Court of Criminal Appeals of Tennessee, Nashville
Session Date: July 18, 2017
from the Criminal Court for Davidson County No. 2015-B-857
Monte Watkins, Judge
defendant, Matthew Glen Howell, who was originally charged
with aggravated assault, appeals his 2016 Davidson County
Criminal Court conviction of simple assault, which was
imposed by the trial court after the jury found the defendant
guilty of the inapplicable lesser included offense of
reckless aggravated assault. The defendant argues that,
because the jury acquitted him of the crime of intentional or
knowing aggravated assault and instead found him guilty of
reckless aggravated assault, the trial court erred by
amending the conviction offense to one that required an
intentional or knowing mens rea. The defendant also
challenges several of the trial court's evidentiary
rulings. Because the jury found the defendant guilty of a
crime that did not exist under the facts of the case and
because double jeopardy and collateral estoppel principles
precluded the trial court from imposing a conviction that
required an element of which the defendant had already been
acquitted, the defendant's conviction of simple assault
is vacated, and the case is dismissed.
Justice, Murfreesboro, Tennessee, for the appellant, Matthew
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Assistant Attorney General; Glenn R. Funk, District
Attorney General; and Derry Harper, Assistant District
Attorney General, for the appellee, State of Tennessee.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which John Everett Williams, J., joined. Timothy L. Easter,
J., filed a separate dissenting opinion.
CURWOOD WITT, JR., JUDGE
April 2015, the Davidson County Grand Jury charged the
defendant with one count each of resisting arrest and
aggravated assault by causing the victim, Liela Avila, to
fear bodily injury by use or display of a deadly weapon. The
trial court conducted a jury trial in February 2016.
State's proof at trial showed that the victim moved to
Nashville in early September of 2014 to pursue a career in
music. Approximately one month later, she met the defendant
at a karaoke bar and mentioned that she was searching for a
new place to live. The defendant told the victim that he had
a room to rent at his residence at 1236 Canyon Ridge Court,
and the victim agreed to pay $350 per month in rent. The
victim moved into the defendant's residence around
October 12, 2014, and met the defendant's
then-girlfriend, Alisha Brown, who also resided at the
victim testified that she, the defendant, and Ms. Brown got
along well at first. At some point in November, the
defendant's dog escaped from the house and attacked a
neighbor's cat. According to the victim, the defendant
blamed the victim for the incident and told her that she owed
"a couple thousand dollars" for the cat's
veterinary bills. The victim received a citation from Animal
Control. She went to court, explained that she
"wasn't guilty, " and the court cited the
defendant instead "because it was his dog and [the
victim] wasn't even home at the time" of the
incident. The defendant then informed the victim that he and
the cat's owner had agreed to settle the matter for
approximately $1, 600 and that the victim "was gonna
have to pay for it."
the victim was preparing to fly to Los Angeles to spend
Thanksgiving with her family and because she was concerned
about starting a "heated argument" with the
defendant when she was leaving all of her personal belongings
in the defendant's house, the victim "just tried to
play it cool" and told the defendant that she would
"deal with" the situation when she returned to
Nashville on December 8.
point after moving into the defendant's house but before
leaving town for Thanksgiving, the victim purchased a 1996
Chevrolet Lumina from a friend of the defendant's, whose
name the victim could not recall. The victim testified that
she paid the friend $1, 600 and that he "signed over the
pink slip" for the vehicle while the two were standing
in the kitchen of the defendant's residence. Through the
victim's testimony, the State introduced into evidence a
copy of the vehicle's certificate of title, which lists
the victim as the owner of the vehicle. The victim denied
obtaining the vehicle's title from the defendant or
paying the defendant for the vehicle.
the victim was in California, the defendant contacted her to
inform her that her new vehicle, which was parked on the
street in front of the defendant's house, was blocking
his mailbox and that the mailman was going to have the car
towed because of his inability to deliver the mail. The
defendant asked her to mail him a set of her car keys so that
he could move her vehicle and prevent its being towed.
Because the victim had two sets of car keys, she mailed one
set to the defendant.
evening of December 7, the victim received a text message
from the defendant, which stated, "'You need to find
a new place to live, because you can't live here
anymore.'" The victim sent a text message back to
the defendant, asking him what he was talking about, but the
defendant never responded. When the victim returned to
Nashville the following evening, she took a taxi to the
defendant's residence, arriving between 9:00 and 9:30
p.m. The front door to the residence was unlocked, and the
victim walked inside. She immediately asked the defendant
about the location of her vehicle, having noticed that it was
not parked in front of the house. The defendant responded,
"'You aren't going to see that car again, unless
you pay me the money for the vet bill.'" The victim
"tried to reason with him" but found it difficult
because the defendant "was very intoxicated." The
victim eventually told the defendant that she would
"walk to a place" so that she could ask her
"parents to wire [her] some money." The victim
testified that her intent was to pay "half" of the
veterinarian's bill, explaining that, even though the
dog's escape from the residence was not her fault, she
"was willing to pay six-hundred bucks, to just get [her]
things and leave and never look back, and just get away from
45 minutes later, the victim returned to the defendant's
residence and again entered though the unlocked front door.
The victim informed the defendant that she had the money but
that she needed to know the location of her car. The
defendant replied that the car had been parked in his garage
all along. The victim then described what happened next:
I started to gather some of my belongings and started to put
it in the car. Again, he was very intoxicated. He was
downstairs on the sofa. He wasn't really - he didn't
really know what was going on. He was just kind of
I was just trying to just get my things and just go, as
quickly as I could. And, when I had most of my stuff packed
away, I was - I had told him, "I'm leaving, and
I'm not giving you any money. And, if you don't let
me leave, I'm gonna call the cops."
. . . .
After that I - at that - when I said that, I was upstairs, at
the top of the stairs, still gathering some of my things from
my room; the [d]efendant was at the bottom of the stairs.
I turned around back to my room, just to grab a coupla [sic]
more things. And, as I left the room and went to the stairs,
I saw the [d]efendant with a gun, coming - stumbling up the
stairs towards me, pointing the gun at my head.
. . . .
He had the gun in his right hand. He had his hand on the
banister; and he was stumbling drunk up the stairs, pointing
the gun at me, and he was yelling at me.
. . . .
He said, "You're leaving my f[***]ing house right
And I said, "Please don't point a gun at me."
And he said, "[Y]ou are godd[***] certain. Get the
f[***] out of my f[***]ing home now."
the victim's testimony, the State introduced into
evidence and played for the jury an audio recording of the
preceding four-sentence exchange that the victim made on the
night in question using an application on her cellular
victim testified that she was "in shock" and was
"very afraid that the gun was going to go off and
shoot" her. According to the victim, as the defendant
began ascending the stairs toward her, she developed
"tunnel vision, " dropped her remaining personal
belongings, and fled through the front door. The victim then
ran to a neighbor's house, where she called 9-1-1 to
report that her "roommate pointed a gun at" her and
"wouldn't let [her] leave with [her] property."
Nashville Police Department ("Metro") Officers
Joshua Vaughn and Wallis Massey were the first to respond to
a call of a "domestic-related" situation that
involved a handgun at 1236 Canyon Ridge Court in the early
morning hours of December 9. Officer Massey initially spoke
with the victim, who was standing outside of a residence a
few houses away from the subject address, and the victim told
Officer Massey that the defendant had threatened her with a
handgun if she did not pay her rent. Officer Vaughn and
Officer Justin McCormick, who had just arrived on the scene,
approached the defendant's residence, and the defendant
appeared at the front door. When the officers asked the
defendant to explain what had transpired, the defendant
repeatedly claimed that he had done "nothing wrong"
and that he had "never placed hands on the victim."
When Officer McCormick asked the defendant if he was in
possession of any weapons, the defendant responded that he
had weapons inside the house but none on his person. Officer
McCormick asked the defendant if he could conduct a pat-down,
and the defendant adamantly refused. Believing that a
pat-down was necessary to ensure his safety, Officer
McCormick grabbed the defendant's left arm, prompting the
defendant to turn and pull away from Officer McCormick. Other
officers then stepped in to assist Officer McCormick in
placing handcuffs on the defendant.
the defendant had been taken into custody and given his
Miranda warnings, the defendant told Officer
McCormick that "he had a handgun during the incident and
that it was down to the side but he never pointed it at the
victim." The defendant also stated that "he
wasn't stupid and wouldn't have one in the
chamber." Detective Daniel Polk, who spoke with the
defendant on the scene after issuing Miranda
warnings, recalled that the defendant had told him that he
had the gun "in [his] hand" but that he "did
not point it at" the victim during the dispute. Officer
Vaughn recovered the handgun at issue, which was a
semiautomatic Glock and which was loaded with a magazine
containing 45-caliber bullets.
the defendant had been placed in a police car, Officer Massey
and Metro Officer James Jensen accompanied the victim back
inside the residence so that she could retrieve her remaining
belongings. When the victim entered her car inside the
garage, the engine would not start. The victim then asked the
officers if they would assist her in pushing her vehicle into
the street so that she could have the car towed. The officers
informed the victim that they were unable to assist her
because they had no proof of ownership of the vehicle, so the
victim placed her car into neutral and pushed the car onto
the street. The victim slept inside her vehicle that night,
and the following morning, the victim had the vehicle towed.
cross-examination, the victim clarified that she had paid the
defendant a total of $700 in rent: $350 for October and
another $350 on November 1. The victim denied that the
defendant had "kicked [her] out" of his house in
November, but she admitted that she had never had a key to
the residence. Although the victim admitted that she had
contacted her friend, Shawn, during the time period when she
left the defendant's house under the guise of collecting
money for him, she denied that Shawn had ever entered the
defendant's house on the night in question.
this evidence, the State rested. Following a Momon
colloquy and the trial court's denial of the
defendant's motion for judgments of acquittal, the
defendant elected to testify and to present proof.
Allen Yeargan testified that he had power of attorney for his
wife's parents and that he had sold their 1996 Chevrolet
Lumina to the defendant on December 1, 2014. Mr. Yeargan
testified to the difficulties the defendant had in locating
the original title document and in actually getting the
vehicle titled in the defendant's name. Through Mr.
Yeargan's testimony, the defense marked for
identification purposes photocopies of the purported bill of
sale and duplicate car title. Mr. ...