through. He said that
he took Scooter through the other rooms of the house and that Scooter indicated a second
area containing the possible presence of an accelerant on a camouflage jacket or “hoodie”
in the kitchen. He said Scooter did not indicate the possible presence of an accelerant when
Scooter sniffed the victim’s body. A photograph of the area around the clothing on which
Scooter indicated the possible presence of an accelerant was received as an exhibit.
Investigator Zimmerman testified that the victim’s body was “burnt” and that after
other investigators rolled the body, he saw the victim’s hands were bound behind the
victim’s back and smelled the odor of gasoline coming from underneath the body. When
asked why Scooter might not have indicated the possible presence of an accelerant when
she sniffed the victim’s body, Investigator Zimmerman said that she was trained to work
toward the source of an odor and that the odor from the camouflage jacket may have been
stronger than any odor from the body.
Joy Vail-Allman testified that she and her husband owned several rental properties
near their farm, including the house involved in the fire in this case. She said the victim
was her tenant on December 2, 2016. She said she was out of town on the date of the fire
but that her son called to tell her about the fire and the discovery of the deceased victim
-8-
inside the house. She said that there had been no mortgage on the property and that she
did not give anyone permission to set the fire. She said the victim had been an excellent
tenant.
Timothy Cox testified that he was one of Ms. Allman’s tenants in December 2016
and that he lived near the victim’s house. He said Ms. Allman had a caretaker for her rental
properties whose name he did not remember. Mr. Cox said the caretaker was the first
person he saw at the fire. Mr. Cox said the victim had a brownish-yellow dog that he
thought was a hunting dog. Mr. Cox said the victim had a “good looking . . . gray Ford
truck.”
Mr. Cox testified that on the night of the fire, he was at home after work with his
daughter, who was age ten at the time. Mr. Cox said that when he drove into his driveway
after work around 3:30 or 4:00 p.m., he saw a small car parked “before” the entrance to his
driveway. He said two white men whom he did not know were inside the car. He said that
his daughter and her friends were playing outside and that he was concerned about the men
being nearby. He said he stared at the men for a while before he went inside. He said he
never saw anyone get out of or into the car. He said that he went inside to eat, that he
looked outside after fifteen to twenty minutes and saw the car and the men were still there,
and that he went outside to his garage near where the children were playing.
Mr. Cox testified that after about fifteen to twenty minutes from his going to the
garage, his daughter came into the garage and asked him if he smelled smoke. He said he
told her someone was probably burning leaves. He said that she left and came back quickly
and that she stated, “Daddy, the trailer next door is on fire[.]” He said he walked outside,
saw the fire, saw “Ben,” a neighbor, pull up and run to the burning house, and saw a male
neighbor from across the street who he thought was “part of the fire department” arrive.
Mr. Cox said the neighbor and Ben beat on the door or tried to open the door of the burning
house. Mr. Cox said he and his daughter stood on the “other side of the yard” and watched
the house burn. He said that the smoke was thick and that the heat melted the siding on his
house. He said that when his daughter got his attention about the fire, the car and the two
men he had seen earlier were gone. He said he had not seen them leave.
Mr. Cox’s daughter testified that she was currently twelve years old and in the sixth
grade. She agreed that she had been age ten in 2016. She said that in 2016, she lived with
her father, grandmother, and two sisters in a house on Highway 231. She said she knew
the victim on sight but did not know him well. She agreed he had a dog and said the victim
drove a truck.
Regarding the day of the fire, Mr. Cox’s daughter testified that she played with her
best friend after they arrived home from school around 3:30 p.m. Mr. Cox’s daughter said
she saw the victim and his dog come home shortly after she got home, which she agreed
-9-
was before dark. She said she saw a dark green car parked “[b]etween the trees” that were
between her house and the road. She said she saw the car within a few mintutes after she
arrived at home. She said that her father came home around 4:30 p.m. and that the green
car was parked between the trees before he arrived. She said she saw five people in the car
and that three got out and walked to the victim’s house. She said they wore “black pants
and really dark hoodies” with the hoods pulled over their heads. She said she and her friend
ran to the side of her house and went inside when the people walked past her house. She
agreed that her father was home at this point. She said she and her friend went inside
around 5:00 p.m. She said that at some point, her friend left to go home because the friend
was scared. Mr. Cox’s daughter said that as she watched a YouTube video on her
computer, she heard a gunshot around 6:00 p.m. She said that she asked her grandmother
if her grandmother heard the noise but that her grandmother said no. Mr. Cox’s daughter
said she returned to using her computer until she smelled smoke. She said that she went to
ask if her father knew if anyone was having a bonfire and that he said, “I don’t know.” She
said she went outside and saw smoke rising from the neighbor’s house.
When shown a photograph of a car, Mr. Cox’s daughter agreed she had previously
identified the car to Agent Burkhart as the one she saw outside her house on the date of the
fire. She said she did not see the car leave.
Bedford County Sheriff’s Investigator John Sweeney testified that Lieutenant Jason
Kennedy called him to come to the scene of the fire around 7:00 p.m. on December 2, 2016.
Investigator Sweeney said that several other fire, medical, and law enforcement personnel
were present when he arrived and that the TBI was called to assist later that evening.
Investigator Sweeney testified that the burned house was a total loss. He said the
victim’s body had been damaged by the fire and that the victim had other injuries including
a bullet hole behind one of the ears and some cuts. Investigator Sweeney said he saw a
large amount of blood.
Investigator Sweeney testified that he searched for evidence in the victim’s yard.
He said he found a syringe, which was collected as evidence. The syringe, a photograph
of the syringe in the location in which it was found, and a photograph depicting the location
of the syringe in relation to the house were received as exhibits. Investigator Sweeney said
he found a camera hood or shield in the yard. He said that the investigators found evidence
of a surveillance system inside the house but that no camera was recovered. A photograph
of the camera shield was received as an exhibit. Investigator Swiney said a cigarette lighter
was found in the yard. A photograph of the lighter was received as an exhibit.
Investigator Sweeney testified that he noticed small drops of a reddish-brown
substance that looked like blood in multiple locations in the yard. He said he or Agent
Burkhart collected samples from the drops. He identified photographs depicting markers
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where evidentiary items were located in the yard, and the photographs were received as
exhibits. The photographs depicted the markers in a trail pattern extending between the
side and rear of the house.
Investigator Sweeney testified that he had thought it was unusual that the victim did
not have a vehicle at the house and agreed he had thought a vehicle might be missing in
connection with the fire and death of the victim. He agreed the investigators learned from
interviewing the Cox family that a dark green car might be of interest to the investigation.
Investigator Sweeney said that during the night, he and Agent Burkhart sat in Investigator
Sweeney’s truck parked on the edge of Highway 231 waiting for the crime scene
investigators and for dawn. Investigator Sweeney said that while he and Agent Burkhart
sat in the truck, they saw a dark green car drive toward them and then make a U-turn and
head “back toward Rutherford County.” He said they followed the car but never stopped
it because in the process of looking for it, they saw the victim’s truck parked on the side of
Highway 231. He said the truck was two to five miles from the victim’s house, near the
Rutherford County line. He said they saw a dog inside the truck and what appeared to be
blood on the outside of the truck. He said the right front tire was flat and a ladder was in
the bed of the truck. He said the other front tire might have been flat. He identified
photographs of the truck, which were received as exhibits. He said the apparent blood
stains were collected as evidence, using the same method as was used to collect the drops
of apparent blood in the yard at the house. He said that after the evidence was collected,
the truck was towed to “the EMA Building” and later to the TBI Laboratory.
Investigator Sweeney testified that he and Lieutenant Jason Kennedy went to
Jereisse Fleming’s house on December 7, 2016. Investigator Sweeney said Ms. Fleming
was the Defendant’s and Myron Fleming’s aunt. Other evidence showed that the
Defendant and Myron Fleming were brothers. Investigator Sweeney said other law
enforcement officers had been to Ms. Fleming’s house a day or two earlier. He said Ms.
Fleming permitted him and Lieutenant Kennedy to search the house, including a bedroom
“associated with” the Defendant. Investigator Sweeney thought the room had two beds.
He said he and Lieutenant Kennedy collected ATM receipts, which were in a trash can in
the bedroom. He identified two pieces of paper as the ATM receipts, which he said were
from Pinnacle Bank, and were received as exhibits. He said the receipts were dated
December 2, 2016, and that the time stamps were 23:19:33 and 23:20:34. He said that the
last four digits of the account associated with the receipts were 0146 and that both
transactions took place at 123 Cason Lane in Murfreesboro. He said the receipts bore
sequential numbers, meaning the transactions occurred one right after the other. He said
the receipts indicated that both transactions had been unsuccessful because they stated,
“withdrawal from checking, unauthorized use.”
Investigator Sweeney testified that he, Agent Burkhart, Special Agent Russ
Winkler, and Special Agent Josh Savley went to Florida on December 8, 2016, after
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learning that the Defendant, Myron Fleming, and Autumn Slade were in Florida.
Investigator Sweeney said he was present for and participated in Agent Burkhart’s
interview of the Defendant in Florida. Investigator Sweeney agreed that Sumter County,
Florida Sheriff’s Department had possession of a green Honda Accord in its evidence bay.
He agreed that the car was searched pursuant to a search warrant by a Sumter County
deputy. He agreed that the car was full of items and appeared as if someone were “living
out of” it. He said the car and its contents, which had been collected as evidence, were
returned to Tennessee. He said the car contained Nike Shock shoes but no Nike Air Jordan
shoes, a couple of knives, and thirteen or fourteen “devices,” which included ten or eleven
cell phones.
TBI Agent Zachary Burkhart testified that on December 2, 2016, Lieutenant
Kennedy called him for assistance in investigating a suspicious death. Agent Burkhart
testified that he went to the scene of the house fire. He said that he and Detective Sweeney
were in charge of processing the scene and collecting evidence. Agent Burkhart said he
obtained a search warrant before entering the house. He said that when he returned from
obtaining the warrant, Detective Sweeney notified him of the suspected blood drops “going
around the side of the house.” Agent Burkhart said that the house was “[v]ery dark and
charred” when he entered and that he saw the victim’s body near the front door. Agent
Burkhart said that the victim was face up on the floor and that Agent Burkhart smelled an
odor like gasoline when the investigators rolled the victim’s body. Agent Burkhart said
that when the victim’s body was rolled, Agent Burkhart saw bright green duct tape around
the victim’s hands. Agent Burkhart identified a photograph of the victim’s body showing
the bound hands, and the photograph was received as an exhibit. Agent Burkhart said the
victim wore cowboy boots, which were bound together with a zip tie and duct tape. He
agreed that the duct tape on the victim’s ankles was charred and discolored.
Agent Burkhart testified that the victim had a one to two inch cut on his neck near
his Adam’s apple. Agent Burkhart said that the body was charred to an extent that facial
recognition would not have been possible for someone who knew the victim.
Agent Burkhart testified that a large, unlocked safe sat in the house’s living room.
He said that the safe’s door was slightly open and that its contents were disheveled and fire
damaged. He agreed that vinyl siding had burned and fallen onto the front porch. He
identified a photograph of the porch and the burned siding, which was received as an
exhibit. He said that after the siding was removed from the porch, the investigators found
bloody shoe prints. He said that Special Agent Miranda Gaddes of the TBI Crime Scene
Response Unit was called to process the bloody shoe prints on December 3, 2016. Agent
Burkhart said Agent Gaddes identified footprints as having been made by two pairs of
“Jordan” shoes. He identified photographs of the house, which were received as exhibits.
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Agent Burkhart testified that he found a nine-millimeter cartridge casing and an
airsoft gun in the living room. He said a gas can was collected from the right bedroom.
He said two knives were collected from a kitchen counter. He said that several knives were
found in the house. He said a knife with a broken tip was found on a kitchen counter near
the front door. He said the investigators collected a cigarette butt from the living room
because it might contain DNA evidence. He said a DVR which “appeared to be a DVR
you would hook up to a monitor . . . for a surveillance system” was found in the living
room. He said the DVR was not connected and was not functional when it was found. He
said they collected a black Samsung cell phone in the living room. He said the TBI Violent
Crime Response Team came later and collected additional evidence.
Agent Burkhart identified a photograph of the victim showing the victim’s cowboy
boots and hand and ankle bindings and photographs of bloody shoe prints on the victim’s
porch. The photographs were received as exhibits.
Agent Burkhart testified that his research showed the value of the victim’s truck, a
2005 Chevrolet Silverado, was $3986 to $7073. He said the investigators received
information from the victim’s ex-wife about a tattoo on the top of the victim’s right arm.
He said the victim was identified by the tattoo. Agent Burkhart said he learned during the
investigation that the victim’s girlfriend at the time of his death was Amber Abrams.1
He
said Ms. Abrams identified John Paul Rowe and Chasity Smith as two of the victim’s
friends. He said that Mr. Rowe and Ms. Smith were interviewed and mentioned Myron
Fleming’s and the Defendant’s names. Agent Burkhart said the Defendant was identified
as being the victim’s driver. Agent Burkhart said that investigators went to Ms. Fleming’s
house on December 5, 2016, and learned that Myron Fleming and the Defendant had been
staying there but had left on December 3. Agent Burkhart said he spoke with Samantha
McBride, a friend of Myron Fleming or the Defendant, on December 6.
Agent Burkhart testified that he subpoenaed the victim’s Pinnacle Bank records
after learning that the victim had money from the sale of a house. He said the bank records
showed a transaction at 7:30 p.m. on December 2, 2016, which was after the first
responders were called to the house fire, meaning the transaction took place after the
victim’s death. He said the transaction occurred at Capital Bank on Cason Lane in
Murfreesboro. He said a second transaction on the victim’s bank account occurred at
approximately 11:20 p.m. at Pinnacle Bank on Cason Lane in Murfreesboro, which he said
was “[n]ot very far from” Capital Bank. He said this transaction corresponded with one of
the ATM receipts recovered from Ms. Fleming’s house. He said another transaction on the
victim’s bank account occurred shortly after 11:20 p.m., again at Pinnacle Bank on Cason
Lane. He said Ms. Fleming’s house was about one-half mile from the two banks on Cason
1 Other evidence showed that this person’s name was Amber Abrahams.
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Lane. He agreed that he obtained a computer tablet and cell phones from Ms. Fleming,
which were later subjected to forensic analysis.
Agent Burkhart testified that he obtained still photographs from Zach Evans, a
security department employee of Pinnacle Bank, and that he later obtained video
surveillance footage from Pinnacle Bank. Agent Burkhart said he contacted John Znachio,
a security department employee of Capital Bank, who provided still photographs of the
transaction at the Capital Bank ATM. Agent Burkhart identified the banks’ respective
locations on an aerial photograph, which was received as an exhibit. He said he obtained
video surveillance footage from Target and TJ Maxx stores three or four miles from the
banks.
Agent Burkhart identified photographs he obtained from Capital Bank. He said that
the photographs depicted a white male using the ATM and that he recognized the individual
as the Defendant. The photographs were received as exhibits. Agent Burkhart identified
a photograph he received from Pinnacle Bank for the ATM transaction at 23:19:12 on
December 2, 2016, which he said depicted the Defendant. The photograph was received
as an exhibit.
Agent Burkhart identified video surveillance footage of a Pinnace Bank ATM
transaction from November 26, 2016 at 16:53. He said the video showed the victim’s truck
coming through the ATM backward, the victim getting out of the truck and using the ATM,
and the Defendant driving the truck. Agent Burkhart identified video surveillance footage
of a Pinnacle Bank ATM transaction from November 26, 2016 at 11:17. He said the
footage showed the Defendant driving the unidentified vehicle backward through the ATM
lane. Agent Burkhart identified video surveillance footage from Pinnacle Bank on
November 28, 2016 at 12:49, which he said depicted the victim coming into the bank to
withdraw cash and “switch a bank account.” Agent Burkhart said this footage did not
depict the Defendant.
Agent Burkhart identified December 1, 2016 video surveillance footage from Ms.
Fleming’s house and a neighboring house. He said the footage depicted the victim and
Chasity Smith arriving at Ms. Fleming’s house at 4:25 p.m. He said the footage showed
Myron Fleming coming out of Ms. Fleming’s garage and the victim “[g]rabbing his
ladder.” Agent Burkhart said Ms. Smith went inside the Fleming house and came outside
a few minutes later. He said that the footage showed only Myron Fleming in the garage
with the victim and that the footage showed the victim’s truck leave the Fleming house.
Agent Burkhart identified video surveillance footage from inside a Pinnacle Bank
branch in Donelson from December 2, 2016 at 4:11 p.m. He said the footage showed the
victim and did not show the Defendant, and he agreed that the footage showed the victim
“taking something and puts his glasses back on and leaves.” Agent Burkhart said bank
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records and video surveillance footage showed the victim withdrew $2500 on December
2.
Agent Burkhart identified video surveillance footage from Ms. Fleming’s house
which he said showed the Defendant leaving Ms. Fleming’s house in a green car at 3:34
p.m. on December 2, 2016. Agent Burkhart said the Defendant wore a black jacket, a red
shirt, pants, and “what appear[ed] to be Jordan shoes.” Agent Burkhart identified video
surveillance footage which he said showed Myron Fleming’s 1993 green Honda Accord in
the Murfreesboro parking lot outside TJ Maxx and Target on December 2, 2016, at about
3:45 p.m. Agent Burkhart said the footage showed Myron Fleming enter Target at 3:45
p.m. and leave at 3:52 p.m. Agent Burkhart said the footage showed the Defendant enter
TJ Maxx at 3:44 p.m. and leave at 3:57 p.m. Referring to footage from inside TJ Maxx,
Agent Burkhart said the Defendant wore a red shirt, black jacket, and what appeared to be
Jordan shoes. Agent Burkhart acknowledged that the Defendant’s jacket did not appear to
have a hood. Agent Burkhart said footage showed the green car leaving the parking lot at
3:58 p.m.
Agent Burkhart identified video surveillance footage from Capital Bank at 11:18
p.m. on December 2, 2016. He said it showed the Defendant wearing a white zip-up jacket
with a hoodie over his head and a blue beanie. Agent Burkhart identified video surveillance
footage from Ms. Fleming’s neighbor’s house, which he said showed three people, one of
whom was the Defendant, enter Ms. Fleming’s house at 11:30 p.m. Agent Burkhart said
the Defendant wore a blue beanie, a shirt with an emblem on the back, and blue jeans.
Agent Burkart said Autumn Slade, who was Myron Fleming’s girlfriend, was one of the
individuals shown. Other evidence showed that Myron Fleming was the third individual.
Agent Burkhart identified video surveillance footage from Ms. Fleming’s
neighbor’s house from December 3, 2016. He said it showed a green Honda Accord
arriving at Ms. Fleming’s house and Ms. Fleming coming out of the garage. Agent
Burkhart agreed that “they” interacted briefly and that Ms. Fleming left to walk her dog.
Agent Fleming said footage from inside Ms. Fleming’s garage showed “they” got into the
car with Ms. Slade and left. Agent Burkhart said these portions of footage were from 8:33
a.m. on December 3. An electronic media storage device containing the video surveillance
footage was received as an exhibit.
Agent Burkhart testified that forensic analysis of the devices he obtained from Ms.
Fleming included telephone numbers and Facebook information for the Defendant and
Myron Fleming. Agent Burkhart said Myron Fleming’s Facebook Messenger account
contained a photograph of a white Jordan shoe with a black sole. Agent Burkhart said the
Defendant’s Facebook Messenger account likewise contained a photograph of a “mostly
black” Jordan shoe with a green handkerchief or bandana. Agent Burkhart acknowledged
that he did not know if either man owned the shoes in the photographs and that he did not
-15-
know the sizes of the shoes in the photographs. Agent Burkhart said both Facebook
Messenger posts were dated December 2, 2016. He said the Defendant’s Facebook
Messenger account contained a December 3, 2016 post which stated, “So I got $2,500, a
legit car, my brother, a couple of firearms, and a few bags clothes [sic]. I just crossed the
GA line. We are on 75 South, I’m ready to get on with my life.”
Regarding the December 8, 2016 interview of the Defendant in Sumter County,
Florida, Agent Burkhart testified that Investigator Sweeney advised the Defendant of his
Miranda rights and that the Defendant waived his rights and agreed to the interview. Agent
Burkhart said the interview lasted almost eight hours. He said they advised the Defendant
that they were investigating a homicide but did not identify the victim. Agent Burkhart
described the Defendant as “a little taken aback” and in “a lot of psychological discomfort.”
Agent Burkhart said they asked the Defendant about work, that the Defendant did not say
he had worked for the victim, and that the Defendant claimed to have been working in
construction for “Steve.” Agent Burkhart said they talked to the Defendant about people
with whom the Defendant had associated in Tennessee. Agent Burkhart said that he
eventually showed the Defendant a photograph of the victim and that the Defendant’s
response “was something along the lines of you are not going to show me a dead person or
a dead body or something like that.” Agent Burkhart said the Defendant stated that he
knew the victim because the Defendant “had done . . . a tattoo on him” related to the
victim’s son and that the Defendant and the victim had a disagreement about how the tattoo
should look. Agent Burkhart said that, at this point or shortly thereafter, the Defendant
mentioned he had worked for the victim. Agent Burkhart said the Defendant stated he
“didn’t know exactly where” the victim lived. Agent Burkhart agreed he knew that the
Defendant had been to the victim’s house and that he had not disclosed this information to
the Defendant, as well as information about the relationship between the Defendant and
the victim, in order to assess whether the Defendant was “going to be up front and talk
about” the information already obtained in the investigation and to gauge the Defendant’s
truthfulness. Agent Burkhart described the Defendant as “very hesitant to talk about
anything related to” the victim and agreed the Defendant seemed to try to distance himself
from the victim. Agent Burkhart said the Defendant eventually stated that he had given
the victim a chest tattoo at the victim’s house and that the tattoo had taken “a lengthy
amount of time.” Agent Burkhart thought the Defendant stated he had been paid for the
tattoo, but Agent Burkhart did not recall the amount. Agent Burkhart thought the
Defendant stated he drove for the victim for “a day.”
Agent Burkhart testified that, during the interview, the Defendant stated that he met
John Paul Rowe through the victim and that he met the victim “through doing the tattoo.”
Agent Burkhart stated that the investigators had spoken with Mr. Rowe before they
interviewed the Defendant and that they knew at the time of the interview that the
Defendant, the victim, and Mr. Rowe spent time together.
-16-
Agent Burkhart testified that he knew about the Jordan shoeprints at the scene from
Agent Gaddes but that he did not know about the Facebook Messenger posts containing
photographs of Jordan shoes at the time of the Defendant’s interview in Florida. Agent
Burkhart said he told the Defendant that he was a “shoe guy,” that they discussed shoes
they wore when they were younger, and that they had a long conversation about shoes.
Agent Burkhart said the Defendant stated he wore size ten. Agent Burkhart said that the
Defendant had worn white Nike Air Jordan shoes when the Defendant was arrested, that
the Defendant stated the shoes were his, and that Agent Burkhart took possession of the
shoes from a Florida officer. Agent Burkhart said the shoes the Defendant wore at the time
of the arrest were similar to Myron Fleming’s Facebook Messenger photograph of Jordan
shoes. Agent Burkhart described Air Jordans as “a common, expensive brand.”
Agent Burkhart testified that he eventually told the Defendant “exactly why [he
was] talking to” the Defendant. Agent Burkhart said the Defendant “was taken aback.”
Agent Burkhart agreed that the Defendant said, “[H]ey man, I didn’t kill anyone,”
repeatedly during the interview. Agent Burkhart said the Defendant’s statement about
having worked for the victim was made after the discussion of shoes. Agent Burkhart
agreed that the Defendant asked if the victim were the person who was dead.
Agent Burkhart agreed that he asked the Defendant about an incident at the victim’s
house in which the victim thought “a girl” had taken $50. Agent Burkhart said the
Defendant stated he told the victim “just don’t worry about it” and to take the money from
the Defendant’s paycheck. Agent Burkhart agreed that this occurred before the victim went
to Ms. Fleming’s house to get a ladder.
Agent Burkhart testified that he asked the Defendant about the photographs of the
Defendant at the bank. Agent Burkhart stated that the Defendant said the victim “would
give his card [sic].” Agent Burkhart said that near the end of the interview, he revealed to
the Defendant that the photographs were taken after the victim’s death. Agent Burkhart
said the Defendant stated that the victim gave the card to the Defendant “because he worked
for him” and that the victim gave the Defendant the card but not the PIN because the card
worked without the PIN. Agent Burkhart agreed the Defendant stated he had given the
card back to the victim at some point.
Agent Burkhart testified that at the time of the interview, the Defendant had
scratches on his hands, possibly on the inner palm. Agent Burkhart said the Defendant’s
hands were “kind of beat up.” Agent Burkhart said the Defendant’s hands showed signs
of healing but probably had bled at one time. Agent Burkhart thought the Defendant had
bruising but could not recall where.
Agent Burkhart identified a photograph of a 1993 green Honda Accord at Ms.
Fleming’s house. He said he obtained the photograph from Ms. Fleming’s home security
-17-
system. He said that he showed the photograph to Mr. Cox’s daughter and that she
identified the car as the one she saw near her house on December 2, 2016.
Agent Burkhart acknowledged that the forensic analysis of the Defendant’s Air
Jordan shoes revealed the Defendant’s blood “but nothing else.” He agreed the forensic
analysis did not find the victim’s blood on the shoes.
Agent Burkhart agreed that the Defendant’s and Myron Fleming’s cell phones were
analyzed for location data and that Myron Fleming’s cell phone was near the victim’s house
around the time of the homicide. When asked if the analysis showed that the Defendant’s
cell phone was not near the victim’s house at the time of the homicide, Agent Burkhart
said, “I do not know that,” and stated he would defer to the cell phone expert who analyzed
the Defendant’s cell phone. Agent Burkhart agreed that the Defendant had Verizon cell
phone service. Agent Burkhart said that he had sent a “preservation letter” to Verizon but
that he had no information regarding the location of the Defendant’s cell phone on the night
of December 2, 2016 because it had not used a Verizon tower.
Agent Burkhart agreed that the victim’s and Myron Fleming’s blood were
intermingled in samples collected from Myron Fleming’s car after it was recovered in
Florida. Agent Burkhart did not think the Defendant’s blood was found intermingled with
the victim’s blood in any samples collected from Myron Fleming’s car.
Agent Burkhart agreed that, based upon the video surveillance footage from the
evening of December 2, 2016, the Defendant changed clothes at least three times within
six hours and that the Defendant changed clothes an additional time before he went to Ms.
Fleming’s house after going to the ATMs.
First Tennessee Bank Senior Corporate Investigator Timothy Ramsey testified that
First Tennessee Bank acquired Capital Bank in December 2017. He said that John Znachio
had been employed by Capital Bank and later First Tennessee Bank but had recently
retired. Mr. Ramsey said he had reviewed information Mr. Znachio provided to the TBI
regarding the present case.
Mr. Ramsey testified that the former Capital Bank branch on Cason Lane, which
had been closed after being acquired by First Tennessee Bank, had security cameras, which
were predominantly motion activated. Mr. Ramsey said Mr. Znachio provided law
enforcement with photographs or video surveillance footage from December 2, 2016 at
approximately 7:27 until 7:31 p.m. Mr. Ramsey identified still images from the
surveillance footage recorded when the victim’s credit card was used to access the Capital
Bank ATM on Cason Lane, and the images were received as exhibits.
-18-
Pinnacle Bank IT support employee Zach Evans testified that he identified security
footage relevant to this case, which he provided to the TBI. He identified four surveillance
footage videos, which corresponded to transactions on November 26, 2016, at 4:53 p.m.
from an unidentified Pinnacle Bank branch, November 27 at 11:17 a.m. at the Church
Street branch, November 28 at 12:49 p.m. at the Church Street branch, and December 2 at
4:11 p.m. at an unidentified branch. The videos were played for the jury.
Regarding ATM receipts he was provided, Mr. Evans testified that they
corresponded with attempted withdrawals from a checking account at the Cason Lane
branch on December 2, 2016, at 23:19 and 23:20. He said the receipts had sequential
sequence numbers, meaning that the person performing the transactions “put the card in
and tried and took the card out and put the card back in and tried again.” He identified
video surveillance footage from the transactions, which was played for the jury. A disc
containing the Pinnacle Bank surveillance footage was received as an exhibit. He agreed
that the person depicted in the December 2, 2106 footage from 23:18 and 23:20 wore a
jacket which appeared to be light colored, but he stated that the ATM’s lighting might
affect the color depicted on the footage.
Pinnacle Bank Financial Specialist Karla Kennedy testified that, in November and
December 2016, her job duties involved teller transactions and customer service at the
South Church Street branch in Murfreesboro. She said she knew the victim, who was a
regular customer. She said that the victim usually drove himself through her drive-through
lane and that a few weeks before the victim’s death, the Defendant began driving for the
victim. She said she saw the Defendant driving for the victim two or three times. She said
the victim had a Chevrolet truck which was possibly a Silverado.
Ms. Kennedy testified that, at some point, the victim came inside the branch and
wanted to cash a check for approximately $37,000. She said bank policy required the check
to be deposited and funds not to be released until the check cleared. She said the victim
became irate and left. She said the victim went outside to the passenger side of his truck
“as if he [were] getting something out of the glove compartment.” She said the Defendant
was in the truck. She said that the victim returned, that he was still upset, that he went to
another bank, and that he returned to her branch about one hour later and deposited the
check, although she did not handle the transaction when he returned. She identified
surveillance footage of the victim making the deposit with Barbara Austin, a bank
employee, and the footage was played for the jury.
Ms. Kennedy testified that, on a date she did not recall, the victim came to the bank
and “wanted to change his account” because “[s]omeone had his . . . financial information”
but that she did not help him on that occasion. She said the Defendant drove the victim to
the bank on this date.
-19-
Pinnacle Bank employee Barbara Austin testified that, in December 2016, she
supervised the tellers in the Murfreesboro branches and that she worked at the South
Church Street branch. Regarding bank records previously provided to law enforcement,
Ms. Austin testified that the victim deposited $37,586.87 and withdrew $200 on November
16, 2016. She said she handled the transactions. She said the victim had wanted the entire
amount in cash but that bank policy was to release no more than $200 immediately with a
large deposit by check from another financial institution. She said she told the victim, who
was angry, to go to the other bank to cash the check. She said the victim returned later,
was still angry, made the deposit, and received $200.
Ms. Austin identified a document containing the victim’s account history from
November 7 until December 4, 2016, and the document was received as an exhibit. She
said three ATM withdrawals were made from the victim’s account on November 26, which
included one for $100. She said one $100 and two $200 ATM withdrawals were made
from the victim’s account on November 27. She said a $13,000 withdrawal was made from
the account on November 28. She recalled assisting the victim inside the bank’s lobby
with the November 28 withdrawal and said he wanted to close his account and open a new
one. She said she transferred $18,309.41 from the victim’s existing account to a new
account. She identified a document from the $13,000 withdrawal, and the document was
received as an exhibit. She identified November 28 video surveillance footage of herself
and the victim in the bank lobby, which was played for the jury.
Ms. Austin identified documents containing the victim’s bank account records for
the account he opened on November 28, 2016. She said two of the documents showed a
$2500 withdrawal made by the victim at the Donelson branch on December 2, 2016. She
identified a document containing a summary of the victim’s ATM transactions from
December 1 until December 4, 2016, and the document was received as an exhibit. She
said a December 2 transaction at 7:30 p.m. “did not go through” because of an “[i]ncorrect
pin.” She said the attempted withdrawal had been for $400 with an additional fee because
the attempt had been made at a financial institution other than Pinnacle Bank.
Ms. Austin identified the victim’s Pinnacle Bank credit card statement, which was
received as an exhibit. She identified ATM receipts, which had previously been received
as exhibits. She said the receipts reflected that the last four digits of the account number
for the transactions matched the last four digits of the victim’s credit card account.
When shown video surveillance footage from December 2, 2016 at 4:11 p.m., Ms.
Austin testified that she did not recognize the bank branch where the footage was filmed
but that she recognized the victim.
Orange County, Florida Sheriff’s Deputy Justin Van Schoonhoven testified that in
December 2016, he was a crime scene investigator for the Sumter County Sheriff. He said
-20-
that on December 9, he processed a green Honda with Tennessee registration. He agreed
the car had been located in Sumter County two days earlier. He said the Defendant had
driven into a law enforcement officer’s back yard and become stuck, that the officer’s wife
had notified law enforcement, and that Autumn Slade had been the Defendant’s passenger.
Deputy Van Schoonhoven said the car had been towed to the Sumter County Sheriff’s
Crime Laboratory. He agreed that Sumter authorities learned that the Defendant and other
individuals and the green Honda were of interest to Tennessee authorities. He identified
photographs of the car stuck in the yard and of the car, after the sunroof and other openings
were sealed, and during the execution of a search warrant at the crime laboratory. The
photographs were received as exhibits.
Deputy Van Schoonhoven testified that a prescription slip for diazepam bearing the
victim’s name and dated December 1, 2016 was found in the car. Deputy Van
Schoonhoven said the prescription slip had a red stain on the top right corner. He said the
back of the slip had two stains. The prescription slip and photographs of the stains were
received as exhibits. He said a field test of the stain was presumptively positive for blood.
He said that in order to avoid cross-contamination, he separately swabbed each of the three
stains for further testing.
Deputy Van Schoonhoven testified that he found six capped hypodermic needles in
the seal of the Honda’s sunroof. Referring to a photograph, he said it depicted a
hypodermic needle and what might be a small baggie containing residue. Photographs of
the needles were received as exhibits. He said he found a blue beanie on the front,
passenger floorboard. Photographs of the beanie were received as exhibits. When shown
a previously admitted photograph of an individual making an ATM transaction on
December 2, 2016, ending at 23:19, Deputy Van Schoonhoven said the beanie he found
appeared to be the same as the one worn by the person in the photograph. Deputy Van
Schoonhoven said that he found documents, two iPhones, a flashlight, hand sanitizer, “a
spray,” and two prescription slips bearing the victim’s name in the glove box. Photographs
of the glove box’s contents, including the front and back of the prescription slips, were
received as exhibits. Prescription slips for Ambien and Percocet, both of which were dated
December 1, 2016, and which bore the victim’s name, were received as exhibits. Deputy
Van Schoonhoven said that these prescription slips contained stains which tested
presumptively positive to be blood and that he collected samples for further testing. He
identified photographs of the contents of the backseat of the car, which were received as
exhibits. He said he found a “needle cap with a small green plastic baggie stuffed inside,”
a smoked cigarette, an unsmoked cigarette, and a cigarette lighter in the rear passenger
seat. He said the baggie contained white residue, which tested presumptively positive for
being cocaine when he conducted a field test.
Deputy Van Schoonhoven testified that he examined the contents of a purple
suitcase from the backseat of the Honda. He said that the suitcase was full and that the
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contents included a package of white and black zip ties. He agreed that the car’s trunk was
“very full of items” and said it appeared as if someone were “living out of” the car. A
photograph of the car’s trunk was received as an exhibit. Deputy Van Schoonhoven said
he found multiple stains throughout the car he suspected were blood, which he swabbed
for forensic examination.
TBI Technical Services Unit Special Agent Andrew Vallee, an expert in
communications analysis, mapping cellular forensics, and law enforcement use of
communication records, testified that some cell phone providers owned their towers, which
they used for routing calls. He said that other providers, such as prepaid “Tracphone”
providers, purchased data and minutes from larger companies that owned networks and
towers. He said a Tracphone user might utilize the network of different carriers from one
day to the next. He said that different providers captured different information regarding
a cell phone user’s location and movement and the content and the type of data used. He
said that a call might not always be routed through the closest cell tower.
Agent Vallee testified that he examined cell phone records for the Defendant, Myron
Fleming, and the victim. He identified a map of the area near the victim’s house, Ms.
Fleming’s house, the location where the victim’s truck was recovered, and commercial
locations in Murfreesboro which included Capital Bank, Pinnacle Bank, TJ Maxx, and
Target. The map also showed the location of AT&T cell towers.
Agent Vallee testified that the victim had cellular service through AT&T, that the
Defendant had a Tracphone, and that Myron Fleming had a prepaid AT&T Go phone.
Agent Vallee said Myron Fleming’s prepaid AT&T cell phone number was “valid” through
December 2, 2016 and that Myron Fleming established service with a different number
through Sprint on December 3, 2016.
Agent Vallee testified that on December 2, 2016 at 3:44 p.m., Myron Fleming’s cell
phone registered in the sector where Target was located. Agent Vallee agreed that if
cellular mapping showed Myron Fleming located at Target, it did not necessarily mean that
he was at Target but, instead, meant he was in the sector where Target was located. Agent
Vallee agreed that video surveillance footage placed Myron Fleming at Target at the same
time as the cell phone data indicated Myron Fleming had been in the sector.
Agent Vallee testified that data for the victim’s cell phone indicated the victim was
at home from 5:43 until 6:48 p.m. and that the victim’s cell phone “went off line” at 6:48.
Agent Vallee said this indicated the victim’s cell phone had been turned off, was no longer
connected to the network, or had been destroyed. Agent Vallee said the victim had
incoming calls after 6:48 but that they did not register to the network. Agent Vallee
identified an aerial photograph, which he said showed a cellular tower less than seventenths of one mile from the victim’s house. Agent Vallee said Myron Fleming’s cell phone
-22-
data indicated Myron Fleming’s cell phone was in the same sector as the victim’s house
from 4:53 until 6:25 p.m. Agent Vallee said the Defendant’s and Myron Fleming’s cell
phones were connected for a call at 6:49 p.m., with the records showing Myron Fleming
was in the area where the victim’s truck was recovered. Agent Vallee said Myron
Fleming’s cell phone was moving on Highway 231 North during a call between 7:11 and
7:12 p.m. Agent Vallee said Myron Fleming’s cell phone was used for a call from 7:29 to
7:36 p.m. Agent Vallee said the location of Mr. Fleming’s cell phone corresponded with
the cellular towers in the area of Capital Bank on Cason Lane, where video surveillance
footage existed of the Defendant’s having used an ATM. Agent Vallee said the location
of Mr. Fleming’s cell phone corresponded with two cellular towers near Pinnacle Bank on
Cason Lane from 11:10 until 11:33 p.m. and that it corresponded with the surveillance
video footage of the Defendant using a Pinnacle Bank ATM from 11:19 until 11:20 p.m.
Agent Vallee said Mr. Fleming’s cell phone activity from 11:23 to 11:57 p.m. placed him
in the area of Ms. Fleming’s house, and he agreed this corresponded with video footage
evidence showing him at Ms. Fleming’s house at 11:30 p.m. Agent Vallee agreed that a
person’s location would not be shown on a cellular network if they were not using their
device at the time.
Agent Vallee testified that Myron Fleming’s Sprint cell phone began showing
cellular activity on December 3, 2016 in the Atlanta, Georgia area at 10:37 a.m. and that it
continued in Atlanta until December 4 at 9:24 p.m. Agent Vallee said Myron Fleming’s
cell phone began showing cellular activity on December 4, 2016 at 9:21 p.m. in Central
Florida, which continued through December 8, when Myron Fleming was arrested in
Wildwood, Florida.
2 Agent Vallee did not think Myron Fleming and the Defendant had
any cellular activity between their devices from December 3 through December 8, 2016.
Agent Vallee testified that the Defendant’s Verizon Wireless records were
subpoenaed but that they showed no activity on December 2, 2016, despite showing
activity on other dates. Agent Vallee said, however, that Myron Fleming’s cellular activity
showed a call between his cell phone and the Defendant’s cell phone on December 2,
despite the lack of activity shown on the Defendant’s Verizon records. Agent Vallee said
he concluded that because the Defendant’s cell phone was a Tracphone, it had used another
network on December 2. Agent Vallee said that by the time he became involved in the
case, the time had elapsed for obtaining cellular data for the Defendant’s cell phone number
from other cellular providers. He said records were only maintained for one year. Agent
Vallee said he had not analyzed the Defendant’s cell phone device to determine if any
tracking data existed regarding the Defendant’s location during the relevant time period.
2 We acknowledge that the time Mr. Fleming was in Georgia and the time he was in Florida overlap by
three minutes. We have stated Agent Vallee’s testimony as it was given.
-23-
John Paul Rowe testified that Chasity Smith was his girlfriend. He said that in 2015
or 2016, he had “rented a place” from “Ms. A” on Highway 231 between Shelbyville and
Murfreesboro. He said he met the victim in 2012 when they worked together on a
construction project. He said the victim had been an electrician and that Mr. Rowe had
done “demo work.” Mr. Rowe said he and the victim had become friends, that they would
“hang out” and fish together. Mr. Rowe said the victim “worked and went home” and
“didn’t really bother anybody.” Mr. Rowe said the victim lived in Murfreesboro when they
met. Mr. Rowe said he and Ms. Smith lived at the victim’s Murfreesboro house for about
six months in approximately 2014. Mr. Rowe said the victim eventually sold the house
and moved to a house on Highway 231 in Shelbyville.
Mr. Rowe testified that, at the time of the victim’s death, the victim drove a
Chevrolet Silverado truck and had a light brown pit bull dog that was about one year old.
Referring to a previously admitted photograph exhibit, Mr. Rowe identified the victim’s
truck. Mr. Rowe said Ms. Smith drove the victim to and from work and to other places the
victim needed to go after the victim “got a DUI or something.” Mr. Rowe said that the
victim paid Ms. Smith $10 per hour and that Ms. Smith had been driving the victim for a
week or two before the victim’s death. Mr. Rowe said Ms. Smith did not have keys to the
truck. Mr. Rowe agreed that he had driven the victim for errands a few times and denied
that he drove the victim to a bank.
Mr. Rowe testified that he was on probation for possession of a weapon by a
convicted felon and aggravated assault. When asked about his other criminal history, Mr.
Rowe said, “I’ve got some driving on suspended licenses. . . . I had a rape charge. I’ve had
. . . possession of marijuana, I got convicted of that. There’s been several.” He agreed he
may have forgotten additional offenses. He agreed that he had been sober since completing
a rehabilitation program four months ago. He said that he had been working as a machinist
for the past four or five months.
Mr. Rowe testified that he and Ms. Smith lived in a hotel in December 2016 and
that he was using drugs at the time. He said that he had recently been released from jail
and that he had no money and no place to go. He said that the victim lived with the victim’s
dog but that no other person lived with the victim in December 2016. Mr. Rowe said the
victim had a safe against a wall between the kitchen and living room. Mr. Rowe said that
when he lived with the victim in Murfreesboro, the victim kept medical records, a ninemillimeter handgun, an SKS rifle, a twenty-two caliber pistol, bullets, and documents
related to the house in the safe, but Mr. Rowe did not know the contents of the safe after
the victim moved to Shelbyville.
Mr. Rowe testified that, after the victim sold the Murfreesboro house, the victim
came to see Mr. Rowe and offered to give him money to help him “settle down and get
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[his] life together.” Mr. Rowe said the victim also bought a motorcycle for $5000 after
selling the Murfreesboro house.
Mr. Rowe testified that he met Myron Fleming in jail in 2013. Mr. Rowe said he,
the victim, and Myron Fleming spent time together in Mr. Rowe’s hotel room. Mr. Rowe
said the three of them were together “down here in Bedford County” once or twice. Mr.
Rowe said they used drugs and drank beer together. Mr. Rowe said that, at the time, Myron
Fleming was staying with Myron Fleming’s aunt in Murfreesboro. Mr. Rowe said he met
the Defendant about one month before the victim’s death. Mr. Rowe said he had been
friends with Myron Fleming but that the Defendant “was around” but that the two of them
did not spend time together. Mr. Rowe identified Myron Fleming’s girlfriend as Autumn
Slade. Mr. Rowe said Myron Fleming and the Defendant spent time with the victim when
Mr. Rowe was not around. Mr. Rowe identified the victim’s girlfriend as Amber and
thought her last name was Abrahams. Mr. Rowe agreed that he thought she was a “bad
influence” on the victim. Mr. Rowe described Samantha McBride as “another person that
was around” and denied he had been in a relationship with her. He thought he had been
around her twice and said he met her through Myron Fleming. He agreed he introduced
the victim and Myron Fleming and said he did not find out “until later” that the victim and
Myron Fleming had been “hanging out.” Mr. Rowe agreed he had “heard” Myron Fleming
went to the victim’s house. He agreed he told the victim not to “hang out” with the
Defendant and Myron Fleming without Mr. Rowe’s being present based upon something
Ms. Smith told him that the Defendant had said.
Mr. Rowe testified that he knew in November or December that Myron Fleming had
the victim’s ladder. Mr. Rowe said that he had offered to pick up the ladder at Ms.
Fleming’s house but that he did not because the victim had wanted to retrieve the ladder
himself. Mr. Rowe said Ms. Smith went with the victim to pick up the ladder.
Mr. Rowe testified that on December 2, 2016, Ms. Smith had driven the victim to
work in the victim’s truck that morning. Mr. Rowe said he was at the hotel when Ms.
Smith came home around 4:00 p.m. Mr. Rowe said that after Ms. Smith arrived at the
hotel, the victim left in the truck. Mr. Rowe said the victim did not come inside to see him,
which was unusual. Mr. Rowe explained that the victim normally came inside to talk,
drink beer, or smoke a cigarette.
Mr. Rowe testified that he called the victim because he had expected but had not
received a call from the victim. Mr. Rowe said the victim did not answer. Mr. Rowe said
that he called a couple of hours later but that the victim’s cell phone was turned off. Mr.
Rowe said he had never known the victim to turn off his cell phone.
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Mr. Rowe testified that he learned about the victim’s death when TBI agents came
to the hotel. He agreed that no one had promised him anything in exchange for his
testimony.
Mr. Rowe testified that he had not been at the victim’s house on the night of
November 27 and the early morning hours of November 28, 2016.
Mr. Rowe acknowledged that he, the victim, and Ms. Smith used methamphetamine
together. Mr. Rowe agreed that methamphetamine was their “drug of choice” but that they
also used heroin and pills. Mr. Rowe agreed that he and the victim had disagreements but
said they never had any physical altercations.
Chasity Smith testified that she had known the victim since 2013 and that she met
him through Mr. Rowe. She agreed she and Mr. Rowe had lived with the victim in
Murfreesboro. She said the victim had bragged about making money from the sale of a
house. She agreed she had been concerned that the victim was “a little too obvious about
his money.”
Ms. Smith testified that she had not liked Myron Fleming. She said that she met the
Defendant through Mr. Rowe but that she did not “hang out” with the Defendant. She said
she knew Autumn Slade as Myron Fleming’s girlfriend. She said that the victim was
“with” Amber Abrahams but that she did not like Ms. Abrahams because “she was using
him” because he had money. Ms. Smith said she did not meet Ms. Abrahams “until right
at the end.”
Ms. Smith testified that the victim, Myron Fleming, the Defendant, Ms. Abrahams,
and Samantha McBride came to the hotel room to “party.” She said she and Mr. Rowe did
not want to do this because they had “changed.” She said the victim gave Mr. Rowe and
her $40 and the victim’s truck key for Mr. Rowe to take Ms. Smith to get something to eat.
When asked who paid for the drugs, she said, “Tim probably,” referring to the victim.
Ms. Smith testified that she saw the victim almost daily in the last week of his life
because she was driving him to and from work. She said the routine when she drove the
victim to work was for her to drive the victim’s truck from the hotel to the victim’s house
to pick him up and to take him to his worksite in Donelson. She said that she sat in the
truck while he worked and that they went back to Shelbyville around 3:00 to 3:30 p.m. She
said she dropped off the victim at his house and drove the truck to the hotel. She said she
was paid $100 per day.
Ms. Smith agreed that in the week of the victim’s death, Mr. Rowe received a call
from the victim and that she overheard the call because Mr. Rowe used a speakerphone.
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She agreed the victim had been upset about something that happened the previous night.
She said the call had come at night. She agreed she took the victim to work the next day.
Ms. Smith testified that the victim had a safe in his house between the kitchen and
the living room. She said it was visible from the front door. She had never seen inside the
safe and did not know its contents.
Ms. Smith testified that on December 1, 2016, she picked up the victim and took
him to a medical appointment, to a fast food restaurant, and to his worksite. She said that
she waited while he worked and that on the way home, they stopped at Ms. Fleming’s
house to get the victim’s ladder. She said that, based upon the previous phone conversation,
she did not think getting the ladder was a good idea. She said she called Mr. Rowe about
the matter. She said that she voiced her concerns to the victim but that he insisted. She
said that when they arrived at Ms. Fleming’s house, Myron Fleming and Ms. Slade sat in
the green Honda. She said Myron Fleming got out and talked to the victim. Ms. Smith
said she went inside to use the restroom, with Myron Fleming walking her inside to the
restroom. She said the Defendant came out of the restroom and that the Defendant asked
if she had heard that the Defendant “pulled a gun on” the victim to get the victim to open
the safe. She said she responded that she knew about it and that it “wasn’t funny.” She
said the Defendant laughed about the incident. She agreed the Defendant had said the
victim did not open the safe. She said that when she returned outside, the victim and Myron
Fleming had loaded the ladder and that she and the victim left.
Ms. Smith testified that on December 2, 2016, she drove to the victim’s house and
waited while he paid bills. She said they left around 10:00 or 11:00 a.m. to go to his
worksite. She said that after the victim finished work, they stopped at a bank in Donelson.
She said she did not go inside with the victim. She said she did not know the nature of the
business the victim transacted at the bank. She said they stopped at a store for the victim
to purchase gas, cigarettes, and beer. She said they went to the hotel, rather than to the
victim’s house, because the victim needed his truck over the weekend. She said that she
went inside the hotel and that the victim left. She said that she had asked the victim to call
Mr. Rowe and her to let them know he arrived home safely but that the victim never called.
She said both she and Mr. Rowe tried to call the victim that night and on Saturday. She
said the calls were directed immediately to voice mail. She agreed they did not have a car
to drive to check on the victim. She said they learned what happened to the victim from
the TBI on December 4. She said she never saw or heard from the Defendant and Myron
Fleming after she had seen them at Ms. Fleming’s house on December 1.
Amber Abrahams testified that she was on probation for shoplifting and that she had
not been promised anything in exchange for her testimony. She said she met the victim
through “Aaron,” whose last name she did not know. She thought she and the victim met
around July 4, 2016, and said they dated. She said that the victim lived in Murfreesboro at
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the time and that she stayed at his house “a little” but did not live there. She said he had a
pit bull named Justice. She said the victim sold his house in Murfreesboro. She knew the
victim used Pinnacle Bank. She said he had a large safe in his house in Murfreesboro and
later in his Bedford County house. She said he kept pain medication and firearms inside
the safe and thought he kept documents in it, as well. She thought the safe contained at
least one shotgun. She said she did not know how to open the safe.
Ms. Abrahams testified that she stayed frequently at the victim’s Bedford County
house. She acknowledged that she and the victim used crack cocaine together. She said
the victim had security cameras on his front porch that displayed activity on the porch on
a laptop or computer screen. She did not know if the cameras were visible if a person
approached the porch from outside. She did not know about any cameras inside the house.
Ms. Abrahams testified that she met the Defendant after the victim sold his house.
She said the victim rented a hotel room in Murfreesboro “to have a good time” using drugs
and invited “some friends who had some friends.” She said she had a “really bad feeling”
about the people. She said she met the Defendant this night. She thought she also met
Myron Fleming this night. She said she never spent time with the Defendant or Myron
Fleming unless the victim was present and said the Defendant and Myron Fleming were
not her friends. She said the Defendant was going to tattoo an image of the victim’s
deceased twins’ names on the victim’s chest. She said that she and the victim spent time
with Mr. Rowe and Ms. Smith but that Ms. Abrahams refused to be around his other friends
after meeting them at the Murfreesboro hotel.
Ms. Abrahams testified that the victim’s best friend, other than his dog, was Mr.
Rowe. She said she never spent time with Mr. Rowe and Ms. Smith unless the victim was
also present.
Ms. Abrahams testified that she was in jail on the night of the victim’s death. She
thought she was in jail for a drug-related matter. She said she had been in jail for “a couple
of nights” and that she ultimately served seven months. She said she learned of the victim’s
death when TBI officers took her from her cell and talked to her in an investigator’s office.
Ms. Abrahams testified that she and the victim “weren’t committed” but were
dating. She said she had recently “been with” Quincy Tizdale but that Mr. Tizdale had not
been her boyfriend. She agreed Mr. Tizdale and the victim did not like each other.
Samantha McBride testified that she met the Defendant through Myron Fleming,
who she “kinda” dated after meeting him through social media in Summer 2016. She said
she and Myron Fleming used interavenous methamphetamine and heroin together. She
said Myron Fleming and the Defendant lived at their aunt’s house in Murfreesboro. She
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said that Myron Fleming had a car but that the Defendant did not. She identified a
previously admitted photograph exhibit as depicting Myron Fleming’s car.
Ms. McBride testified that she met the Defendant shortly after the Defendant was
released from jail. She said they met at a hotel in Murfreesboro and that Autumn Slade,
who was Myron Fleming’s girlfriend, was also present. She said she also met the victim,
who was the Defendant’s boss. She said the group used drugs together that night.
Ms. McBride testified that she, Myron Fleming, Autumn Slade, and the Defendant
went to the victim’s house one night to “hang out.” She said that there was discussion of
a tattoo but that she did not “think it ever happened.” She said that, at some point, Myron
Fleming and Ms. Slade left. Ms. McBride said that after they left, the victim thought she
stole $50 from him and that she, the victim, and the Defendant argued. She said that she
did not take the $50 and that she defended herself against the allegation. She said that she
went outside onto the porch and that she noticed a camera on the porch. She said that while
she sat on the porch smoking, the victim and the Defendant argued about the $50 and the
victim’s debit card, which was also missing. She said she had not taken the debit card.
She said that Myron Fleming and Ms. Slade returned to pick her up and that Myron Fleming
intervened when he saw the Defendant and the victim arguing. She said that by this point,
the Defendant had pulled a shotgun on the victim. She said the Defendant pointed the
shotgun at the victim’s head and demanded the combination to the safe and the PIN for the
debit card. She said that she had gone inside to retrieve her belongings and that she saw
the Defendant pointing the shotgun at the victim. She agreed that the victim refused to
open the safe. She said the argument ended when Myron Fleming entered the house, pulled
the Defendant away, and told the Defendant to get in the car. She agreed that the victim
tried to leave, that Myron Fleming’s car was “blocking him in,” and that he returned to the
house. She said that when she, the Defendant, Myron Fleming, and Ms. Slade were in the
car, the Defendant was mad at Myron Fleming and stated “[t]hat he didn’t have his back.”
Ms. McBride said that when they left, the victim also left. Ms. McBride said she, the
Defendant, Myron Fleming, and Ms. Slade went to Ms. Fleming’s house. Ms. McBride
said Ms. Slade and Myron Fleming left Ms. Fleming’s house to buy drugs with the “50 that
went missing . . . plus a little more.”
Ms. McBride testified that Myron Fleming and the Defendant liked to wear Nike
Jordan shoes.
Jereisse Fleming testified that she had a four-camera security system in her home in
Murfreesboro in 2016. She said one faced the front door and one was in the garage. She
said she had stored several rolls of duct tape in different colors in her garage, and she
identified a photograph of the rolls of duct tape that had been in her garage. She said law
enforcement came to her house on December 5, 2016, and took all of her duct tape rolls.
-29-
When asked about a roll of “neon green duct tape,” she said she thought that her tape had
been darker green but that the roll might be hers.
Ms. Fleming testified that the Defendant and Myron Fleming were her nephews.
She agreed they lived with her in December 2016. She said Myron Fleming lived with her
off and on for several years. She said the Defendant moved into her house in June or July
2016. She said that both nephews had come from Georgia and that both had nowhere else
to go. She agreed she tried to help them “get on their feet and get established.” She said
that they were supposed to pay rent after a couple of months but that they did not. She
agreed that the Defendant had worked odd jobs for money but said Myron Fleming had not
been working. She agreed that she expected them to abide by her household rules, which
included their not having company when she was out of the house and not having overnight
guests. She agreed that in November 2016, she had given them two months, until January
2017, to move out.
Ms. Fleming testified that she met the victim at her house. She said the victim was
outside with her nephews and their friends. She had understood that the Defendant was
going to tattoo the victim. She said that the victim referred to the Defendant as “[h]is artist”
and that the Defendant referred to the victim as “[h]is boss.”
Ms. Fleming testified that earlier in the week the victim was killed, she came home
from work and saw a “black thing” in a corner by the back door, which she said was “[l]ike
a jacket” and which she was “pretty sure” had not been there when she left for work earlier.
She said a shotgun lay underneath the jacket. She said the Defendant sat on the back porch
talking on the telephone. She said she asked the Defendant about the shotgun and that the
Defendant claimed Myron Fleming “said that it was another friend’s or that another friend
brought it and it was just being stored at my house because he wasn’t able to get to . . . the
end person.” She said she had seen people she did not recognize in her house and that she
questioned the Defendant and Myron Fleming. She said they stated the gun belonged to a
friend of Myron Fleming. She acknowledged that her memory had been better when she
gave a statement to law enforcement on December 5, 2016, in which she said the shotgun
was “too short for a shotgun” and that it had black tape on it, but she did not recall at the
time of the trial that the shotgun had black tape.
Ms. Fleming testified that while she was at work on December 1, 2016, she saw
activity on her home security system involving people at her house. She said she sent
Myron Fleming a text message to inquire “what it was about” and that he said a woman
had to use the restroom and that the victim had picked up a ladder.
Ms. Fleming testified that at some point during the week of the victim’s death, the
Defendant told her that the victim had been upset about missing money and had blamed
Ms. McBride. Ms. Fleming said that the Defendant was upset and could not believe the
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victim did not trust him and that the Defendant repaid the victim with money the Defendant
earned working for the victim. When asked if the Defendant “kept dwelling on it,” she
said, “A little bit for that day, yes.”
Ms. Fleming testified that earlier in the week of the victim’s death, she had talked
to Myron Fleming about Ms. Slade’s staying at Ms. Fleming’s house and told him that Ms.
Slade needed to find another place to stay. She said Myron Fleming was upset, asked Ms.
Fleming to give Ms. Slade another chance, and stated that Ms. Slade had nowhere else to
go.
Ms. Fleming testified that she worked on December 2, 2016. She said she saw via
her security system that the Defendant left her house around 3:34 or 3:35 p.m. She said
she did not see anyone else leave with the Defendant. She said that she arrived home
around 6:56 p.m. and that no one was home when she arrived. She said Myron Fleming,
Ms. Slade, and the Defendant arrived around 11:30 p.m. Ms. Fleming said her nephews
and Ms. Slade made noise and were packing their belongings. She agreed that the
Defendant was in a good mood and said he was “ready for a change and tired of the same
old stuff.” She said that she asked where they were going and that they said they were
“going away for the weekend” to a destination north of Knoxville. She agreed that they
packed belongings that might indicate a more lengthy trip. She said Myron Fleming moved
his motorcycle from her garage onto her driveway and stated that his friend “Mike” was
coming to get it to take it north of Knoxville.
Ms. Fleming testified that when she went out her garage door to walk her dog the
next morning around 8:30 or 9:00 a.m., the Defendant, Myron Fleming, the motorcycle,
and the green Honda were there. She said she was surprised because she thought her
nephews had already left. She said she asked Myron Fleming to move the motorcycle to
the garage because its being in the driveway was against her homeowners’ association
rules. She said that when she returned from her walk, the Honda, the Defendant, and Myron
Fleming were gone.
Ms. Fleming testified that Myron Fleming notified her he had a new cell phone
number. She thought this occurred on December 6, 2016. She said she did not see or hear
from the Defendant and Myron Fleming until they were discovered in Florida.
Ms. Fleming testified that after the Defendant and Myron Fleming left her house,
she found messages from the Defendant’s Facebook Messenger account on her iPad. She
agreed he had a December 3, 2016 message stating he had $2500, a car, and some guns.
She agreed she allowed law enforcement to conduct forensic analysis of her iPad and two
iPhones.
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Jason Kennedy, a former Bedford County Sheriff’s lieutenant, testified that he
responded to the scene on December 2 or 3, 2016, where he assisted Agent Burkhart with
the investigation. Mr. Kennedy said he collected evidence from Ms. Fleming’s house on
December 5, 2016. He said the evidence included a couple of rolls of duct tape, including
one that was “fluorescent green” that matched tape at the crime scene. He identified a roll
of duct tape as one that had been found in Ms. Fleming’s garage, and the tape was received
as an exhibit.
TBI Forensic Scientist Laura Boos, Ph.D., an expert in forensic biology, testified
that she responded to the scene on December 3, 2016, as part of the Violent Crime
Response Team. She agreed that she collected samples from reddish brown stains at the
scene and that she analyzed evidence collected at the scene, from the victim’s truck, from
a green car searched in Florida, and from the Defendant’s Air Jordan shoes.
Dr. Boos testified that she did not identify the Defendant’s blood on any of the
evidence containing blood that she examined. Regarding the evidence from the victim’s
house, she said that five stains from the porch, four stains on the siding, eight samples from
a trail of reddish brown stains in the yard and gravel outside the house, the sheet from the
front porch, and the camouflage jacket from the kitchen matched the victim’s DNA profile.
Two knives from the kitchen counter tested negative for the presence of blood. The knife
with the broken tip tested positive for blood, but further testing proved inconclusive. Two
cigarette lighters from the scene tested positive for blood, with one containing the victim’s
DNA profile and the other having an insufficient sample size for further testing. The gas
can from the bedroom had blood on it that contained the profiles of two individuals, at least
one of whom was male. A cigarette butt from the living room contained a DNA mixture
from at least two individuals, with one being the victim’s profile and the results being
inconclusive for the other contributor. Other results from samples collected at the victim’s
house were inconclusive.
Dr. Boos testified that the victim’s DNA profile was present in samples collected
from the exterior of the victim’s truck. Regarding results from samples collected inside
the truck, Dr. Boos said the victim’s DNA was present in two of the samples. She said that
additional DNA profiles were present in some of the samples but that the results were
inconclusive.
Regarding her examination of evidence from the green Honda recovered in Florida,
Dr. Boos testified that “some” of the seven samples were positive for human blood and
contained Myron Fleming’s DNA profile. She said two samples from the front interior
passenger door contained Ms. Slade’s DNA profile. Three prescription slips for diazepam,
Percocet, and Ambien were recovered from the Honda. Dr. Boos said that samples from
all three prescription slips contained the victim’s profile. She said that the diazepam
prescription slip also contained Myron Fleming’s DNA profile and that the Percocet
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prescription slip contained a DNA mixture from another person in addition to the victim.
Dr. Boos said that a sample from a cigarette found in the green Honda contained a DNA
mixture from two people, one of whom was the Defendant, and that the result for the other
profile was inconclusive.
Regarding her analysis of the Defendant’s Air Jordan shoes, Dr. Boos testified that
samples from both shoes contained human blood and that she was able to identify the
Defendant’s and Ms. Slade’s DNA, but that additional results were inconclusive.
TBI Special Agent Forensic Scientist Supervisor Miranda Gaddes, an expert in
microanalysis, testified that she responded to the scene on December 3, 2016, as part of the
Violent Crime Response Team. She said that Agent Burkhart directed her to the shoe
impressions in what appeared to be blood on the porch. She agreed that Dr. Boos’ testing
showed that the substance was blood. She said she photographed the shoe impressions and
applied a chemical that reacted with blood to enhance detail of minute amounts of blood
that otherwise would not be visible to the eye. She identified photographs of the shoe
prints, which were received as exhibits. She said she recognized the prints as having been
made by two different sizes of Nike Jordan shoes. She said she obtained fourteen shoe
impressions from the porch, with ten impressions being a smaller size and four impressions
being a larger size. She agreed that many different types of Nike Jordans existed and that
the styles changed frequently.
Agent Gaddes testified that she examined a pair of size 10 Nike Jordan 1 Flight 4
shoes, which had previously been identified as belonging to the Defendant. Printouts of
impressions Agent Gaddes made from the shoes were received as exhibits. She said that
the model of shoes contained a distinctive star pattern that was hand stamped in the
manufacturing process and resulted in a variation in the location of the stars on the shoes.
Agent Gaddes testified that of the ten smaller shoe impressions from the porch,
seven were consistent with the Defendant’s left shoe in size, shape, tread design, and wear.
She said that one impression from the porch was consistent with the Defendant’s right shoe
in size, shape, tread design, and tread wear and that two impressions were “limited” in that
they were consistent in size and tread design but did not provide enough information to
determine if they were from the left or right shoe. She said that one impression from the
porch contained sufficient “stippling” from the star pattern for comparison and that it
matched the Defendant’s left shoe. She said the impressions on the porch and the
Defendant’s shoes appeared to have “been made from the same mold.” She said the model
of Nike Air Jordan 1 Flight 4 shoes owned by the Defendant was manufactured from
December 9, 2015 until March 1, 2016. She did not know how many pairs were
manufactured or how many shoes were made from the mold used for the Defendant’s
shoes. She acknowledged that size 10 was a common size. She agreed that she had written
in her report, “[T]he lack of individual characteristics [of the Defendant’s shoes] precludes
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a more conclusive comparison.” A document representing a “shoe funnel,” which depicted
the levels of uniqueness of shoes, was received as an exhibit.
Agent Gaddes testified that a photograph exhibit, which had been previously
identified as coming from the Defendant’s Facebook account and depicting a Jordan shoe,
did not appear to be the same as the Defendant’s shoes that she examined.
Agent Gaddes testified that she collected evidence from the Chevrolet Silverado
after it was brought to the TBI Laboratory. She said that she compared the zip ties from
the victim’s body and the ones from the truck and that she concluded the ones from the
victim’s body were not from the package in the truck.
Agent Gaddes testified that she examined duct tape from the victim’s wrists and
compared it with duct tape which was previously identified as having been collected from
Ms. Fleming’s garage. Agent Gaddes said the physical characteristics of the two samples
were the same in that they were both 1-7/8" wide and had the same construction through a
lamination process. She said the backing, adhesive, and number of warp and weft fibers
were consistent. She concluded that the two samples came from the same manufacturer
and noted that they were the same color. She said she could not attempt to match the tape
from the victim’s body to the roll from Ms. Fleming’s garage due to the damaged condition
of the tape recovered from the victim’s body.
TBI Agent Randall Nelson, an expert in microanalysis, testified that he analyzed
liquid from inside the gas can found at the scene and determined that it was gasoline. He
said he analyzed a camouflage coat and the victim’s jeans and determined that they
contained evaporated gasoline. He said that he examined burned flooring materials
collected from the back bedroom and that they did not contain any ignitable liquid residue,
which he said did not eliminate the possibility that an ignitable liquid had been used
because the liquid could have been completely consumed by the fire or could have been
washed away during the fire extinguishing process.
TBI Special Agent Forensic Scientist Rachel Strandquist, an expert in forensic
chemistry, testified that she responded to the scene as part of the Violent Crime Response
Team and later conducted laboratory testing of a syringe that was submitted as evidence.
She said the syringe contained cocaine residue.
Miguel Laboy, M.D., an expert in forensic pathology, testified that he performed
the victim’s autopsy. Dr. Laboy identified his autopsy report, which was received as an
exhibit. Dr. Laboy said that the victim’s clothing was partially burned, that the victim’s
hands were bound with partially burned green duct tape at the wrists, and that the legs were
bound with green duct tape and a zip tie. Dr. Laboy said the victim had a “contact range”
gunshot entrance wound to the back of the head, a gunshot exit wound to the area above
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the right eyebrow, and a sharp force injury or cut to the neck. Dr. Laboy said that no bullet
or bullet fragments were recovered during the autopsy and that he was unable to determine
the caliber of bullet or type of weapon used. Dr. Laboy said the victim had soot on the
back of his head, indicating that the gunshot had been fired “tight against or loose contact,
close to the skin.” Dr. Laboy said the neck wound was a stab wound with a one-inch
incision that was two inches deep. Dr. Laboy said a person would still be able to move and
talk after sustaining a neck wound of this nature. Dr. Laboy said the victim had a scrape
and cut on the back of his left hand and two stab wounds to his lower extremities. Dr.
Laboy said a stab wound to the front left thigh was 2-3/8" deep and that a stab wound to
the right thigh was 1-7/8" deep. Dr. Laboy said the victim did not have a large amount of
black deposit in his lungs, indicating that he had not been breathing during the fire.
Dr. Laboy testified that the victim’s toxicology indicated the presence of ethanol,
acetaminophen, nordiazepam, diazepam, cocaine metabolites, oxycodone, and
noroxycodone. Dr. Laboy said the victim’s blood contained 8% carbon monoxide. Dr.
Laboy said the victim’s blood-alcohol content was 0.07.
Dr. Laboy testified that a person who sustained a gunshot wound of the nature
sustained by the victim might “last less than an hour or a little bit more without treatment”
and that the injury was “lethal.” Dr. Laboy said that a person could recover from a neck
injury such as the one suffered by the victim, provided the person received medical
treatment.
Dr. Laboy testified that, in his opinion, the victim’s cause of death was gunshot
wound to the head and sharp force injuries and that the manner of death was homicide. Dr.
Laboy said the circumstance of death was assault by another or others.
The Defendant elected not to present evidence. After receiving the proof, the jury
found the Defendant guilty of first degree premeditated murder, first degree felony murder;
arson, and theft of property valued at $1000 or more but less than $10,000. The trial court
merged the first degree murder convictions and imposed a life sentence. At a sentencing
hearing, the court sentenced the Defendant to fifteen years for arson and to twelve years
for theft, and the court imposed the arson and theft sentences concurrent to each other but
consecutive to the life sentence, for an effective sentence of life plus fifteen years. This
appeal followed.
I
Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support his convictions.
He argues that his identity as the perpetrator of the offenses was not sufficiently established
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by the State’s proof. Although the Defendant argues generally that the State failed to prove
the elements of the offenses, he had not challenged that the crimes themselves occurred,
and he has made no specific arguments as to any individual elements of the offenses other
than to his identity as a perpetrator. The State counters that the evidence is sufficient to
establish beyond a reasonable doubt that the Defendant committed the offenses. We agree
with the State.
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)).
“Identity of the perpetrator is an essential element of any crime.” State v. Rice, 184
S.W.3d 646, 662 (Tenn. 2006). Circumstantial evidence alone may be sufficient to
establish the perpetrator’s identity. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The
identity of the perpetrator is a question of fact for the jury to determine. State v. Thomas,
158 S.W.3d 361, 388 (Tenn. 2005). “The jury decides the weight to be given to
circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt[.]’” Rice, 184 S.W.3d at 662
(quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)).
First degree murder is the unlawful, intentional, and premeditated killing of another.
T.C.A. §§ 39-13-201 (2018), 39-13-202(a)(1) (2018). In the context of first degree murder,
intent is shown if the defendant has the conscious objective or desire to cause the victim’s
death. State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002); T.C.A. § 39-11-
106(a)(18) (2019) (defining intentional as the “conscious objective or desire to engage in
the conduct or cause the result”). A premeditated act is one which is
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done after the exercise of reflection and judgment. “Premeditation” means
that the intent to kill must have been formed prior to the act itself. It is not
necessary that the purpose to kill preexist in the mind of the accused for any
definite period of time. The mental state of the accused at the time the
accused allegedly decided to kill must be carefully considered in order to
determine whether the accused was sufficiently free from excitement and
passion as to be capable of premeditation.
Id. § 39-13-202(d). The question of whether a defendant acted with premeditation is a
question of fact for the jury to be determined from all of the circumstances surrounding the
killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of premeditation
may be shown by direct or circumstantial evidence. State v. Brown, 836 S.W.2d 530, 541
(Tenn. 1992).
First degree murder is also a “killing of another committed in the perpetration of or
attempt to perpetrate arson [or] theft[.]” T.C.A. § 39-13-202(a)(2).
Relative to the offense of arson, “A person commits an offense who knowingly
damages any structure by means of a fire or explosion . . . [w]ithout the consent of all
persons who have a possessory, proprietary or security interest therein[.]” Id. § 39-14-
301(a)(1) (2018) (subsequently amended).
“A person commits theft of property if, with intent to deprive the owner of property,
the person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Id. § 39-14-103(a) (2018).
“Criminal responsibility, while not a separate crime, is an alternative theory under
which the State may establish guilt based upon the conduct of another.” Dorantes, 331
S.W.3d at 386 (quoting State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)).
A person is criminally responsible for an offense committed by the conduct
of another, if:
. . .
(2) Acting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offense, the person solicits, directs,
aids, or attempts to aid another person to commit the offense[.]
T.C.A. § 39-11-402 (2018). For a defendant to be convicted of a crime under the theory
of criminal responsibility, the “evidence must establish that the defendant in some way
knowingly and voluntarily shared in the criminal intent of the crime and promoted its
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commission.” Dorantes, 331 S.W.3d at 386; see State v. Maxey, 898 S.W.2d 756, 757
(Tenn. Crim. App. 1994).
The Defendant argues that none of the blood or latent print evidence placed him at
the victim’s house or where the victim’s truck was recovered. The Defendant argues, as
well, that although the evidence shows that he used the victim’s ATM card shortly after
the crime, the State did not establish that he participated in the crimes and that the evidence
could support a conclusion that Myron Fleming committed the offenses and later took the
Defendant to withdraw money from the victim’s account.
As we have stated, a crime may be established solely by circumstantial evidence.
Reid, 91 S.W.3d at 277. Viewed in the light most favorable to the State, the evidence
shows that earlier in the week of the crimes, the Defendant held the victim at gunpoint in
an attempt to force the victim to reveal the combination to the safe and the PIN for the
victim’s debit card. Shortly before his death, the victim went to his bank and transferred
money to another account because he thought his account information had been
compromised. The victim withdrew $2500 from his bank on the date of his death. The
safe inside the victim’s house was found unlocked, and its contents were in disarray. The
victim was known to keep guns and medication inside the safe. The contents of the victim’s
house were in disarray. Bright green duct tape of the same type found at Ms. Fleming’s
house, where the Defendant lived, was used on the victim’s bindings. The Defendant
changed clothes four times during an approximate six-hour period surrounding the victim’s
death. The victim’s dog was found with the victim’s truck, which had flat tires. Security
footage showed the Defendant leaving Ms. Fleming’s house in Myron Fleming’s green
Honda around 3:35 p.m. on December 2, and security footage at TJ Maxx and Target stores
showed the Defendant with Myron Fleming shortly thereafter. Mr. Cox’s daughter saw
two men in a green Honda parked near the victim’s house shortly before she heard a
gunshot and before the fire erupted at the victim’s house. Ms. Fleming testified that the
Defendant did not return to her house until around 11:30 p.m. that night, which was after
security footage showed the Defendant attempting to make ATM withdrawals with the
victim’s debit card. The Defendant, Myron Fleming, and Ms. Slade left town within hours
of the crimes, fleeing to Florida, where they were eventually apprehended and were found
in possession of the victim’s prescription slips with the victim’s blood on them. The
Defendant boasted in a Facebook message on the day after the crimes, “So I got $2,500, a
legit car, my brother, a couple of firearms, and a few bags clothes [sic]. I just crossed the
GA line. We are on 75 South, I’m ready to get on with my life.” When the Defendant was
arrested in Florida, he had healing injuries on his hands, which would support an inference
that he was involved in the crimes. In addition, shoe prints which matched the Defendant’s
size 10 Nike Air Jordan 1 Flight 4 shoes were found in the victim’s blood on the victim’s
porch.
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From the evidence, a rational jury could conclude that the Defendant and Myron
Fleming waited outside the victim’s house, eventually entered the house, shot the victim in
the back of the head, stabbed the victim in the neck and lower extremities, and bound his
hands and feet with duct tape and zip ties. The Defendant and Myron Fleming stole the
$2500 the victim had withdrawn from the bank earlier that day, the victim’s prescription
slips, and the victim’s guns. The Defendant and Myron Fleming doused the victim’s house
with gasoline and set fire to it in an attempt to destroy evidence of their crimes. The
Defendant and Myron Fleming stole the victim’s truck and abandoned it in another
location, which a rational jury could conclude was done without the victim’s consent.
Upon review, we conclude that the evidence of the Defendant’s identity as a
perpetrator of the crimes, whether by direct conduct or via criminal responsibility for
Myron Fleming’s conduct, is sufficient to support the convictions for first degree murder,
arson, and theft. The Defendant is not entitled to relief on this basis.
II
Sentencing
The Defendant contends that the record does not support the trial court’s imposition
of partial consecutive sentencing. The State counters that the Defendant has not shown an
abuse of discretion by the trial court. We agree with the State.
This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727
S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987));
see T.C.A. § 40-35-102 (2019).
Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as
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there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.
The abuse of discretion with a presumption of reasonableness standard also applies
to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859 (Tenn.
2013). A trial court has broad discretion in determining whether to impose consecutive
service. Id. A trial court may impose consecutive sentencing if it finds by a preponderance
of the evidence that one criterion is satisfied in Tennessee Code Annotated section 40-35-
115(b)(1)-(7) (2019). In determining whether to impose consecutive sentences, though, a
trial court must ensure the sentence is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” T.C.A. § 40-35-103(2), (4) (2014) (subsequently amended); see
State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995).
At the sentencing hearing, the presentence report was received as an exhibit and
reflected the following: The twenty-nine-year-old Defendant had prior convictions for two
counts of “R.I.C.O. offenses,” tampering with evidence, theft of property, and felony
marijuana possession. He had juvenile adjudications for two counts of marijuana
possession, driving under the influence, and five counts of automobile burglary. He had
violated the terms of release on two occasions and had been ordered to serve his sentences
for those cases. Detailed biographical information about the Defendant was limited
because he had not completed the personal questionnaire provided by the presentence
investigation officer. The Strong-R Assessment “result[ed] in a score of High for
Violence.” The Strong-R Assessment noted that the Defendant had not completed high
school, indicated he might have a mental health issue, acted impulsively, viewed crime as
“useful,” had been motivated in criminal activity by “excitement, amusement, or fun,” has
had a drug problem during his lifetime, and did not have a history of steady employment.
A victim impact statement completed by Ms. Vail-Allman and members of the
victim’s family were received as exhibits.
Certified copies of the Defendant’s prior convictions from Cobb County, Georgia,
and a probation revocation order were received as exhibits. Certified copies of the
Defendant’s prior Rutherford County, Tennessee, convictions and a probation violation
report were received as an exhibit.
Jeriesse Fleming testified that the Defendant was a “sweet kid” who had a “good
upbringing.” She said he had a “heart of gold” and wanted to change his ways after being
caught up in a lifestyle to which he was not accustomed. She said the Defendant had tried
to change his ways when he had lived with her and that the Defendant’s brother and others
had been bad influences. Ms. Fleming asked the judge to extend mercy to the Defendant.
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Ms. Fleming acknowledged that she had asked the Defendant to move out of her
house before the crimes and that he had not been following her household rules.
The Defendant provided the following allocution: He thought about the victim, with
whom he had had a good relationship. He prayed nightly for the victim and the victim’s
family. He did not kill the victim and was convicted based upon a criminal responsibility
theory. The victim’s killer was “still . . . out on the streets.” The case was not over, and
the Defendant “will be back.”
The trial court found that the Defendant had a previous history of criminal
convictions or behavior in addition to those necessary to establish he was a Range III
offender. See T.C.A. § 40-35-114(1) (2014) (subsequently amended). The court also
found that before trial or sentencing, the Defendant failed to comply with the conditions of
release in the community. See id. at (8). The court found, as well, that the Defendant was
on release from Georgia convictions at the time he committed the present offenses. See id.
at (13). The court found, relative to the theft conviction, that the Defendant’s conduct
neither caused nor threatened serious bodily injury. See id. § 40-35-113(1) (2019). Upon
consideration of the evidence and the statutory factors, the court sentenced the Defendant
to maximum sentences for Range III of fifteen years for arson and twelve years for theft.
The Defendant has not challenged the length of the sentences imposed for arson and
theft. Our review leads us to conclude that the trial court did not abuse its discretion in
imposing the fifteen-year sentence for arson. As a matter of plain error, however, we note
an impropriety in the Defendant’s theft sentence. As we have stated, the offenses occurred
on December 2, 2016. At that time, the theft statute provided that theft of $1000 or more
but less than $10,000 was a Class D felony. See id. § 39-14-105(a)(3) (2014) (subsequently
amended). Effective January 1, 2017, theft of $1000 or less became a Class A
misdemeanor; theft of more than $1000 but less than $2500 became a Class E felony; and
theft of $2500 or more but less than $10,000 became a Class D felony. See id. (a) (1)-(3)
(2018). The indictment, which was returned on August 21, 2017, charged the Defendant
with theft of property valued at $2500 or more but less than $10,000. Later, the State
moved to amend the indictment to allege the amount of the theft was “more than one
thousand dollars ($1,000) but less than ten thousand ($10,000) dollars.” The court filed an
order permitting the amendment on November 19, 2018. The jury’s verdict form reflects
that it found the Defendant guilty of theft and that it specified the value of the property
stolen to be “at least $1,000 in value but less than $10,000.” In State v. Menke, 590 S.W.3d
455, 470 (Tenn. 2019), our supreme court held that Tennessee Code Annotated section 39-
11-112 (Criminal Savings Statute) applied to the amendments to the grading of theft, even
where the offense occurred before the effective date of the amendments but the defendant
was sentenced after the effective date. As applied to the facts of the present case, Menke
compels us to conclude that the trial court abused its discretion in sentencing the Defendant
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for Class D felony theft. The jury found the Defendant guilty of theft of property valued
at $1000 or more but less than $10,000. Pursuant to Code section 39-14-105(a)(1) as it
existed at the time of sentencing, the offense was a Class A misdemeanor. See Menke, 590
S.W.3d at 465-66. The sentence for a Class A misdemeanor is eleven months, twenty-nine
days. T.C.A. § 40-35-111(e)(1) (2019). We modify the Defendant’s theft sentence to
eleven months, twenty-nine days, to be served at 75%.
Regarding consecutive sentencing, the court found that the Defendant had an
extensive record of criminal activity. See id. § 40-35-115(2). The court found that this
factor was sufficient to justify consecutive sentencing and imposed the arson and theft
convictions concurrent with each other but consecutive to the Defendant’s life sentence,
for an effective sentence of life plus fifteen years.
On appeal, the Defendant argues that consecutive sentencing is not supported by the
facts of the case and that the sentence he received furthers prison overcrowding and taxes
the resources of the Department of Correction. The Defendant does not contend that the
trial court erred in its application of enhancement and mitigating factors or in its
classification of him as a Range III offender. Likewise, he does not argue that the trial
court erred in finding that he was an offender with an extensive record of criminal activity
pursuant to Code section 40-35-115(2).
Upon review, we conclude that the Defendant has not shown that the trial court
abused its discretion in imposing partially consecutive sentences. The Defendant’s
criminal record is abysmal. The record supports the trial court’s determination that he was
an offender with an extensive record of criminal activity, which is an appropriate statutory
basis for consecutive sentencing. See id. The trial court determined, within its discretion,
that a sentence of life plus fifteen years was no greater than the Defendant deserved for the
offenses and was the least severe measure necessary. See id. § 40-35-103(2), (4); Desirey,
909 S.W.2d at 33. The Defendant is not entitled to relief on this basis.
Outcome: In consideration of the foregoing and the record as a whole, the first degree murder
and arson judgments of the trial court are affirmed. The theft conviction is affirmed, and
the sentence is modified to eleven months, twenty-nine days, to be served at 75%.
Plaintiff's Experts:
Defendant's Experts:
Comments: