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State v. Howell

Court of Criminal Appeals of Tennessee, Nashville

January 11, 2018


          Session Date: July 18, 2017

         Appeal from the Criminal Court for Davidson County No. 2015-B-857 Monte Watkins, Judge

         The 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.

          Drew Justice, Murfreesboro, Tennessee, for the appellant, Matthew Glen Howell.

          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.

          James 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.



         In 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.

         The 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 defendant's home.

         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."

         Because 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.

         At some 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.

          While 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.

         On the 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 that place."

         Approximately 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 incoherent.
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 f[***]ing now."
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."

         Through 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 telephone.

         The 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."

         Metropolitan 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.

         When 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.

         After 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.

         On 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.

         With 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.

         Edward 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. ...

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