Court of Criminal Appeals of Tennessee, Knoxville
Session: January 23, 2019
from the Criminal Court for Hamblen County No. 14CR619 Alex
E. Pearson, Judge
Defendant, Ronald Ailey, was convicted by a jury of two
counts of aggravated assault. Thereafter, the trial court
imposed concurrent terms of four and one-half years, denied
the Defendant's request for judicial diversion, and
ordered the Defendant to serve six months' incarceration
before being released on supervised probation. Upon the
Defendant's motion for new trial, he argued that he
received ineffective assistance of counsel due to trial
counsel's failure to call exculpatory witnesses, failure
to investigate and prepare for trial, failure to impeach
certain State's witnesses, failure to prepare the
Defendant to testify, failure to object to improper
questioning of the Defendant on cross-examination, and
failure to adequately advise the Defendant during plea
negotiations. On appeal, the Defendant contends that the
trial court erred by denying him judicial diversion or total
probation and by applying certain enhancement factors. He
also challenges the trial court's ruling that he received
the effective assistance of counsel at trial. Upon a thorough
review of the record and the applicable law, we affirm the
judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
V. Davies (on appeal and at sentencing), Knoxville,
Tennessee; and Jonathan M. Holcomb (at trial), Morristown,
Tennessee, for the appellant, Ronald Ailey.
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Senior Counsel; Dan E. Armstrong, District
Attorney General; and Kimberly L. Morrison, Assistant
District Attorney, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
August 21, 2014, a confrontation occurred in a rural area
outside Morristown known as "Boatman Mountain,"
during which the Defendant fired his handgun four times.
Thereafter, the Hamblen County Grand Jury indicted the
Defendant for two counts of aggravated assault by knowingly
causing a ten-year-old girl ("the minor victim")
and her thirty-three-year-old brother ("the adult
victim"), to fear imminent bodily injury by displaying a
deadly weapon. See Tenn. Code Ann. § 39-13-102.
Following a jury trial, the Defendant was convicted as
calls recounting the incident were entered into evidence at
the beginning of trial. The first call was placed by the
adult victim at 8:00 p.m., and he relayed to the operator
that the Defendant had shot at him four times. Also at 8:00
p.m., a call came in from a neighbor, who lived at 1736
Boatmans Ridge Road, wherein the caller stated that a man in
a white truck "just pulled up and started yelling"
and shots were fired. This caller also said that the noise
"could've been a firecracker." The next call
came from the victims' father at 8:01 p.m. The operator
asked the victims' father what was "the reason why
[the man] was shootin' off the gun?" The
victims' father replied, "I don't know the whole
story[.]" The victims' father said that the shooter
was "supposedly" the Defendant. The victims'
father also told the operator:
I mean I don't really know what happened. I live down
here. That was my little girl and my boy, and
(unintelligible) said there were gunshots fired. And some
people up here seen it [sic], and I'm down here calming
my little girl down, and he was hollering. I don't know
if my, the lady came up there and jumped all over him, and he
called her a b---h or what, but my God, that doesn't give
him right to come out here with a gun.
adult victim called again at 8:12 p.m. to see how much longer
before the officers arrived.
Defendant's wife called 911 at 8:15 p.m. She relayed her
version of events and informed the 911 operator that her
husband had returned home. At 8:20 p.m., an officer phoned
the Defendant's residence and spoke with the Defendant,
telling "him to stay put[.]" While this officer was
speaking with the Defendant, the Defendant stated, "I
hate that it happened. He just started coming towards me, and
I just shot in the ground, I didn't know what to do. I
didn't want to shoot him. . . . I just didn't like
someone walking on my private property."
adult victim testified that, at the time of this
confrontation, he had lived with his parents for thirty-one
years in their house on Buggy Road, just off Boatmans Ridge
Road. He was five feet, eleven inches tall and weighed around
195 pounds. According to the adult victim, he had walked
around Boatmans Mountain over the years, and he had never
"had any issues" walking on other people's
property. He stated that he took regular afternoon walks with
his ten-year-old sister, the minor victim, because "[i]t
was her favorite thing to do[.]"
adult victim explained that, while walking through this area,
he had regularly cut through an open gate on the Aileys'
property using their driveway to reach another residence.
According to the adult victim, this gate was an approximate
fifteen-minute walk from his home. The adult victim stated
that he had worked "plenty of times" for the
Coffmans who lived in the residence past the Aileys'
home. He claimed that he was not aware of any other way to
get to the Coffmans' residence. When asked if he was
aware that the driveway was private property, the adult
victim replied, "I thought it was a right-of-way road
out there. And I have walked out there and rode bicycles out
there for thirty plus years." The adult victim indicated
that he never saw a "no trespassing" sign posted at
the gate. The adult victim further maintained that he had
seen garbage trucks drive down the road, so he assumed that
the driveway was an access road open to the public. The adult
victim explained that his family had to move their garbage
cans to the end of their driveway because the collection
trucks would not drive down the driveway.
August 21, 2014, he and his sister went for a walk. Because
the temperature outside was around ninety degrees, the adult
victim carried "a kid's backpack" on his
shoulders that was full of bottles of water, granola bars,
and some Yoo-hoos. He described the backpack as "a
two-shoulder backpack" that was approximately ten to
twelve inches in length and similar to a book bag in which
someone would put books and carry to school. He asserted that
it was not a "duffel bag[.]"
to the adult victim, he and his sister had passed the
Aileys' gate and were walking along the roadway when some
dogs, which appeared to be Labrador Retrievers, came
"running" at them from the direction of the
Aileys' house. The adult victim stated that the minor
victim was "very scared and started crying" because
"she thought the dogs were going to eat her up."
The adult victim tried to reassure his sister that the dogs
would not harm her, so he went towards them to try to pet
them. The adult victim knelt down "where the pavement
stopped" and tried to call the dogs over to them. The
adult victim relayed that Mrs. Ailey emerged at that time.
The adult victim asserted that he had the backpack on his
shoulders when they encountered Mrs. Ailey.
to the adult victim, as Mrs. Ailey started to walk towards
them, she was "hysterical" and yelled, "[Y]ou
are on private property, leave, get out of here, get off my
property, you are not supposed to be here." The adult
victim provided Mrs. Ailey with his father's name and
told her that he had lived nearby for thirty years and that
he and his sister were "just walking." The adult
victim maintained that he "tried to talk" to Mrs.
Ailey, "but she wasn't having it." She insisted
that they leave immediately, so he and his sister
"turned around" and started back the way they came.
The adult victim testified that, while he and his sister
continued to retreat, Mrs. Ailey followed them, repeatedly
telling them that they were on private property and needed to
leave. The adult victim retorted to Mrs. Ailey that "she
didn't have to be mean about it and be a b---h about
it." According to the adult victim, it took them
"maybe thirty seconds" before they started to leave
the Aileys' property, and they began walking back towards
the gate as soon as Mrs. Ailey told them to leave.
adult victim testified that, when he and his sister got
"out on top of Boatmans Ridge there right past the
gates," they heard a vehicle approaching rapidly. This
frightened the minor victim, and because she became
"hysterical[, ]" she urged her brother to hide with
her in some nearby bushes. He explained to her that there was
no reason to hide. However, she was crying, so he relented
and hid behind a tree with her. From his vantage point, the
adult victim saw the Defendant speed by in a white pickup
truck. According to the adult victim, once the Defendant was
out of sight, the victims resumed walking.
the victims got close to the residence of Timmy and Misty
Loven, which was on the right-hand side of Boatmans Ridge,
the victims intended to veer from the road and cut through a
field on the left-hand side to go home. However, the adult
victim then noticed the Defendant's truck stopped in the
road approximately 500 to 600 yards away. According to the
adult victim, they were "just right off the road"
maybe ten to twenty feet when the Defendant sped towards
them. He recognized the Defendant and told his sister that
the Defendant "probably want[ed] to talk to
[them]." When asked what he thought the Defendant wanted
to talk about, the adult victim responded that he believed
the Defendant would say not to walk on his property or talk
to the Defendant's wife.
adult victim stated that the Defendant stopped abruptly as he
neared them. The adult victim maintained that he put down the
backpack he was carrying and placed his shirt, which he had
been carrying over his shoulder, on top of it. He then pulled
his sister close to him. When the Defendant exited the truck,
he was brandishing a firearm and was "[v]ery
angry." According to the adult victim, the Defendant
announced, "I'm going to kill you[, ]" and
fired his weapon towards the victims, "blowing dirt all
over" them. The Defendant said that he was going to kill
the adult victim for speaking with the Defendant's wife.
The adult victim raised his hands in the air and pleaded,
"Hey look, I've got a kid here[, ]" to which
the Defendant replied, "I don't give a damn. You
talked to my wife." The adult victim told the Defendant,
"Look, I don't want no [sic] trouble[, ]" but
the Defendant fired the gun twice more, saying each time,
"I'm going to kill you." The adult victim said
that he sent the minor victim home after the third shot,
instructing her to "run home and don't look
back." The minor victim complied. The adult victim
explained that he "thought [he] was going to die that
day"; that he "was in fear of [his] life"; and
that, following the third shot, "[he] threw [his] hands
in front of [his] face because [he] knew it was it[.]"
After the Defendant fired at him a fourth time, the Defendant
got inside his truck, according to the adult victim. When the
adult victim asked the Defendant to identify himself, the
Defendant provided his name and said, "[Y]ou know who I
am." After the Defendant drove away, the adult victim
adult victim testified that he saw Mr. Loven out there that
day. According to the adult victim, Mr. Loven was standing in
his yard on the other side of his pickup truck and was
watching the events unfold. The adult victim described that
Mr. Loven's house was "right across from where [the
Defendant] was parked."
adult victim testified that the Defendant only got out of his
truck once, having his weapon in hand at that time, and that
the Defendant never returned to the truck before getting
inside and leaving. The adult victim also maintained that he
did not walk towards the Defendant, other than possibly
taking one step, because he "froze" when he saw the
gun. According to the adult victim, the Defendant never asked
to see his hands. Moreover, the adult victim asserted that he
was not in possession of a weapon during this encounter with
the Defendant and that he had nothing in his hands. The adult
victim also averred that he did not throw rocks at Mrs.
asked how he had been affected by this incident, the adult
victim responded, "It's affected me pretty bad. I
have missed work over it. I actually lost my job, the job I
had for three years. I had to take antidepressants, anxiety
medication. It has affected me pretty bad, and my family,
especially [the minor victim]." The victims, along with
their parents, had filed a civil lawsuit against the
Defendant seeking $500, 000.
cross-examination, the adult victim was asked,
Q. But you are a convicted felon, are you not?
A. No, I'm not.
Q. You don't have-
A. I have got a clean record.
Q. I apologize.
A. Thank you.
adult victim claimed that his medical records would confirm
the shooting's impact on him, but he had not provided
those to the State. However, he clarified that the State had
never requested those. The adult victim's preliminary
hearing testimony was read into the record and evinced some
minor discrepancies, such as when the adult victim told the
minor victim to run home, their distance off the road was
thirty feet when the Defendant sped towards them, and the
Defendant fired at him "bam, bam, bam."
minor victim also testified at the Defendant's trial and
relayed a similar version of the events as her brother. She
testified that she "was stressing out" that day, so
she wanted her brother to take her for a walk to calm her
down. According to the minor victim, whenever she and her
brother went for a long walk, they "would always go
through" the Aileys' gate. She also did not see any
"no trespassing" sign posted and believed it was a
passing through the gate, she and her brother encountered the
Aileys' dogs, which scared her because they were
"really muscular" and barking. The minor victim
said that her family had a Labrador Retriever that had
recently passed away and that she wanted to pet the dogs
"to get over her fear of them[.]" She and her
brother had gone "over to the rocks" to try and pet
the dogs when Mrs. Ailey came outside. According to the minor
victim, Mrs. Ailey started yelling at them "saying that
they had an electric fence" and that she and her brother
needed to leave. Mrs. Ailey was swearing, so they turned
around and started back towards the gate. Her brother said to
Mrs. Ailey that "she didn't have to be a b---h about
it[, ]" but that was all he said, according to the minor
victim. She further averred that her brother did not throw
anything at Mrs. Ailey that day and described her brother as
"a very nice person."
minor victim said that the entire conversation between her
brother and Mrs. Ailey was brief and that Mrs. Ailey was on
the phone when they started to leave. The minor victim
maintained that, as they were walking back down the driveway,
she started "freaking out," believing that Mrs.
Ailey was calling the police. The minor victim explained that
she "had anxiety at that point" because she
"had a lot happen in [her] life up to that
point[.]" She and her brother went "off the
roadway" and sat down because she was having a panic
attack, which, she relayed, was only her second ever attack.
A white truck "flew past," according to the victim.
The minor victim said that, about two minutes after the truck
had passed them, she and her brother got up and proceeded to
start walking back home. The minor victim testified that,
while she and her brother were subsequently speaking with
their mother by telephone, their mother "was talking
about how the white truck sped down the road and backed up in
[their] driveway and stuff[, ]" so the minor victim
"didn't know what to think at that point."
they reached their aunt and uncle's field, she and her
brother decided to cut through the field to get to their
house. The minor victim described that, at that point, the
Defendant "sped up and he stopped his truck right in
front of [them.]" She maintained that the Defendant
"jump[ed] out" of the truck with a gun and pointed
it at their heads; that the Defendant "start[ed] saying
that he [was] going to kill [them] and he started cussing
[her brother.]" She expressed that "[d]irt was
splattered all over [them]" from the shots that the
Defendant fired and that the Defendant "said I'm
going to kill you about four times." According to the
minor victim, "by the third shot," her brother
said, "I have a little girl here and [the Defendant was]
like I don't give a damn." She then reluctantly ran
home in accordance with her brother's instruction. She
believed "that was the last time [she] was going to see
[her] brother alive."
minor victim testified that her brother's hands were
empty during the altercation and that her brother "was
not angry at all[, ]" but instead "was in pure
shock." She said that the Defendant appeared
"[a]ngry" and "fuming" and that he was
not acting like "a normal person would[.]" The
minor victim averred that she "thought [she] was about
to die." When asked how she had been affected by this
incident, the minor victim responded,
I'm twelve years old, I'm on antidepressants, I have
to take a twenty milligram of an antidepressant a day and if
I don't, I start having panic attacks. Anytime I hear a
loud noise, I lose it, I completely lose control, I fall down
crying. Like one time I was at a bible school and all of a
sudden a loud pow happened, I couldn't stand up, I
couldn't do anything. I have panic attacks like not
monthly now or weekly.
further relayed that she still lived on Boatmans Ridge Road
and that, "every time [she went] to school or c[a]me
home from school," she "still ha[d] to see the
victims' mother ("Donna") testified that
they were grilling hamburgers on the evening of August 21,
2014, and that the burgers were almost ready, so she called
her son to see how far he and his sister were from home. When
Donna spoke with her son, she could hear the minor victim
"crying in the background." Donna asked what was
wrong, and her son told her that they were "hiding in
the woods." Donna replied, "Whatever is going on, .
. . get home." Shortly thereafter, Donna, who was out on
the deck, saw "a white truck go out [Buggy R]oad really
fast." A few minutes later, Donna saw "the white
truck c[o]me flying down [their] driveway almost to the
house," and then, it "backed up real fast in
reverse" and headed "out [of] the driveway."
Donna watched as the truck stopped at another neighbor's
house. According to Donna, that neighbor, Joe Whiteside, was
working on his lawn mower. Donna estimated that the Defendant
only stopped at Mr. Whiteside's for "three to five
stated that, when she spotted her children "up on the
road," she saw the white truck, almost simultaneously,
speed up "really fast" in their direction. Knowing
that "something [was] not right," Donna got the
attention of her husband and they "took off
running." As they were "over halfway up the
hill," the Defendant stopped his truck near the
children, "jumped out" with "something
shiny" in his hand, and ran "around the back of
[the truck] yelling 'I'm going to kill
you.'" Donna said that she heard the Defendant say
this three times.
testified that she started to wave her arms, jump up and
down, and repeatedly scream at the Defendant, "[P]lease
don't kill my kids." According to Donna, her
daughter and son "were standing side by side" when
she "started hearing the gunshots going off." Donna
described that she heard one gunshot and then another and
that, after those shots, she heard her son urging his sister
to run home and not "to look back." Donna stated
that her daughter "turned around . . . and was crying
and screaming" as she came running down the hill. Donna
said that her daughter ran past her into the house and that
her daughter appeared to be "totally in shock[.]"
When Donna followed her daughter inside, she watched her
daughter run in circles before shouting out, "I know
he's killed him, . . . he has shot my brother, he has
killed my brother, he's dead, I know he's dead."
When Donna tried to go after her daughter who had run out the
front door, Donna "just fell down in the floor"
crying because she believed her son was dead.
to Donna, the Defendant never went back to the truck after
exiting it; her son did not have anything in his hands during
the incident; and her son did not "approach [the
Defendant] in an aggressive way[.]" Donna also saw her
son's bag "on the ground" a short distance away
from where her son was standing, but she said that her son
never attempted to go back towards the bag.
victims' father ("Tom") also testified,
relaying a similar version of the events as his wife. Tom
said the he was on the deck cooking when his wife came and
told him that their children were hiding in the bushes and
that the Defendant "was chasing them in his truck."
Just then, Tom saw the Defendant "coming down"
their "gravel right-of-way road almost to [their]
house." Tom began "throwing [his] hands up" in
the air and walking towards the road to speak with the
Defendant. According to Tom, the Defendant turned his truck
around and "burned out."
went into the field and saw his children "at the top of
the road" and hollered at them that they needed to
"hurry up" and "get down" to the house
because "something [was] wrong with" the Defendant.
Donna moved in behind Tom at that time. Tom saw the Defendant
stop at Mr. Whiteside's house before the Defendant
"floor[ed] it" towards the children. According to
Tom, the Defendant jumped out of his truck with a gun in his
hand and screamed, "I'm going to kill you[.]"
Tom described that the Defendant pointed the gun at the
victims who were side by side and shot "one time, two
time[s], three time[s], repeatedly hollering I'm going to
kill you"; that his son told the minor victim to run;
that the Defendant shot again and "dirt flew on her and
everything"; and that the minor victim ran down the hill
"just hysterical." Tom also heard his son
"holler out can't you see there's a kid here[,
]" and the Defendant reply, "I don't give a
damn." The Defendant then got in his truck and left the
scene. Tom did not initially know if his son had been hit by
a bullet. When the altercation was over, Tom called 911.
explained that his son "had some kind of little kiddy
backpack" in his possession during the encounter, which
his son dropped on the ground when the Defendant "flew
to come down there[.]" Tom claimed that his son never
went back to the backpack. According to Tom, his son was just
standing there and never approached the Defendant
aggressively, but the Defendant "was totally out of
control and angry[.]" Tom thought that "[his] kids
were gone." When asked if the minor victim was
"having issues" from these events, Tom responded,
Sh[e] has big issues. She can't play on her swing set,
she has had trouble sleeping at night. The Aileys [have gone]
home before, she has run, fell down on the back deck thinking
they were going to come down the driveway. I have to drive
her fifty-five miles on the other side of Knoxville for
therapy, she is on medication. She is in real bad shape and
she has anxiety.
cross-examination, Tom was asked about his 911 call. Tom said
he informed the operator that the Defendant "ha[d] just
shot at [his] kids" and that they "need[ed] to get
out [t]here or something like that." Tom was asked if he
recalled telling the 911 operator that the gunshots
"might [have] been fireworks[, ]" and Tom replied
in the negative. Questioning about the 911 call continued:
Q. So if the jury were to hear a 911 call with you on it in
your voice saying you don't know what happened, there may
be fireworks somebody being fired [sic], that you are not
sure what is going on and you didn't see where [the
Defendant] went, that would be a lie, wouldn't it? Or you
would be lying now. One of them has to be a lie, correct?
A. Repeat your question.
Q. If the jury heard a 911 call-what did you tell the 911
A. To the best of my memory, [the Defendant] just shot at my
kids, . . . you all need to get out here.
Q. Are you aware of anybody telling them-do you remember
anybody telling them that it might have been fireworks?
A. Not to my knowledge.
. . . .
Q. Would it be accurate on your first impression talking to
law enforcement saying I don't know what happened, I
wasn't around, when you talked to them?
A. I don't know what happened, I wasn't around?
A. No, I didn't say that.
Q. That wouldn't [be] true?
A. Not unless they were talking about when they were out on
his right-of-way road.
Q. No, in talking about the shots being fired and why and
what happened when they were fired. You don't recall
saying I don't know what happened, I wasn't around?
A. No, I don't.
redirect examination, Tom clarified that he was "not the
caller on 911 from 1736 Boatmans Ridge who talked about
firecrackers[, ]" noting that was not his address.
sound of gunshots drew the attention of Timmy and Misty
Loven, who lived nearby. Mrs. Loven testified that, on the
day in question, she was sitting in her living room watching
television while her husband and stepson were working
"out back" on a car. Mrs. Loven went "to see
what they were doing" and saw "a white truck the
next driveway up pull in but it backed out[.]" She
described that it "went up the hill because it's
like a private drive, and then that truck went down that
private driveway and it made an immediate right going out
toward, back out toward . . . [the] road like going
out." Mrs. Loven went back inside. "[A] few minutes
later," Mrs. Loven looked outside and observed that same
white truck at the victims' home, and she maintained that
it was "just sit[ting] there" before backing up
more minutes passed before Mrs. Loven heard a gunshot and
then another, which she believed were "awful close"
to her home. Mrs. Loven looked out her window and saw the
white truck and the victims "in the field" nearby.
The next thing she observed was the minor victim running
towards her parents, and Mrs. Loven began "getting
really concerned." She then heard a third shot and went
outside. According to Mrs. Loven, the Defendant and the adult
victim were arguing, but she could not really hear what they
were saying. The Defendant then fired a fourth shot towards
the adult victim, who Mrs. Loven noticed was not wearing a
shirt and was "patting" his skin as if he believed
he had been shot. Mrs. Loven then watched the Defendant get
back in his truck and "spin off." Mrs. Loven
never saw the adult victim with anything in his hands, and it
was only after the altercation was over that she saw the
backpack lying on the ground beside a tree.
Loven testified that she ran to the adult victim, who was on
the phone with 911. While the adult victim was on the phone,
he asked her if she would "be a witness," and she
Loven also testified at trial. Mr. Loven conveyed that he was
working on his daughter's car "in the driveway
behind [his] house" when he observed a white truck pull
up the "driveway right behind [his.]" He heard
someone in the truck say, "[O]h, hell that's not
them," before the truck backed out of the driveway and
proceeded to leave. Mr. Loven continued working on his
daughter's car and later heard a gunshot. When he heard a
second shot that "seemed closer[, ]" he looked up
and walked forward "out of curiosity." He saw the
same white truck that he had seen earlier "s[i]tting in
the road and there [were] two men arguing." Mr. Loven
described his vantage point as "diagonal towards where
[the] truck was s[i]tting and where they were" arguing.
He affirmed that he had "a clear visual."
Loven said that he heard a scream and saw the minor victim
"running down the hill" saying "he's going
to kill my brother, he's going to kill my brother."
According to Mr. Loven, the men "continued to
argue," and the Defendant shot again. The Defendant
"act[ed] like he [was] going to get in this truck,"
but "he [went] back" and shot a fourth time. When
the Defendant was leaving, Mr. Loven heard the adult victim
ask "who are you anyway," to which the Defendant
responded with his name and said "you know who I
to Mr. Loven, the adult victim did not have anything in his
hands during the altercation; the adult victim never
approached the Defendant aggressively; and the adult victim
seemed "scared." Mr. Loven testified that he did
not hear the shots as going "bam, bam, bam."
Statler Collins with the Hamblen County Sheriff's
Department responded to the 911 calls. After speaking with
both victims, Detective Collins and two patrol officers drove
to the Defendant's house where they were met by the
Defendant and his wife in the driveway. The Defendant asked,
"Can I give my side of the story?" After being
Mirandized, the Defendant gave the following statement:
[The Defendant] stated that the victims . . . came on his
property and got into a verbal altercation with Mrs. Ailey.
[The Defendant] stated that [the adult victim] called his
wife a b---h and they did leave the property. He said that he
did get into his truck and go after them. He did drive up and
down the road a couple times looking for them. He did see
them and he stated that the boy put down a backpack and told
the girl to go home. He then stated that he pulled up next to
him and got out with his gun to his side. They got into a
verbal argument and [the Defendant] said that the boy had his
hand in the backpack and that is when he fired a round beside
of him. He said that the boy continued to walk toward him and
fired three more rounds in the ground beside him.
Collins returned to the victims' house and asked the
adult victim about the backpack. According to Detective
Collins, the adult victim indicated that he put the backpack
down and that nothing was in his hands when the Defendant
fired at him. Detective Collins then returned to the
Defendant's house and arrested him.
the Defendant and his wife, a Morristown school teacher of
twenty-two years, testified at trial. Mrs. Ailey stated that,
on August 21, 2014, she spotted a stranger "crouched
down in [her] yard" with a little girl at his side. Her
dogs "were going nuts," barking and jumping,
because "someone strange was in her yard." Mrs.
Ailey stated that the stranger was trying to "bait"
the dogs by "making gestures to them" and calling
them saying that he had "something" for them. Mrs.
Ailey told the stranger that the dogs could not reach him
because of an electric fence that limited how far they could
roam. She also "asked him what he was doing on [her]
property, did he not see the no trespassing signs."
According to Mrs. Ailey, the stranger did not say much in
response to her but kept calling her dogs. She testified that
she asked the man to leave, but he did not go immediately.
When she asked the stranger again to leave, he stood up and
"took about six steps" to proceed back towards the
gate, but he stopped. Mrs. Ailey requested that he leave once
more, to which the stranger replied, "You f--king
b---h," and gave "[her] the finger." Mrs.
Ailey said that the little girl started "screaming and
crying at him." The stranger and the girl then
"meandered down the road," eventually disappearing
off of her property. According to Mrs. Ailey, it took about
eight to ten minutes for them to leave.
Ailey asserted that the stranger had a "long bag on his
shoulder" and that he kept his hand in it throughout the
time he was in her yard. According to Mrs. Ailey, the bag was
not a backpack, and it "looked like a long weapon's
bag." She maintained that she felt "very
threatened" for her safety and her dogs because she
believed that the stranger had a weapon in his bag and
because she lived in a remote area with posted no trespassing
signs. Mrs. Ailey described the man as "very, very
scary," "very off balance," and "very
erratic." When asked to identify how the man's
appearance was scary, Mrs. Ailey described him as "very
sloppy[, ]" but she clarified that it was "the way
he was acting" that "really was the scary
part." Mrs. Ailey also asserted that the man's
speech was "mumbled" and incoherent, possibly
evidencing "a drug problem or something."
the stranger left, Mrs. Ailey went inside and relayed the
events to her husband. According to Mrs. Ailey, the Defendant
could see that she "was terrified" by the recent
incident. Mrs. Ailey confirmed that the Defendant then got in
his truck and left their house. When asked if her husband was
angry when he left, Mrs. Ailey, replied, "Well, he
wanted to see who was in our yard, yes . . . ." Mrs.
Ailey did not immediately call 911.
Ailey confirmed that she phoned 911 when her husband returned
home following the confrontation, and she knew that
"warning shots" had been fired at that time. She
explained that she did not call 911 right after the
Defendant's return but "waited for a few
minutes" because she "was so distraught and so
upset" that she "wanted to calm down a little
bit" before placing the call.
Ailey testified that she had lived at her home for
twenty-four years. According to Mrs. Ailey, they had been
leaving the gate to their property open for approximately one
year prior to this incident at the request of their next-door
neighbors. She asserted that she had never seen this man
walking down her driveway before and, in fact, had
"never seen a stranger in [her] yard" period. When
asked whether she was familiar with the victims or their
parents, Mrs. Ailey replied, "No, I had never heard of
those people or seen any of those people." She further
maintained that the adult victim had never requested
permission to be on her property.
sixty-year-old Defendant testified that he worked at
Burke-Ailey Construction and that he had lived at his current
residence for twenty-four years. He maintained that a no
trespassing sign was posted at his gate on August 21, 2014.
The Defendant averred that, although the gate was open that
day, it "was normally closed at that time."
According to the Defendant, it was not common for people to
walk down his driveway and that, in his twenty-four years of
living on the property, he had never seen the adult victim
Defendant stated that, after his wife came inside and told
him about the encounter, he left in his truck to find the
person who his wife claimed had threatened her and their
dogs. The Defendant indicated that he believed the man was
possibly armed because the man was not scared of calling
their two large dogs. Also, the Defendant's wife
instructed the Defendant to "be careful" as he was
leaving because the man could be armed. The Defendant
asserted that he was a "card carrying permit"
holder and that he kept a .380 in his truck's door.
According to the Defendant, his intentions in leaving were to
"go try to find out who had come on [his] property and
threatened [his] wife and [his] dogs, try to talk to
them." He claimed he "wasn't looking for a
confrontation" that he "just wanted to find out who
it was and ask them not to come back."
Defendant said that he left his house and drove past his gate
onto Boatmans Ridge Road, driving until he reached Buggy
Road, where he "back[ed] down and turned around."
While proceeding back towards his home, the Defendant pulled
into the driveway behind the Lovens' home, but he left
when he did not see anyone there. When he pulled out of that
driveway, rather than continue home, the Defendant again
drove towards Buggy Road and "back down it again."
Once back on Boatmans Ridge Road driving in the direction of
his home, the Defendant saw that Joe Whiteside's mower
"had stopped and it was on a slope, pretty steep
bank." The Defendant asked Mr. Whiteside if he
"need[ed] some help moving [his] lawn mower"
because it was getting dark, but Mr. Whiteside said no that
he would wait until the next day to move it. When Mr.
Whiteside inquired what the Defendant was doing, the
Defendant "explained to him that [he] was looking for
someone that had threatened [his wife] and the dogs."
The Defendant indicated that, at no time, was he driving
erratically, making loud noises with his vehicle, or
"spin[ning]" his tires. The Defendant also averred
that he did not "go down to" the victims' home
and that he did not "go all the way up" the
driveway behind the Lovens' house.
to the Defendant, while he "was sitting there talking
to" Mr. Whiteside, he saw the victims crossing the road
ahead and said "that may be them" and that he was
"going to go talk to them." The Defendant claimed
that he "eased off the hill and drove down and stopped[,
]" never speeding or spinning his tires as he approached
the victims. The Defendant maintained that the adult victim
"laid his shoulder bag down on the ground" and
walked "the little girl down to the corner of the
[Coxes'] house out of the way." The Defendant
claimed that, after he stopped his truck, the adult victim
started walking back towards him and "pick[ed] the bag
up, not all the way off the ground but just reach[ed] down in
the bag and then la[id] it back down." The Defendant
claimed that he did not initially have his gun when he got
out of his truck but retrieved it when the adult victim
reached into the bag, believing that the adult victim may
have gotten a weapon out of the bag. The Defendant alleged
that he "chamber[ed] a round" but held the gun at
his side as he walked around his truck to address the adult
victim. The Defendant "asked him who are you, what's
your name, why did you . . . come on my property and threaten
my family." When the adult victim refused to answer the
Defendant's questions or show his hands, the Defendant
fired two, successive warning shots "in the dirt"
towards a nearby field. The Defendant explained,
So I fired two warning shots way to the left because . . . I
didn't want a ricochet. Where we were standing was
elevated, had this slope and it was, you know, a perfect
ricochet situation. So I didn't want to fire at anybody
or hit a building or whatever so I fired into the field and
the wood line, I fired two shots.
Defendant testified that, despite the warning shots, the
adult victim did not "bat an eye" and continued
approaching him. The Defendant requested that the adult
victim stop, but when he did not comply and still would not
show his hands, the Defendant fired two more shots. The
Defendant said that he had one more round in the chamber,
which he did not want to fire because he needed it to protect
himself. According to the Defendant, after he fired the last
two warning shots, the adult victim pulled out a phone, held
it up, grinned, and said, "I've got you now."
The Defendant warned the adult victim not to return to his
property and left.
Defendant averred that the adult victim was about eight yards
away when the Defendant fired the first two warning shots;
that the adult victim was "getting pretty close"
when the Defendant fired the second two shots; that he never
told the adult victim that he was going to kill him; that, if
he intended on shooting the adult victim, he would not have
"missed four shots"; and that he never pointed the
gun at the adult victim's face. The Defendant asserted
that, while he "was upset that someone came in and
threatened [his] family," he was not "in a
rage" as they claimed. The Defendant speculated,
"[Y]ou know, if I was in a rage, why would I stop and
ask somebody if they needed help with their lawn mower. . . .
I was just trying to find out who he was and what he was
doing there." According to the Defendant, he had no
"other option at that point" but to shoot, and he
was only trying to protect himself.
cross-examination, the Defendant explained that he did not
see the minor victim again after the adult victim
"walked her down to the corner of the house[.]" The
following dialogue then took place:
Q. So the people that say they saw her running are not
telling the truth?
A. They are lying.
Q. And [the minor victim] is lying?
A. Yes, ma'am.
Defendant confirmed that, although the adult victim would not
show him his right hand, he never saw the adult victim in
possession of a weapon that evening. The Defendant averred
that he did "have a right" to ask the adult victim
to show him his hands due to the adult victim's actions
that evening. Also, when confronted with the statement he
gave to Detective Collins, the Defendant said that Detective
Collins must not have understood him because he did not get
out of his truck with his gun in hand. When asked why he did
not call 911 before he went looking for the victims, the
Defendant explained that it would have taken "a while
for them to get up there" and that he "tr[ied] to
protect his family."