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State v. Pearman

Court of Criminal Appeals of Tennessee, Nashville

May 11, 2017

STATE OF TENNESSEE
v.
JACOB PEARMAN

         Session: December 14, 2016

         Appeal from the Circuit Court for Rutherford County No. F-71592 David M. Bragg, Judge.

         The Defendant-Appellant, Jacob Pearman, was convicted as charged by a Rutherford County Circuit Court jury of first degree premeditated murder, aggravated assault, and child abuse, and he received an effective sentence of life imprisonment plus five years. See T.C.A. §§ 39-13-202(a)(1), -102(a)(1), -15-401(a). On appeal, Pearman argues: (1) the trial court erred in denying his motion for a change of venue; (2) the trial court abused its discretion in declining to strike a juror for cause; (3) the evidence is insufficient to show that he premeditated the victim's killing; (4) the trial court erred in admitting the victim's statements pursuant to the state of mind hearsay objection; (5) the State committed prosecutorial misconduct during its rebuttal closing argument; and (6) the trial court failed to properly exercise its role as the thirteenth juror.[1] We affirm the judgments of the trial court.

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

          Luke A. Evans and Heather G. Parker, Murfreesboro, Tennessee, for the Defendant-Appellant, Jacob Pearman.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Jennings H. Jones, District Attorney General; J. Paul Newman and Dana Minor, Assistant District Attorneys General; William C. Whitesell, Jr., Special Prosecutor, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         Trial. Carla Dillard, the victim, began dating Jacob Pearman, the Defendant-Appellant, in 2011. The victim had a son, M.T., [2] who was born in 2004 and lived with her. On November 18, 2012, Pearman and the victim married, and on February 14, 2013, less than three months later, the victim was found dead from manual strangulation and multiple blunt-force injuries. Pearman confessed to the killing the same day.

         Prior to the victim's murder, Pearman was charged with physically abusing his stepson, M.T. On December 13, 2012, Sharon Leavell, the site director for the YMCA afterschool program at Blackman Elementary School, found M.T. hiding in a corner when it was time for him to go home with Pearman. M.T. looked "scared[, ]" was "visibly shaky, nervous[, ]" and begged for Leavell not to send him home with Pearman.

         Following a telephone call from Leavell, officers from the Murfreesboro Police Department went to the victim's and Pearman's home on December 13, 2012 for a welfare check on M.T. based on suspected child abuse. The victim, M.T.'s mother, was the only person at home, and she looked shocked when the officers told her why they were there. She told the officers that M.T. was at the Murfreesboro Athletic Club (MAC) with Pearman, who worked as a personal trainer. The officers followed the victim to the MAC, and the victim brought M.T. outside. Sergeant Patrick Murphy, after obtaining permission from the victim, interviewed M.T. privately and checked to see if he had any injuries. M.T. had a scrape on his right knee that he said he had gotten on the playground, and Sergeant Murphy did not observe any injuries indicating abuse. Pearman was not interviewed by officers that day.

         On December 14, 2012, around 6:30 a.m., Dana Unklesbay, a special education teacher, was at a traffic light near Blackman Elementary when she saw a small boy, later determined to be M.T., barefoot and wearing pajamas, running down the sidewalk. At the time, the temperature outside was approximately twenty degrees. Unklesbay pulled up next to the boy and asked him where he was going, and the boy said he was running away. Unklesbay told him that she worked at his school and that he needed to get in her car, and she drove him to the school. On the way, the boy was "very nervous" and kept "frantically looking back." When Unklesbay asked the boy why he was looking behind him, the boy said "he was afraid that Jake was going to come get him." He also told her that Jake had kicked him and punished him. Unklesbay brought the boy into the school and informed the principal, who promptly called the police.

         At 6:45 a.m. on December 14, 2012, Officers Patrick Doughtie and Chris Wilkerson went to the home shared by the victim and Pearman to conduct a welfare check on M.T. The officers knew that the night before, another officer had responded to a call to the victim's and Pearman's home regarding a domestic dispute. The victim, who was upset, allowed Officers Doughtie and Wilkerson to enter her home and told them that her son was missing. The officers knew that M.T. was at the school, and they told the victim of his whereabouts. A few minutes after the officers entered the home, Pearman came into the room. Pearman, who was more muscular at that time than he was at the time of trial, did not make eye contact with the officers and appeared "nonchalant." Pearman never asked about M.T., denied the allegations of child abuse, and claimed that the domestic dispute the night before had been about homeschooling M.T. Pearman and the victim agreed to follow the officers to the school in their own car.

         Officer Christopher Williams was dispatched to Blackman Elementary School in regards to a "runaway juvenile." When he arrived, M.T. showed Officer Williams and the other officers his injuries, which included red marks on his rib cage that looked like a "footprint, " marks that looked like a "handprint" on his neck, a four to five inch scrape on his stomach, a mark on the side of his eye, and a knot on the back of his head. M.T. was "adamant about not returning home." M.T. later saw his mother, the victim, at the school. The victim looked "shocked" after she learned that M.T. said his injuries were caused by Pearman. When the victim asked M.T. if he was lying about Pearman hurting him, M.T. asserted that "[h]e was not lying."

         A short time later, Kevin Smith, a Child Protective Services (CPS) Investigator with the Department of Children's Services, and Detective Ava Radley, with the Murfreesboro Police Department, arrived at the school. Detective Radley was present when Smith interviewed M.T. about his injuries. Smith talked with the victim and M.T.'s biological father while at the school. He determined that the safest place for M.T. to live would be with his biological father, to which the victim agreed, and that the victim would have supervised visitation. He also determined that Pearman would have no contact with M.T., which was incorporated into a juvenile court order.

         Later that day on December 14, 2012, Pearman and the victim agreed to go the police department for a formal interview. Pearman, after being advised of his rights, gave a video-recorded statement, wherein he told Detective Radley that he and the victim were not feeling well that morning, so he went to get some Advil. When he opened the door to get the dog some water, he noticed that the garage door was open. He and the victim then realized that M.T. was missing from the home. Pearman told Detective Radley that he was the disciplinarian at home and that he spanked M.T. when he misbehaved.

         Detective Radley said that she allowed the victim to talk to Pearman alone in the interview room and that this conversation was also recorded. While in the room, Pearman told the victim he did not do anything to M.T. that morning. He claimed he had not seen M.T. since the night before and did not know how M.T.'s injuries could have occurred, although he noted that M.T. had been to wrestling practice on Monday, a few days earlier.

         At approximately 10:00 a.m. on December 14, 2012, M.T. was examined by Dr. Eric Bruno and a nurse at the Middle Tennessee Medical Center. M.T. told the nurse that he had gotten into a fight with his stepfather the previous night. He said that he had lied the previous day and that his stepfather had smacked him in the face. M.T. added that when he awoke that morning, his stepfather choked him, threw him down, kicked him in the side, and made him stare at a wall in the dark before choking him again. After these things happened, M.T. said he ran away from home. During the examination, Dr. Bruno observed an abrasion on the left corner of M.T.'s eye, bruising to the front part of his neck, bruising on the left chest wall, and a scratch and some bruising across his abdomen, which were consistent with M.T.'s description of his stepfather's conduct. Dr. Bruno acknowledged that M.T.'s injuries also could have been consistent with injuries from wrestling practice.

         M.T. testified when Pearman picked him up at school on December 13, 2012, he was "scared" because he thought he was going to get in trouble. The next morning, Pearman pulled him out of bed, kicked him in the ribs, and choked him. M.T. began "squealing" because he "couldn't breathe, " and Pearman told him to stop. M.T. said that he thought he was going to die while he was being choked. Pearman eventually stopped choking him and made him sit in the corner of the hallway in the dark. Shortly thereafter, Pearman began choking M.T. again, which made it difficult for M.T. to breathe. When Pearman went to his bedroom to get dressed, M.T. ran out of the home through the garage door, and a teacher picked him up near his school a few minutes later. M.T. said he ran away because he did not want Pearman to hurt him anymore. He acknowledged that around the time of this incident, he was on the wrestling team and sometimes got thrown to the ground during practice. However, M.T. asserted that his injuries were from Pearman and not from wrestling practice.

         Marilyn Meadow, who worked at the front desk of the MAC, stated that she regularly trained with Pearman. After Meadow heard about the child abuse allegations involving M.T., she confronted Pearman during one of their training sessions and asked if he was getting help. When she asked Pearman about how M.T. had received the marks on his neck and stomach, Pearman said M.T. had gotten them at wrestling practice.

         On January 15, 2013, at approximately 5:00 p.m., Officer Shawn Leiser and two other officers responded to a domestic disturbance call at the victim's and Pearman's residence. Pearman claimed that he and the victim were arguing because the victim suspected him of cheating on her, but the victim said that she was considering divorcing Pearman because of an incident that was keeping her away from her son. Both Pearman and the victim told Officer Leiser that they had not assaulted or threatened each other. Neither party mentioned that Pearman was depressed or suicidal, and Officer Leiser said Pearman did not appear suicidal during the time he was inside their home. After talking with the victim and Pearman, Officer Leiser concluded that "there was stress on the relationship."

         On February 1, 2013, the victim met with Mitch Ferguson, an attorney appointed to represent her in the dependency and neglect case regarding M.T. Ferguson informed her of the Domestic Violence Program because he believed she needed counseling and a safe place to stay. He also told her of the various ways to regain custody of M.T., which included divorcing Pearman to ensure M.T.'s safety. Ferguson explained that the farther she and M.T. could be from Pearman, the better off she would be. At this meeting, the victim said Pearman made her afraid for herself and M.T. but that she intended to protect M.T. first and then protect herself. She told Ferguson that "if that required testimony against her husband, then so be it."

         Kevin Smith, the CPS investigator, wrote a "Family Services Plan" specifying the steps the victim needed to take in order to regain custody of M.T. The victim was later ordered to attend parenting classes. A "Family Planning Meeting" for the victim was scheduled for February 14, 2013, the same date that a hearing on the child abuse charges against Pearman was to take place. On February 11, 2013, Smith called the victim to remind her about the February 14, 2013 meeting and her parenting classes. During this conversation, the victim said that Pearman wanted her to testify on his behalf at his court date but that "she had no desire of doing so." The victim also mentioned her intention to divorce Pearman so she could get her son back.

         On February 11, 2013, the victim told her friend, Ashley Fernandez, that she needed to get her husband out of the house and that she would be needing a roommate so she could stay in her home. The victim informed Fernandez that she had been scared of Pearman, that she was hoping marriage counseling would help, and that Pearman had exhibited anger problems in the past.

         As the court date on the child abuse charges approached, the victim told her mother and several friends that she was not going to testify on Pearman's behalf. She also told her mother, her brothers, and several friends that she was going to file for divorce and require Pearman to move out of the house so that she could regain custody of her son. She also told a friend that she was scared of Pearman.

         On February 13, 2013, at approximately 9:00 a.m., the victim met with John Green, a divorce attorney. The victim appeared "[r]eserved, quiet, clearly very distressed and troubled, " and they discussed potential grounds for divorce, including inappropriate marital conduct, which was formerly known as cruel and inhumane treatment, and irreconcilable differences. The victim later completed a divorce form for Green wherein she marked inappropriate marital conduct and adultery as potential grounds for divorce. She also told Green that she wanted a restraining order against Pearman. The victim told Green that she was not returning to the marital residence because she was afraid, and she promised him that she would go to her brother's home.

         Also on February 13, 2013, the victim informed her mother, her son's stepmother, and her friends, Joe Marlow and Megan Porter, that she had packed up Pearman's clothes and was going to require him to leave the home that night. The victim's brother, Chris Parnell, encouraged the victim to have someone with her to keep her safe. Parnell also offered for the victim and M.T. to live with him. The victim told her friends, Joe Marlow and Steve Matranga, that she had found Pearman's gun and intended to hide it.

         Terri Cook, one of Pearman's clients at the MAC, said that she saw Pearman at a training session on February 13, 2013, around 7:00 p.m. and that Pearman seemed normal. Patrick Wilson, one of Pearman's co-workers at the MAC, said that he worked out with Pearman before Pearman's boot camp class on the evening of February 13, 2013, and that Pearman's behavior "seemed to be normal."

         On February 14, 2013, at approximately 3:00 a.m., Officer Danny Howse, one of Pearman's friends, received a telephone call from Pearman's mother. She said that Pearman had called her and that she needed help. Officer Howse told Pearman's mother to call 9-1-1, and then he contacted his supervisor.

         At 3:21 a.m. on February 14, 2013, officers responded to the victim's and Pearman's home based on a report that a male subject inside was possibly suicidal. When the officers failed to get a response after knocking, ringing the door bell, and making several phone calls, they entered the home through an unlocked door in the garage. They found the deceased victim on the bed in the master bedroom. Her body was cold to the touch and rigid, and her face was bloody from injuries to her upper lip and nose. No one else was inside the home. The officers observed several trash bags full of clothes by the front door.

         Later that morning, Sergeant Christopher Ashley acquired Pearman's cell phone number and left him a voicemail message. Pearman returned his call a few hours later and told Sergeant Ashley of his whereabouts. Shortly thereafter, an officer with the Manchester Police Department located Pearman at a Kangaroo Express Market and took him into custody. At the time, Pearman looked "normal" and showed "no emotion." Detectives Ed Gorham and Paul Mongold drove to Manchester Police Department to pick up Pearman. On the ride back, Pearman appeared relaxed and calm. Pearman told Detective Gorham that he looked familiar, and Detective Gorham replied that it must be from the gym, and he and Pearman "had a little laugh" about that. Detective Gorham and Pearman also discussed weightlifting and Alabama football. Detective Mongold said that the only emotion he noticed from Pearman was when Pearman gave "a slight chuckle to a joke."

         At 8:45 a.m. on February 14, 2013, Detective Gorham and Detective James Abbott informed Pearman of his rights and conducted a formal interview. Pearman subsequently provided the following written statement:

We started off fighting at 4:00 am Wednesday morning cause [sic] I was in a bad mood [and] didn't feel like talking or training [the victim] at 7:00 a.m. Wednesday morning. I was upset over the court date that was set the next day, 2-14-13. We argued over text message throughout the day while we were both at work. When I came home around 8 pm-8:30 pm that evening I noticed the garage door was wide open & when I walked in the door I had clothes piled up by the door. I asked her what was going on & she told me that she thought it would help if I left but she wasn't sure. She then proceeded to tell me that she has talked to an attorney & the guy at DCS and they told her she would never get her son back as long as I lived in the house and the faster she got me out the better it would look on her and she didn't need to appear in court with me on Thursday 2/14/13 at 8:00 am because it would make her look like a horrible mother that she chose her husband over her son. We continued to talk/argue over that from that time on till [sic] around 1:00 am. During that time, we called my mother and spoke with her over speaker phone about the situation. Also talked/argued while I took a shower to the moment we laid [sic] in bed and continued to talk/argue about what to do. At that time of everything that happened I was suicidal never homicidal & I was set off by something she said and I hit her 2 or 3 times in the face then choked her. We made it down to the floor at the end of [the] struggle, I laid her in bed covered her and laid [sic] with her for a brief period. Then proceed[ed] to hold the dog for a bit and I went to the garage to get my gun to commit suicide and I noticed she had taken it. I searched the house for it & when I couldn't find it I called my parents & told them what I had done & I left the house & headed south until I called Chris Ashley & turned myself in.

         A video recording of Pearman's interview with Detectives Gorham and Abbott was played for the jury. During this interview, Pearman said that the victim told him he needed to be out of the house in order for her to get her son back. Pearman got upset because he had to be in court the next day, and the victim was supposed to appear with him. He reminded her that months ago he had told her that if she wanted him out of the house, she needed to let him know and not wait until the last minute. They continued to argue throughout the night, and Pearman went through the victim's phone and discovered that M.T. had been staying with the victim's parents. He believed that the victim's parents had been "coercing" M.T. to say things about him that were not true. Pearman and the victim argued back and forth over this issue until Pearman "just lost it."

         Pearman said he hit the victim in the face because he knew the victim was lying to him and did not care about him. He said, "[The victim's] like I don't need to be worried about you, I need to be worried about getting my son back and that's when I was hurt and I'm like, you know I didn't do anything to your son and I'm the one that's facing whatever consequence that could come from that because of something I didn't do. . . . " Pearman said he did not remember exactly what the victim said that caused him to lose control.

         After Pearman hit the victim once or twice with a closed fist, the victim begged him to stop and told him she would do whatever he wanted her to do, and Pearman began choking her with both hands. Pearman said that he choked her for "a long time" until she lost consciousness and that he did not check on her because he knew she was dead. Detective Abbott asked, "So you knew that you had choked her until she died?, " and Pearman responded, "Yes, sir." Once the victim stopped moving, Pearman checked her pulse and listened for her heartbeat.

         Afterward, Pearman wanted to kill himself but was unable to find his gun. He tried to kill himself with a trash bag but could not go through with it. He then called his father and told him what he had done.

         Officers took photographs of the scratches on Pearman's face, neck, arm, and torso. Pearman said he received these scratches when he was choking the victim and she tried to fight back. When Detective Abbott asked, "[D]id you maybe increase it or intensify the assault, the choking, as she was trying to fight back?, " Pearman replied, "Yes sir." At the conclusion of this interview, Pearman was arrested.

         Testing conducted by the Tennessee Bureau of Investigation established that fingernail clippings taken from the victim contained Pearman's DNA and that blood on Pearman's shorts belonged to the victim.

         Dr. Feng Li, the medical examiner who performed the victim's autopsy, opined that the victim's cause of death was a combination of multiple blunt force injuries and strangulation and that either the blunt force trauma to the victim's brain or the strangulation was sufficient to cause her death. He said that the victim's blunt force injuries caused bleeding under the skin of the head and bleeding inside her brain. He also noted that the victim had abrasions on her head and face and contusions on her chest and upper arm. He added that the combination of abrasions on the victim's neck, the petechial hemorrhages on the victim's eyelids and conjunctiva, and the hemorrhages in the victim's neck muscles indicated manual strangulation. Dr. Li explained that during manual strangulation, a person would most likely become unconscious within ten to thirty seconds, and that if the application of pressure continued, the person would die within a few minutes. He noted that the victim's blunt force injuries to her face were consistent with someone striking her multiple times with a closed fist and that the victim's injuries indicated that a struggle took place. Dr. Li stated that if a strangler stopped the pressure once a person lost consciousness, then that person could recover.

         Mike Jones, one of Pearman's friends, testified that he met Pearman at the MAC. He knew the victim and M.T. and occasionally socialized with them. After hearing about the child abuse charge, Jones visited Pearman and the victim, who both appeared "upset" and "[d]epressed." Jones next saw Pearman and the victim in January 2013 when he went to their house to watch a football game. During that visit, the victim and Pearman "seemed pretty jovial" and celebrated their team's win.

         Amy Stevens, the Defendant-Appellant's sister, testified that she saw her brother and the victim at her parent's home when they celebrated Christmas together in 2012. She said Pearman and the victim were "affectionate" with one another and were "[h]olding hands, laughing, cutting up." During that visit, the victim told Stevens that "[s]he was eager and excited to have a baby" with Pearman. At the time, Stevens did not know that Pearman had been charged with child abuse. She said Pearman did not appear suicidal or depressed during Christmas.

         Stevens next saw Pearman when she and her father visited his home on January 13, 2013, to help him move his belongings back to their parents' home. At that time, Stevens and the family were aware that Pearman had been charged with child abuse. Stevens said Pearman wanted the police present when he moved his things out "because he didn't want to be accused of doing something that he hadn't done." When Stevens and her father arrived at their house, Pearman and the victim came to the door "arm-inarm." They said everything was okay and then talked privately in their bedroom for forty-five minutes. Ultimately, Stevens and her father left without moving Pearman's belongings. When Stevens saw Pearman and the victim again for the Super Bowl game on February 3, 2013, they were "very affectionate" with one another. Stevens said that Pearman did not appear suicidal or depressed on that date.

         Donna Pearman, the Defendant-Appellant's mother, stated that her son and the victim were very loving and affectionate with one another prior to their wedding in November 2012. She said that her son told her about the child abuse charges around December 15, 2012, and that initially, her son could not explain how M.T. had gotten the injuries. However, "later on, " both her son and the victim talked about M.T. receiving these injuries from "wrestling" or "the dog." Following these charges, Mrs. Pearman[3]said her son seemed "[s]ad" and the victim was "bothered." When they celebrated Christmas 2012 together, her son and the victim were "loving, affectionate, teasing each other" and informed her that they wanted to have a baby together. When Mrs. Pearman saw her son and the victim on Super Bowl Sunday, February 3, 2013, she said they were "[v]ery playful and affectionate." When she went to dinner with them a few days later, her son and the victim behaved normally.

         Mrs. Pearman said that on February 13, 2013, at approximately 10:00 p.m., her son and the victim called her. During this call, her son was "[d]evastated" and "started crying, " but the victim was "calm." The victim told Mrs. Pearman that someone had told her she had to choose between M.T. and her husband. Her son said his clothes and shoes were by the front door, and she assumed he had packed his belongings and was planning to leave. During their telephone conversation, the victim never indicated that she wanted Pearman to leave the home and never said that she would not attend Pearman's hearing on the child abuse charges the following day. While they were talking, her son shared that the victim had found inappropriate pictures on his cell phone and that he had told the victim about being raped by a neighborhood child when he was five years old, which caused him to have trouble with sex. Mrs. Pearman acknowledged that the first time her son talked to her about this rape was after the victim found inappropriate photographs on his phone. She said her son and the victim "seemed okay" when she hung up the phone. Around midnight, Mrs. Pearman sent a text message to her son and the victim, asking if they were all right, and the victim texted her back, stating, "Yeah, going to bed." She said her son called her home early the next morning, and based on her husband's responses during that conversation, Mrs. Pearman called Officer Howse and then called 9-1-1.

         ANALYSIS

         I. Denial of Motion for Change of Venue.

         Pearman contends that the trial court erred in denying his motion for a change of venue. He asserts that the denial of his request for a change of venue, or alternatively an out of county jury, violated his right to a fair trial in light of the extensive and inflammatory publicity surrounding his case. Because Pearman has failed to establish that the jurors who heard his case were biased or prejudiced, he is not entitled to relief.

         Pearman applies many of the factors outlined in State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979), to support his argument that a change of venue, or at the very least an out of county jury, was necessary to protect his right to a fair trial. He asserts that the publicity surrounding his case began on the date of his arrest, continued through trial and sentencing, and concluded only at the end of all the post-trial motions. He claims that this publicity was inflammatory and pervasive, "with articles covering each and every court date and television cameras in trial each day of the trial, " and that it provided detailed coverage of some evidence that was not admitted at trial. Additionally, he maintains that this publicity, some of which evidenced a clear hostility toward him, saturated the area from which the venire was drawn and resulted in the court nearly depleting all potential jurors before jury selection was completed. Pearman emphasizes that he exhausted all of his peremptory challenges and that he unsuccessfully challenged several potential jurors for cause before he was convicted of the charged offenses.

         Tennessee Rule of Criminal Procedure 21(a) provides that a trial court may change venue upon a defendant's motion "when a fair trial is unlikely because of undue excitement against the defendant in the county where the offense was committed or for any other cause." A motion for a change of venue "shall be accompanied by affidavit(s) averring facts constituting the alleged undue excitement or other cause on which the motion is based" and "shall be made at the earliest date after which the cause for the change of venue is alleged to have arisen." Tenn. R. Crim. P. 21(b), (c).

         The decision to grant or deny a motion for a change of venue based on pretrial publicity rests within the sound discretion of the trial court, and this court will not reverse on appeal, unless the trial court abused its discretion. State v. Davidson, 121 S.W.3d 600, 611-12 (Tenn. 2003); State v. Crenshaw, 64 S.W.3d 374, 386 (Tenn. Crim. App. 2001) (citing State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993)). Extensive knowledge in the community of the crimes or of the alleged criminal is not sufficient, in and of itself, to render the trial unconstitutionally unfair. Crenshaw, 64 S.W.3d at 387. This court may not presume unfairness based solely on the amount of publicity unless the "'trial atmosphere [is] 'utterly corrupted by press coverage.'" Id. (quoting Dobbert v. Florida, 432 U.S. 282, 303 (1977). "Mere exposure to news accounts of the incident does not, standing alone, establish bias or prejudice." Id.; see State v. Mann, 959 S.W.2d 503, 531-32 (Tenn. 1997). The proper test is "whether the jurors who actually sat and rendered verdicts were prejudiced by the pretrial publicity." State v. Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989); see Davidson, 121 S.W.3d at 612.

         Factors that a trial court should consider in determining whether to grant a change of venue include:

the nature, extent, and timing of pretrial publicity; the nature of the publicity as fair or inflammatory; the particular content of the publicity; the degree to which the publicity complained of has permeated the area from which the venire is drawn; the degree to which the publicity circulated outside the area from which the venire is drawn; the time elapsed from the release of the publicity until the trial; the degree of care exercised in the selection of the jury; the ease or difficulty in selecting the jury; the venire persons' familiarity with the publicity and its effect, if any, upon them as shown through their answers on voir dire; the defendant's utilization of his peremptory challenges; the defendant's utilization of challenges for cause; the participation by police or by prosecution in the release of the publicity; the severity of the offense charged; the absence or presence of threats, demonstrations, or other hostility against the defendant; the size of the area from which the venire is drawn; affidavits, hearsay, or opinion testimony of witnesses; and the nature of the verdict returned by the trial jury.

State v. Sexton, 368 S.W.3d 371, 387 (Tenn. 2012) (citing State v. Rogers, 188 S.W.3d 593, 621-22 (appendix) (citing Hoover, 594 S.W.2d at 746)).

         Although the murder offense in this case was committed on February 14, 2013, Pearman's trial did not occur until nearly two years later in January 2015. Pearman first filed a motion for change of venue on February 11, 2014, alleging that "based on the nature of the allegations against him, the amount of pretrial publicity that has occurred relating to these charges in this county, as well as the specific and inflammatory nature of that publicity, it is impossible for him to receive a fair trial if it is decided by a jury in this venue." An affidavit was attached to this motion, wherein a licensed private investigator swore that she had investigated the media coverage of Pearman's case and found forty articles or stories related to Pearman's case, which were made exhibits. Although the affidavit referenced forty exhibits, and identified and summarized the content of most of these exhibits, only fourteen of the forty exhibits[4] were included in the supplemental record requested by Pearman. These fourteen exhibits consisting of internet news articles, a still shot of a YouTube recording showing Pearman in a workout video, and internet stories and posts, which included negative comments about Pearman and photographs of Pearman, the victim, and the victim's son with his face obscured.

         At the hearing on this motion, the trial court heard arguments from the parties, reviewed the applicable factors, and considered the documents submitted by Pearman. It found that despite Pearman's arguments to the contrary, the publicity about the case had not permeated the area and that "the majority of the publicity in this case was created immediately at the time of the event and between that time and the time of the preliminary hearing." The court added:

Since then, there ha[ve] been some anecdotal stories. Yes, there's something up on YouTube, and there's something called The Dirty and the Murfreesboro Pulse and other things that seem to continue maybe to bring it up. But the Court does not ...

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