Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 26, 2017 at Knoxville
from the Circuit Court for Houston County No. 2015-CR-3
Suzanne Lockert-Mash, Judge
Defendant, Jonathan C. Buckner, was convicted by a Houston
County Circuit Court jury of theft of property valued at $1,
000 or more but less than $10, 000, a Class D felony.
See T.C.A. § 39-14-103 (2014). The trial court
sentenced the Defendant as a Range III, persistent offender
to twelve years' confinement and ordered that his
sentence be served consecutively to a sentence in an
unrelated case. On appeal, the Defendant contends that the
trial court erred (1) by failing to provide witnesses and
prospective jurors proper instructions before jury selection,
(2) by admitting inadmissible hearsay evidence, (3) by
denying his two motions for a mistrial, (4) by overruling
defense objections during the prosecutor's opening
statement and closing argument, and (5) during sentencing. We
affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
T. Smith, Clarksville, Tennessee, for the appellant, Jonathan
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel; Ray Crouch, District Attorney
General; and Talmage Woodall, Assistant District Attorney
General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr.,
H. MONTGOMERY, JR., JUDGE.
case arises from a December 9, 2014 incident in which the
Defendant test drove an all-terrain vehicle (ATV) owned by
Dylan Hutchinson. The Defendant was indicted for theft of
property valued at $10, 000 or more but less than $60, 000, a
Class C felony. At the trial, Mr. Hutchinson testified that
he posted an online advertisement on Craigslist to sell his
2013 Polaris Razor ATV for $10, 500. Mr. Hutchinson purchased
the ATV for $11, 500 on May 30, 2014. Photographs of the ATV
and the bill of sale, reflecting the vehicle identification
number and sale price, were received as exhibits. After he
purchased the ATV, Mr. Hutchinson spent $7, 000 on upgrades.
December 9, 2014, at 7:00 a.m., the Defendant called Mr.
Hutchinson regarding purchasing the ATV. The Defendant wanted
to view the ATV immediately and told Mr. Hutchinson that he
was leaving the state to "ride tomorrow" and needed
to purchase another ATV because the Defendant's ATV was
not operational. The Defendant offered $10, 000 cash during
the telephone conversation, and Mr. Hutchinson accepted. The
Defendant told Mr. Hutchinson he was from "Cumberland
Furnace" and arrived at Mr. Hutchinson's home around
9:00 a.m. with Tracy Manning and a U-Haul vehicle. The
Defendant did not provide his name to Mr. Hutchinson, but Mr.
Hutchinson agreed to allow the Defendant to take the ATV for
a test drive before paying for it because the Defendant
wanted to ensure the transmission did not slip or become hot.
Mr. Hutchinson told the Defendant to "take it up the
driveway and come back down here, " but the Defendant
drove the ATV off Mr. Hutchinson's property. The
Defendant left his toboggan and sunglasses with Mr.
Hutchinson, but Mr. Hutchinson denied looking at the toboggan
or noticing an envelope of money inside the toboggan.
Black, Mr. Hutchinson's cousin, was present when the
Defendant and Ms. Manning arrived. After the Defendant drove
the ATV off Mr. Hutchinson's property, Mr. Black stayed
with Ms. Manning, and Mr. Hutchinson left to find the
Defendant. Mr. Hutchinson saw Erin Police Chief Moore when
Mr. Hutchinson was attempting to find the Defendant, and Mr.
Hutchinson explained that the Defendant had stolen the ATV.
Police Chief Moore and Mr. Hutchinson drove to Mr.
Hutchinson's home, and Police Chief Moore questioned Mr.
Hutchinson, Mr. Black, and Ms. Manning. Mr. Black told the
police that he did not see the Defendant and Mr. Hutchinson
exchange money before the Defendant drove away on the ATV but
that the Defendant gave his toboggan to Mr. Hutchinson before
leaving on the ATV. Mr. Black recalled that before the
Defendant left on the ATV, the Defendant mentioned living on
"Buckner Loop, " but Mr. Black did not "get
wherever [the Defendant] lived." Mr. Black did not talk
to Ms. Manning and left the home after speaking to the
police. At some point, Mr. Hutchinson called his father,
Tommy Hutchinson, about the incident, and Tommy Hutchinson
came to the home. After the police left the home, Dylan and
Tommy Hutchinson left to continue looking for the Defendant
and the ATV.
and Tommy Hutchinson received information from Terry Buckner,
Dylan Hutchinson's coworker, that the ATV could have been
in the Cumberland Furnace area, and Dylan Hutchinson informed
the police of the information and drove to Cumberland
Furnace. The Hutchinson men found the Defendant and the ATV
on Buckner Loop behind a home, but the Defendant drove the
ATV into a field. Dylan Hutchinson informed the police that
he had found the ATV, drove his truck into the field
following the Defendant, and Dylan and Tommy Hutchinson got
out of Dylan Hutchinson's truck. Tommy Hutchinson stood
blocking the only exit to the fenced-in field, and the
Defendant "came down the hill wide open" at Tommy
Hutchinson. Dylan Hutchinson estimated the ATV's speed at
sixty-eight miles per hour, which was the ATV's maximum
speed. Tommy Hutchinson pulled out an unloaded pistol and
inserted the magazine clip when it became clear the Defendant
was not going to stop the ATV. Tommy Hutchinson fired the
pistol twice, and the Defendant turned the ATV around, drove
in the opposite direction, and "busted out of the
fence" onto the roadway.
time, Dylan Hutchinson's brother arrived in his truck and
chased the Defendant but "lost" the Defendant
during the pursuit. Tommy Hutchinson called the police to
inform them of what had occurred, and all three Hutchinson
men met at a nearby intersection and waited for Montgomery
County Sheriff's Detective Moss to arrive. The detective
told the men to wait at the intersection and drove away
attempting to find the Defendant and the ATV. The detective
returned a few minutes later following the Defendant and the
ATV. The Hutchinson men had the roadway blocked with their
trucks, but the Defendant did not stop and drove over a
driveway and through another field. Dylan Hutchinson followed
the Defendant, but the Defendant did not stop the ATV until
Josh Bateman, Tommy Hutchinson's coworker, struck the ATV
with a truck. Dylan Hutchinson got out of his truck,
approached and grabbed the Defendant, and was told by the
police to "back off."
Manning testified that she went with the Defendant to Mr.
Hutchinson's home because the Defendant said he was going
to purchase an ATV for a friend, who wanted it for the
friend's wife. She and the Defendant picked up the U-Haul
truck from the Defendant's friend, and the Defendant
drove the truck to Mr. Hutchinson's home. The Defendant
agreed to pay her $50 for her time. She called and sent text
messages to the Defendant's cell phone when she realized
the Defendant had been gone too long on the "test
drive." She identified herself to the police officers
who came to Mr. Hutchinson's home but told the officers
the Defendant's name was Jason. She thought she told the
officers the Defendant's last name was Evits, but she was
Police Officer Jamie Patterson testified that on the day of
the incident, he was off duty in his personal vehicle when he
saw the ATV traveling around sixty miles per hour on Main
Street. He saw the Defendant drive the ATV recklessly, almost
causing several motor vehicle accidents. Officer Patterson
called Police Chief Moore about the ATV and provided
information related to the direction in which the ATV
Police Chief Mark Moore testified that he received
information about the ATV being driven recklessly and that he
attempted to find it. Chief Moore stopped at "Sudden
Service" and was approached by Dylan Hutchinson, who
told him about the day's events and about Ms.
Manning's remaining at Mr. Hutchinson's home. Police
Chief Moore drove to Mr. Hutchinson's home. Ms. Manning
told Police Chief Moore that the Defendant's name was
Jason Evits, but Mr. Hutchinson said the photograph
associated with Jason Evits' driver's license did not
reflect the person who drove away on the ATV.
Chief Moore and Houston County Sheriff's Deputy Hooper
took Ms. Manning to the Houston County Sheriff's office
for questioning. Police Chief Moore received a telephone call
from Mr. Hutchinson, who reported finding the ATV and the
Defendant. Police Chief Moore relayed the information to
Montgomery County law enforcement officers, who found Mr.
Hutchinson, the Defendant, and the ATV. A police pursuit
began, and Police Chief Moore and Deputy Hooper left the
Houston County Sheriff's Office and joined the pursuit.
The Defendant was inside an ambulance when they arrived at
the scene, and the Defendant was later released and taken
into police custody. Police Chief Moore recalled the
Defendant stated that he took the ATV but that he paid
"some money" for it.
County Sheriff's Deputy Ethan Moss assisted the Houston
County Sheriff's Department in locating the Defendant and
the ATV. Deputy Moss turned on his blue lights after locating
the ATV, but the Defendant "fled" the area. The
Defendant waved at Deputy Moss during the pursuit, which
lasted about fifteen minutes and ended with Josh
Bateman's driving a truck into the ATV. The Defendant
told Deputy Moss that the Defendant thought the police, Mr.
Hutchinson, and Mr. Hutchinson's family were trying to
kill him. A video recording from Deputy Moss's police car
of the pursuit was played for the jury.
Defendant, who said he had pleaded guilty to reckless
endangerment, robbery, and aggravated robbery in previous
cases, testified that he was purchasing the ATV for a friend,
Steve, who wanted the ATV for his wife. The Defendant said
that he and Ms. Manning arrived at Mr. Hutchinson's home,
that the men discussed the ATV, and that the Defendant
mentioned having family in the Cumberland Furnace area. The
Defendant was prepared to pay $8, 500, which was inside his
jacket pocket. Mr. Hutchinson permitted the Defendant to
drive the ATV, and the Defendant removed an envelope of cash
from his jacket, placed it in a toboggan, and gave the
toboggan to Mr. Hutchinson to hold until he returned from the
test drive. The Defendant said Mr. Hutchinson told the
Defendant to drive the ATV on Mr. Hutchinson's property,
but the Defendant told Mr. Hutchinson that he wanted to drive
it on the road and "open it up." The Defendant said
Mr. Hutchinson did not "say no or anything" and
denied attempting to drive away and not return.
Defendant testified that during his test drive, Ms. Manning
sent him a text message telling him not to return to Mr.
Hutchinson's home because the men claimed the Defendant
had stolen the ATV. The Defendant called Ms. Manning, who
informed him the police were at Mr. Hutchinson's home,
and the Defendant ended the call without mentioning the $8,
500. The Defendant said that he did not return the ATV
because of his previous experiences with the police and that
he planned to abandon it somewhere and later inform Mr.
Hutchinson of the location. The Defendant drove to his
parents' home but did not hide the ATV inside the garage.
The Defendant saw a truck, a passenger holding a pistol out
of the truck's window, and heard a gunshot, prompting the
Defendant to "take off" on the ATV. The Defendant
drove into a field and was followed by the truck, and he said
Tommy Hutchinson fired a gun three or four times at him. The
Defendant denied driving the ATV directly toward Tommy
Hutchinson. The Defendant was scared, drove away from the
truck, and was ultimately hit by another truck. The Defendant
said the incident was a misunderstanding about where he could
drive the ATV.
this evidence, the Defendant was convicted of theft of
property valued at $1, 000 or more but less than $10, 000.
This appeal followed.
Witness and Juror Instructions
Defendant contends that the trial court erred by failing to
instruct trial witnesses not to sit in the courtroom gallery
among the prospective jurors before jury selection began. The
Defendant argues that a small adjacent room to the courtroom
should have been used for trial witnesses to prevent
witnesses from interacting with the prospective jurors on the
first day of the trial. He argues, without citation to legal
authority, that the interaction deprived him of his right to
a fair trial. The State responds that the issue is waived
because the Defendant failed to cite to legal authority in
his brief and alternatively, that the Defendant has failed to
show prejudice resulting from witnesses and prospective
jurors being present inside the courtroom before the trial
preliminary matter, the Defendant references a pretrial
motion hearing in which the trial court granted his motion
for "witness sequestration" in accordance with
Tennessee Rule of Evidence 615. The Defendant argues that
although the State knew that its witnesses were not to be
present inside the courtroom, the witnesses were inside the
courtroom until the prosecutor requested a bench conference,
resulting in the trial court's requesting that trial
witnesses stand and leave the courtroom. However, the record
does not reflect any motion or trial court order relative to
Rule 615. We note that the Defendant's brief cites
neither to the relevant portion of the record regarding the
motion, although he cites to three pages of the trial
transcript relative to when the bench conference occurred
before the trial began, nor to any legal authority supporting
his argument that his right to a fair trial was denied.
See Tenn. Ct. Crim. App. R. 10(b) ("Issues
which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as
waived in this court.").
event, the record fails to reflect that the defense objected
to the manner in which the trial court conducted the
proceedings. When the trial court came to order on the first
day of the trial, the trial judge told the venire of
prospective jurors to come forward from the gallery to be
seated in the jury box when the juror's name was called
by the court clerk. The judge noted the courtroom was small
but that names would be called until the jury box seating was
full with thirteen prospective jurors. After the court clerk
called the first prospective juror's name, the prosecutor
requested a bench conference. The bench conference was
"had off [the] record, " and any statements made by
the prosecutor, defense counsel, and the judge are not
reflected in the transcript.
the bench conference concluded, the trial judge stated,
"Any witnesses that are present would you please stand -
witnesses for this case, so you're already
standing." The prosecutor noted that Officer Patterson,
the State's designated prosecuting officer, was also in
the courtroom. The judge stated
Those of you who will be witnesses in this case I'm going
to have to ask you to step out and stay outside of the
presence of this Court until you are called in to testify.
While you are outside or wherever you are do not discuss this
case with anyone until completion of this case.
Once you are called in to testify, if you are excused, then
you may sit in the courtroom to watch the proceedings; but
you are still not to discuss your testimony with anyone until
it is completed.
So if you will, if you will step outside until you are
called. There's a table at the very end of the hall you
can go back there and have a seat.
record reflects that the witnesses complied with the
judge's instructions, and the court clerk resumed calling
prospective jurors to enter the jury box.
record does not reflect that the defense objected to the
witnesses being inside the courtroom. To the contrary, the
prosecutor sought a bench conference just before the trial
court instructed the witnesses to leave the courtroom.
Furthermore, because the transcript does not reflect what was
stated during the bench conference, this court is unable to
determine what the parties discussed, whether the defense
objected to the manner in which the trial court resolved the
potential issue, or whether the defense alleged the
Defendant's right to a fair trial had been denied because
witnesses had been inside the courtroom gallery with
prospective jurors. Because the record does not reflect that
the defense objected, the issue is waived. See
T.R.A.P. 36(a) ("Nothing in this rule shall be construed
as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an
error."). The Defendant is not entitled to relief on
Defendant contends that the trial court erred by allowing
Tommy Hutchinson and Police Chief Mark Moore to provide
testimony relative to Dylan Hutchinson's statements at
the time of the offense. He argues that the evidence was
inadmissible hearsay and that the evidence violated his right
to a fair trial. The State responds that the trial court
properly allowed the testimony.
"is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted." Tenn. R.
Evid. 801(c). Hearsay is inadmissible unless it qualifies as
an exception. Id. at 802. A trial court's
factual findings and credibility determinations relative to a
hearsay issue are binding upon an appellate court unless the
evidence preponderates against them. Kendrick v.
State, 454 S.W.3d 450, 479 (Tenn. 2015). The
determination of whether the statement in question is hearsay
and whether a hearsay exception applies are questions of law
that are reviewed de novo. Id.
record reflects that during Tommy Hutchinson's testimony,
the prosecutor asked if he recalled his son, Dylan
Hutchinson, calling him about the incident. Tommy Hutchinson
recalled receiving a telephone call from his son around
lunchtime. The prosecutor asked what Dylan Hutchinson said
during the telephone call, and the defense objected on the
basis of inadmissible hearsay. The prosecutor responded that
Dylan Hutchinson had already testified, and defense counsel
said, "That doesn't matter." The trial court
overruled the objection and determined that Dylan Hutchinson
had already testified and had been subject to
cross-examination by the defense relative to what Dylan
Hutchinson told his father during the telephone conversation.
Tommy Hutchinson then testified that Dylan Hutchinson
reported "that a guy . . . come to test drive his [ATV]
. . . and hadn't returned" and that Dylan Hutchinson
thought the person "stole it." Tommy Hutchinson
testified that upon hearing this information, he told Dylan
Hutchinson to call the police and that Tommy Hutchinson left
work and drove to Dylan Hutchinson's home.
State argues on appeal that the statement was not offered for
the truth of the matter asserted that the Defendant stole the
ATV but rather, that the testimony was to show why Tommy
Hutchinson came to his "son's assistance, "
which is in essence an assertion that the testimony regarding
the conversation was to show the effect the conversation had
on Tommy Hutchinson. We disagree. The prosecutor did not
respond to the hearsay objection that the testimony was to
show the effect on Tommy Hutchinson. The prosecutor's
response that Dylan Hutchinson had already testified shows
that the testimony was offered for its truth. The trial
court's statements support this conclusion, as well, and
we note the court did not state that the testimony was not
offered for its truth. Therefore, the testimony was hearsay
in the manner it was offered. Furthermore, no exception to
the rule barring the admission of hearsay evidence applied,
rendering its admission erroneous.
the admission of the testimony was harmless because Dylan
Hutchinson had previously testified he called his brother and
his father on the telephone to tell each of them that
"somebody had stole[n] the [ATV]." Dylan Hutchinson
identified the Defendant as the person who took the ATV
during his testimony. Dylan Hutchinson also testified that
his brother and father both left work, that Tommy Hutchinson
came to Dylan Hutchinson's home, and that after the
police left Dylan Hutchinson's home, Dylan and Tommy
Hutchinson left to search for the Defendant and the ATV.
Therefore, the record reflects that during Dylan
Hutchinson's testimony, the jury was presented evidence
that Dylan Hutchinson believed the Defendant had stolen the
ATV and that he had relayed this information to his father,
Tommy Hutchinson. We note that Dylan and Tommy Hutchinson
were each subject to cross-examination. As a result, the
Defendant is not entitled to relief on this basis.
Police Chief Moore
to Police Chief Moore, the record reflects that during direct
examination, Chief Moore stated that he received a telephone
call from Dylan Hutchinson on the day of the incident. The
prosecutor asked Chief Moore what Dylan Hutchinson said
during the conversation, and the defense objected on the
basis of hearsay. The court, without obtaining a response
from the prosecutor, determined that the evidence was not
being offered for its truth and that Dylan Hutchinson had
already testified. Chief Moore was permitted to testify about
Dylan Hutchinson's stating that he thought the Defendant
had stolen the ATV. The State, again, argues on appeal that
the evidence was not offered for its truth but rather to show
the effect Mr. Hutchinson's information had on Chief
Moore as it related to the police investigation, although
this explanation was not provided at the trial.
event, the record reflects that immediately after asking
Chief Moore about the conversation, the prosecutor asked what
Chief Moore did after receiving information from Mr.
Hutchinson. This supports the trial court's determination
that the testimony was offered to show the effect the
information had on Chief Moore, specifically how Chief Moore
investigated the allegation. The Defendant is not entitled to
relief on this basis.
Motions for a mistrial
Defendant requested two mistrials during the trial, which the
trial court denied. The motions relate to a juror's
observing the Defendant in a holding room during a trial
recess and to a witness's testifying to information that
was excluded by the court during a jury-out hearing. The
State responds that the trial court properly denied the
judge should declare a mistrial if manifest necessity arises.
Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim.
App. 1977). Manifest necessity occurs when "no feasible
alternative to halting the proceedings" exists.
State v. Knight, 616 S.W.2d 593, 596 (Tenn. 1981).
"The granting or denial of a mistrial is within the
sound discretion of the trial court." State v.
McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996);
see State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim.
App. 1990). This court will only disturb that decision if the
trial court abused its discretion. State v. Adkins,
786 S.W.2d 642, 644 (Tenn. 1990).
record reflects that after the jury was selected and the
Defendant pleaded not guilty, the trial court addressed
various matters outside the presence of the jury. The defense
requested a mistrial on the basis that a juror saw the
Defendant in a holding area during a previous recess. Trial
counsel told the court that the Defendant was sitting in the
holding room when a juror, who was looking for water, looked
inside the room and made eye contact with the Defendant. The
court explained that the room at issue was a "holding
cell with a regular door on it" with no sign designating
the room's use. The court noted that the Defendant was
dressed in "street clothes, " was not shackled or
handcuffed, and was not being escorted from the room to the
courtroom by police officers but rather by counsel. The court
found that no evidence showed the Defendant was restrained or
trial court identified the juror who was alleged to have seen
the Defendant inside the room, and after an open courtroom
discussion, the trial judge requested Youth Services Officer
Lori Tifft testify about the incident. Upon examination by
the court, Officer Tifft testified that her office was to the
right of the relevant holding room. She said that as she
walked up the stairs during a court recess, a juror stopped
her and asked where the juror could find a bottle of water.
Officer Tifft offered the juror water, which was inside the
officer's office, and the officer and the juror walked to
the officer's office. Officer Tifft said that her office
door was open, that the juror waited at the door for the
water bottle, and that the juror's back was toward the
holding room, which had a small window covered with paper.
Officer Tifft said the juror immediately entered the
courtroom after receiving the water. Officer Tifft agreed
that the window on the holding room door had been covered
with paper at all times and that it was impossible for the
juror to have seen through the window.
cross-examination, Officer Tifft said that the paper covered
the entire widow on the holding room door, except for "a
little gap on the side." She said she did not know at
what the juror looked when Officer Tifft retrieved the bottle
of water. She said, though, it took about two or three
seconds to retrieve the water and hand it to the juror.
trial court found that no evidence showed the room appeared
to be a "holding cell" because of the nature of the
door and the absence of bars. The prosecutor and trial
counsel examined the door and agreed that it did not have a
door knob and that on the window, a one-inch gap on one side
of the window ...