State of Tennessee v. Vanassa Hurst

S
                                                                                            05/07/2021
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 17, 2021 Session

                 STATE OF TENNESSEE v. VANASSA HURST

                Appeal from the Criminal Court for Claiborne County
                   No. 2016-CR-2303 E. Shayne Sexton, Judge


                             No. E2020-00980-CCA-R3-CD


The Defendant, Vanassa Hurst, was convicted by a Claiborne County Criminal Court jury
of first degree felony murder and second degree murder. See T.C.A. §§ 39-13-202(a)(2)
(2019) (subsequently amended), 39-13-210(a)(1) (2014) (subsequently amended). The
trial court imposed a life sentence for first degree murder, ordered a sentence of nineteen
years for second degree murder, and merged the second degree murder conviction into the
first degree murder conviction. On appeal, the Defendant contends that (1) the trial court
erred in denying her motion to suppress her pretrial statements and (2) the evidence is
insufficient to support her convictions. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Timothy P. Webb (on appeal and at motion for a new trial), Duff, Tennessee; and Edward
L. Holt, Jr. (at trial), Knoxville, Tennessee, for the Appellant, Vanassa Hurst.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
General; Jared Effler, District Attorney General; Graham Wilson and Matthew McClung,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

        The Defendant’s convictions relate to the November 27, 2015 homicide of Hershel
Gulley, who died from bleeding in the brain due to a laceration injury to the vertebral
artery, which the evidence showed resulted from a violent beating. The Defendant was
indicted with other individuals but was tried separately. The State’s theory at the trial was
that the Defendant and Kayla Partin robbed the victim. The State also theorized that the
Defendant fabricated a story that the victim attempted to rape her in order to gain her uncle,
Tommy Hurst’s, assistance in fatally beating the victim in order to accomplish the robbery.
The Defendant’s theory was that she had been involved in the robbery of the victim but
that, unbeknownst to her, the victim followed her to Mr. Hurst’s house, and that Mr. Hurst
fatally assaulted the victim without the Defendant’s assistance or participation.

                             Hearing on Motion to Suppress

       The record reflects that the Defendant filed a motion to suppress her pretrial
statements, although the motion has not been included in the appellate record. At the
suppression hearing, the trial court stated that the Defendant was “asking to suppress
statements made by the defendant to law enforcement during the course of four
interviews.” Defense counsel added, “The basis of the motion . . . is that the arrest initially
was illegal.” When asked by the court if the defense theory was that “the fruit of the
poisonous tree began at the time of the arrest,” defense counsel said, “Yes, your Honor.”
We note that despite the defense’s apparent effort to suppress the evidence from four
statements, the suppression hearing evidence contained proof of one statement, which was
given at the Clairfield Fire Department in the early morning hours of November 27, 2015,
following the victim’s death.

       Tara Baird testified for the defense that in November 2015, she lived in Frakes,
Kentucky, which she said was “[p]robably three minutes” from the Tennessee/Kentucky
border. She said that around 1:00 a.m. on November 27, 2015, the Defendant, who was
Ms. Baird’s cousin, and Ms. Partin came to her house. Ms. Baird said that when the
Defendant arrived, the Defendant repeatedly said, “[I]t was real bad.” Ms. Baird said that
the Defendant later said, “[T]here was a man laying in her mamaw’s yard” and that the
Defendant eventually identified the victim by name. Ms. Baird said that the Defendant did
not state she had been dropped off at Ms. Baird’s house by the police, that the Defendant
did not state she had reported a rape, and that the Defendant stated a man was “after her.”

       Ms. Baird testified that Ms. Partin held Ms. Partin’s arm. Ms. Baird said that Ms.
Partin asked for water to drink and that while Ms. Baird got the water, Ms. Partin left. Ms.
Baird said the Defendant made telephone calls to try to find someone to help Ms. Baird
because “she [was] afraid that she was gonna bleed to death.”

       Ms. Baird testified that the Defendant stayed at Ms. Baird’s house for about one
hour and left when a uniformed, armed law enforcement officer “come and got her.” Ms.
Baird said the officer arrived in a marked police SUV and thought the officer was from
Tazewell, Tennessee. She said the SUV’s blue lights were not activated. Ms. Baird said
that the officer asked to speak to the Defendant, that Ms. Baird went outside with the
Defendant, and that the officer said he needed to take the Defendant “to her mamaw’s to
question her.” Ms. Baird said the Defendant agreed to go and left with the officer. Ms.
Baird said that the officer did not handcuff or frisk the Defendant and that he “helped guide

                                             -2-
[the Defendant] down a hill.” Ms. Baird said the Defendant sat in the backseat of the police
SUV when she left. Ms. Baird did not think the Defendant had a choice about leaving with
the officer and said his instruction to the Defendant “most likely” sounded like a command.
Ms. Baird said the officer did not tell the Defendant that the Defendant was under arrest or
that he was investigating criminal activity. Ms. Baird said her and the Defendant’s
“mamaw” lived in Tennessee.

        Claiborne County Sheriff’s Deputy Blake Laws testified that he was on duty on the
night of November 26 and 27, 2015, and that he was dispatched to Tracy Branch Road in
Clairfield regarding a reported rape. He said that he could not find the complainant at first
but eventually located the Defendant, who was walking on Tracy Branch Road. He
testified that she stated she had been picked up by a man who drove a dark Explorer SUV,
that the man drove her a short distance before pulling over and asking what she was going
to do for him for the ride, and that the man grabbed her shirt. Deputy Laws said the
Defendant stated that an altercation ensued when she tried to get away from the man, that
she sprayed him with mace, that she got out of the SUV, and that the man drove away.
Deputy Laws said the Defendant stated she did not know the man’s identity.

       Deputy Laws testified that Detective Jason Henegar arrived shortly after he talked
to the Defendant. Deputy Laws said Ms. Partin emerged from the woods with a large cut
on her forearm near her wrist. He said he called EMS, who came to the scene and bandaged
Ms. Partin’s wound.

        Deputy Laws testified that when he asked the Defendant if she knew Ms. Partin, the
Defendant “shook her head no like she didn’t know who she was and then as soon as [Ms.
Partin] came out [of the woods], she started talking to [the Defendant] asking her . . . . or
telling her that she heard everything that happened and acting like she knew . . . exactly
who she was.” When asked if the Defendant’s and Ms. Partin’s “stories” were consistent,
he said, “No.” He said that neither the Defendant nor Ms. Partin had transportation and
that he gave them a ride “maybe a mile or so from where we was at, down Tracy Branch
Road to a residence.” He said he did not see a sign indicating that he had driven out of
Tennessee and had entered Kentucky.

       Deputy Laws testified that after he dropped off the Defendant and Ms. Partin, he
responded to a call regarding an unconscious or unresponsive man lying in a yard on Tracy
Branch Road. He said that when he arrived at the address, he found the victim “laying in
the yard on his back dead.” Deputy Laws said it appeared that someone had “gone through”
the victim’s pockets. Deputy Laws said he called Detective Henegar, who arrived within
a few minutes. Deputy Laws said that Detective Henegar told him to pick up the Defendant
from the house where he had left her. Deputy Laws agreed he picked up the Defendant at
the house around 1:56 a.m. Deputy Laws said that he had no intent to arrest the Defendant
when he went to the house and that he went to get the Defendant because Detective Henegar

                                            -3-
wanted to speak with her regarding “this incident.” Deputy Laws said Detective Henegar
had information that the Defendant “had been staying at” the house where the victim was
found in the yard. Deputy Laws said that he had the Defendant sit in the back of his patrol
SUV. He said, “I always put any female in the back or – anybody in that matter in the
back.” He said he did this “to keep from allegations being made.” He acknowledged that
placing a female in the backseat was “controlling the female individual.” He did not recall
how long the Defendant remained in the SUV while he was at the scene but said he had
been there “quite some time” and that she remained in the back of the SUV until Sergeant
Henegar took the Defendant to the fire department in Clairfield for an interview. Deputy
Laws said he remained at the scene for about one hour, at which time he went to a church,
which other evidence showed was Tracy Branch Church. He said he did not participate in
the Defendant’s interview. When asked why he would have left the Defendant in the SUV
that night, he said it had been cold. He thought the Defendant had worn a jacket or “little
pullover sweatshirt.” He acknowledged that the Defendant would have been unable to
leave the SUV on her own because the SUV had “automatic locks.”

      Deputy Laws testified that in November 2015, he had worked for the Claiborne
County Sheriff’s Department for one and one-half years. He said that he was from
Harrogate, in Claiborne County, but was “[n]ot really” familiar with Clairfield, the area
where the relevant events in this case occurred. He said he knew where the
Tennessee/Kentucky border was on Highway 90 but not where it was on Tracy Branch
Road. He acknowledged that his jurisdiction as a law enforcement officer was Claiborne
County, Tennessee, and that he was not certified as a law enforcement officer in Kentucky.
He said that if he were dispatched to a call in Clairfield, the fastest route involved going
through Middlesboro, Kentucky, unless he were “down on the Campbell County[,
Tennessee] line.”

        Claiborne County Sheriff’s Detective Jason Henegar testified that he responded to
a call regarding an alleged rape on November 29, 2015.1 He agreed that when he arrived,
Deputy Laws was already there. Detective Henegar said he spoke with the Defendant, who
provided an account that did not include a rape allegation. He stated that the Defendant
said she had accepted a ride from a man in a dark-colored SUV, that he “pulled over into a
wide area,” that he asked what she was going to do in exchange for his giving her a ride,
and that she struggled with the man. Detective Henegar stated that the Defendant said her
shirt was stretched in the struggle, that she punched and kicked the man, that she sprayed
the man with mace, and that she got out of the SUV.

      Detective Henegar testified that Ms. Partin came out of the woods, was “falling
down in the road,” and had a cut on her hand. He said Ms. Partin tried to speak but that


1
    Other evidence shows that the call was received on the night of November 26 and 27, 2015.

                                                         -4-
the Defendant tried to talk over Ms. Partin and seemed not to want Ms. Partin to speak. He
said Ms. Partin acted as if she and the Defendant had been together but that the Defendant
“was saying that she hadn’t seen [Ms. Partin], asking where she came from.” He said the
Defendant’s and Ms. Partin’s stories were inconsistent and “very suspicious.”

       Detective Henegar testified that after he left the scene, he drove on Tracy Branch
Road looking for the dark SUV the Defendant had reported but did not find it. He said that
after he reached Highway 90, he received a second dispatch call regarding a fight or
disturbance in front of a house on Tracy Branch Road. He said that when he arrived at the
house, Deputy Laws was present and that the body of a deceased man lay in the yard at the
front corner of the house. Detective Henegar said that he spoke to Tommy Hurst, who was
on the porch, and that Mr. Hurst’s mother, Mr. Hurst’s grandmother, and a man were inside
the house.

        Detective Henegar testified that he told Deputy Laws to return to the location where
Deputy Laws had dropped off the Defendant and to pick her up. Detective Henegar said
he thought the deceased person in the yard was connected to the Defendant. He noted the
suspicious nature of the Defendant’s and Ms. Partin’s stories, information Mr. Hurst
provided about the Defendant’s being Mr. Hurst’s niece, and information from Mr. Hurst
that the Defendant had been staying at the house but had not been there for two to three
days. Detective Henegar agreed that no basis existed to charge the Defendant with a crime
at the time Deputy Laws picked her up.

        Detective Henegar testified that after Deputy Laws returned with the Defendant, she
sat in the backseat of a police SUV for at least forty-five minutes and “quite possibly
longer” while he assisted other officers “with the scene.” Detective Henegar said he did
not think of getting the Defendant out of Deputy Laws’ police SUV because he was “busy
with the scene” and because it was cold. He said that he went to the fire department in
Clairfield and was present when Captain Honeycutt conducted the Defendant’s first
interview. Detective Henegar was unsure but thought he was the officer who took the
Defendant to the fire department. He thought that Captain Honeycutt advised the
Defendant of her Miranda rights and that “the original alleged rape call” was discussed.
Detective Henegar did not recall the details of the interview. When asked about the number
of doors the room had, he recalled it had one door. He recalled that he sat on a couch and
thought the Defendant and Captain Honeycutt sat in chairs at a table. Detective Henegar
did not recall whether the Defendant was handcuffed or stood and moved around during
the interview. He thought she was given the opportunity to smoke a cigarette. He did not
recall the Defendant’s leaving the fire department after the statement and said he thought
he “may have left the fire department first.” He thought the Defendant was not charged
with a crime until a couple of days after the interview at the fire department.



                                            -5-
        After receiving the evidence, the trial court found that although a detention
occurred, it was not unlawful. The court noted that “no real claim of an arrest” had been
made. The court noted that, although the Defendant’s having to sit in the back of the SUV
may have been an “inconvenience,” there had been no showing that the Defendant
“protested or made some aversion” to the situation. The court took judicial notice of the
geographic area involved and found that “bringing in a Kentucky officer . . . might be good,
it’s gonna be hard, and . . . some of these are time sensitive moves made by law
enforcement[.]” Thus, the court denied the motion to suppress, stating, “I find that there is
no basis to suppress anything beyond the detaining of the defendant going all the way out
I think what law enforcement did was proper, and . . . these items will come into proof.”

                                           Trial

       At the trial, Carrie Fuson testified that the Defendant came to her house on
Thanksgiving night, 2015, around 11:00 or 11:30 p.m., stated she “had almost been raped,
and asked to come inside and to use Ms. Fuson’s telephone. Ms. Fuson described the
Defendant as not appearing “put together, . . . kind of frantic, yelling, wanting to come in,
wanting to use the phone.” Ms. Fuson said the Defendant did not appear to be injured or
have blood or bruises on her. Ms. Fuson said the Defendant “was pulling at [the
Defendant’s] shirt” but that the shirt did not appear to be ripped. Ms. Fuson said she did
not allow the Defendant to come inside but that she allowed the Defendant to wait on the
porch. Ms. Fuson said she called 9-1-1 to report the Defendant’s attempted rape allegation.
Ms. Fuson said she saw another person outside who appeared to be female but that it was
dark. Ms. Fuson said she heard a man’s voice but did not see a man. Ms. Fuson indicated
the location of her house on a map, and the map was received as an exhibit. She indicated
the location of Tracy Branch Church on the map and said the church was about a thirty-
second drive from her house. Ms. Fuson said that when the Defendant left Ms. Fuson’s
house, the Defendant traveled in the opposite direction of the church and of the
Kentucky/Tennessee border.

       Claiborne County Sheriff’s Detective Jason Henegar testified that on November 26
and 27, 2015, he was on duty as a patrol sergeant when he responded to a call involving
the Defendant around 11:00 p.m. on November 26 or 12:00 a.m. on November 27. He said
that when he arrived on Tracy Branch Road, he saw the Defendant talking to Deputy Blake
Laws. Detective Henegar said the Defendant reported that she had been involved in a
physical struggle with a man driving a dark, possibly black SUV who had given her a ride
and asked “what she was gonna give him for giving her a ride.” Detective Henegar said
the Defendant claimed to have kicked, punched, and sprayed the man with mace after he
grabbed the front of her shirt. Detective Henegar said that he saw no injuries, blood, mud,
or grass stains, but that the Defendant’s shirt was “stretched out and down” and possibly
was torn.


                                            -6-
        Detective Henegar testified that as he talked to the Defendant with Deputy Laws
and two EMS workers, he heard a female voice yelling behind him. He said that,
eventually, Kayla Partin emerged from a wooded area. Detective Henegar said that the
Defendant “initially acted confused about who [Ms. Partin] was.” He said that Ms. Partin
acted as if she knew the Defendant, that Ms. Partin attempted to have a conversation with
the Defendant “about something that had happened prior to our contact with them,” and
that the Defendant seemed not to want Ms. Partin to talk. He said the women “eventually
began talking about knowing each other, but it took a little while.” He said he concluded
that the women knew each other and had “probably been together involved in something
prior to our contact with them.” Detective Henegar said Ms. Partin had a bloody cut on
one of her hands.

       Detective Henegar testified that the Defendant did not allege that she had been raped
but reported the man in the SUV made advances toward her, which led to the physical
altercation. He described the Defendant as “fairly calm.” He said he determined the rape
allegation was not credible. Detective Henegar said he told Deputy Laws to complete an
incident report regarding the Defendant’s allegations and to transport the Defendant and
Ms. Partin “wherever . . . they chose to go to.”

       Detective Henegar testified that he left the scene on Tracy Branch Road and that
after he had driven a few miles, he received a call regarding an unresponsive man found in
a yard on Tracy Branch Road. He said he suspected a connection between the earlier call
involving the Defendant and the second call because “the story that we got from [the
Defendant] and Ms. Partin just wasn’t making any sense.” He noted that the two calls
related to proximate locations and were received within a short period of time.

        Detective Henegar testified that he returned to Tracy Branch Road and that he found
Deputy Laws at a scene where a body lay near the porch of Tommy Hurst’s house.
Detective Henegar identified a photograph of the body, and the photograph was received
as an exhibit. Detective Henegar said he spoke with Mr. Hurst and learned that other
individuals were inside the house. Detective Henegar said Mr. Hurst stated that he was the
Defendant’s uncle, that she had been staying at his house “not the previous night but prior
to that,” that Mr. Hurst heard noise outside, that Mr. Hurst went to a door and turned on a
porch light, and that Mr. Hurst saw three women and two or three men kicking the victim
and going through the victim’s pockets. Detective Henegar said Mr. Hurst stated that when
Mr. Hurst made his presence known, the people ran in different directions. Detective
Henegar said he secured the scene and called for investigators to respond. He said he
suspected the Defendant and Ms. Partin were somehow connected to the body and that he
told Deputy Laws to return to the house where Deputy Laws had dropped off the Defendant
and Ms. Partin and to bring them to the scene. Detective Hurst said that Mr. Hurst’s house
and the location on Tracy Branch Road where he had spoken with the Defendant and Ms.
Partin were close and within walking distance of one another.

                                            -7-
      Detective Henegar testified that Deputy Laws later returned to the scene with the
Defendant but that Ms. Partin was no longer at the house. Detective Henegar agreed that
he was present when Detective Honeycutt advised the Defendant of her Miranda rights at
4:14 a.m. and interviewed her. Detective Henegar identified the Defendant’s written
waiver of her Miranda rights, which was received as an exhibit.

       Detective Henegar identified footage from the scene which was recorded by his
body camera, and the recording was received as an exhibit and played for the jury. The
recording was consistent with Detective Henegar’s testimony about the initial call to Tracy
Branch Road. Regarding a portion of the recording in which Ms. Partin stated that she had
been worried because the Defendant “left with that crazy a-- drunk,” Detective Henegar
said Ms. Partin’s statement had been inconsistent with the Defendant’s account of events.

       Claiborne County Sheriff’s Deputy Carl Monzingo testified that he had been
acquainted with the victim before the victim’s death and that the victim limped, walked
slowly, and had limited use of his left hand and left arm. Deputy Monzingo said the
victim’s impairments were consistent with those a person might experience from a stroke.
Deputy Monzingo identified a photograph of the victim taken before the victim’s death,
and the photograph was received as an exhibit.

        Deputy Monzingo testified that he arrived at Mr. Hurst’s house around 1:30 or 2:00
a.m. He said that he had not known “about the prior interaction of [the Defendant] and
[Ms. Partin] earlier in the night” but that he had known that Mr. Hurst and the Defendant
were related. Deputy Monzingo said he was notified that a vehicle had been found at Tracy
Branch Church, that he went to the church, and that he recognized the vehicle as belonging
to the victim. Deputy Monzingo agreed that the church was in Kentucky.

       Tara Baird, the Defendant’s cousin and Mr. Hurst’s daughter, testified that she lived
in Hatfield Gap, Kentucky, which she said was about four miles from Clairfield, Tennessee.
Ms. Baird said that she had been at a Thanksgiving dinner at her “mamaw’s” in Clairfield
on November 26, 2015, which she said the Defendant had attended and had left around
7:00 p.m. Ms. Baird said she and unidentified others tried to “keep [the Defendant] home”
because they “[knew] what she was going to do” but that the Defendant left anyway. Ms.
Baird said the Defendant came to Ms. Baird’s door around 1:00 a.m. on November 27. Ms.
Baird said that Ms. Partin was with the Defendant, that the Defendant stated, “It was real
bad,” and that Ms. Baird did not understand what had happened. Ms. Baird said that the
Defendant’s shirt was torn, that the Defendant’s bra was visible, and that Ms. Baird gave
the Defendant another shirt to wear. Ms. Baird said the Defendant had worn tan cloth shoes
with light, bendable rubber soles. Ms. Baird said the Defendant’s shoes and pants legs
were muddy. Ms. Baird did not see blood on the Defendant.


                                            -8-
        Ms. Baird testified that the Defendant “first acted like someone was after her,” that
the Defendant stated a man had tried to pull her into a vehicle. Ms. Baird said her husband
went outside to see if he could find anyone outside. Ms. Baird said the Defendant made
telephone calls to Ms. Partin’s father and Chris Daniels because the Defendant was
concerned Ms. Partin “was gonna bleed to death” from a cut on Ms. Partin’s arm. Ms.
Baird said that the Defendant said she had been waiting on Ms. Partin’s father to meet her
but that he had not shown up and that Ms. Partin had planned to promise the victim oral
sex in exchange for drugs. Ms. Baird said that the Defendant stated that while Ms. Partin
“was doing that,” the victim grabbed the Defendant and asked what she was going to do
and that the Defendant and Ms. Partin “kind of just got the idea just to beat him up and rob
him.” Ms. Baird said the Defendant claimed she and Ms. Partin had planned to exchange
sexual favors for drugs and “just decided all of a sudden” to rob and assault the victim.
Ms. Baird said the Defendant stated she and Ms. Partin took the victim’s cell phone, keys,
and wallet. Ms. Baird said the Defendant showed her the keys and said they were the
victim’s. Ms. Baird said the Defendant stated that she kicked the victim and “done the
final blow.” Ms. Baird said the Defendant stated she had discarded a pink jacket near the
scene. Ms. Baird said that the Defendant asked for water and that when Ms. Baird returned
with the water, Ms. Partin was gone.

       Ms. Baird testified that at some point, the Defendant told her “there was a dead man
out there.” Ms. Baird said the Defendant stated she had reported to 9-1-1 that the Defendant
had been raped. Ms. Baird said the Defendant claimed she had fabricated this story based
upon an alleged rape which occurred one year earlier. Ms. Baird said the Defendant stated
of the prior rape that it “was all just a lie.”

       Ms. Baird testified that after the Defendant left Ms. Baird’s house, Ms. Baird had
her husband provide law enforcement with the Defendant’s shirt and the keys the
Defendant had identified as the victim’s, both of which the Defendant had left at Ms.
Baird’s house.

        Claiborne County Sheriff’s Detective Bradley Duncan testified that he was the lead
detective in the victim’s homicide. He photographed the scene and collected evidence. He
identified photographs of Mr. Hurst’s house and of the victim’s body on the yard, and the
photographs were received as exhibits. Detective Duncan said the victim’s face showed
obvious trauma. Detective Duncan said the victim lay face up with his feet three to five
feet from the base of a wheelchair ramp outside the house. Detective Duncan said the
ground near the body was damp, that a bath towel was near the victim’s head, and that an
open condom wrapper with a partially removed condom lay a short distance from the
victim’s left shoulder. Detective Duncan said that he did not note any signs of a struggle
but that some blood was “around the body in the grass” and near the condom wrapper.
Detective Duncan identified the condom wrapper, which was received as an exhibit. He
said DNA analysis of the wrapper later showed the presence of DNA profiles of the victim

                                            -9-
and Ms. Partin. He identified a pink jacket that was found “at a garage on Tracy Branch
Road.” He estimated that the garage was possibly “a few tenths of a mile” from the
homicide scene. He said the jacket contained a car title for a four-door 2001 Chevrolet that
had been assigned from Myrtle May Lay to the Defendant. The title was received as an
exhibit. Detective Duncan agreed that the Defendant stated in the recording from Detective
Henegar’s body camera that she had worn a pink jacket.

        Detective Duncan identified a photograph of the rear of the victim’s Ford Explorer
at Tracy Branch Church, and the photograph was received as an exhibit. Detective Duncan
said handprints were visible on the victim’s SUV, a tail light was broken, and items that
appeared to be from the SUV were scattered in the church’s parking lot. He noted that
pieces from the broken tail light sat on the bumper and on the ground. He said other officers
recovered an envelope containing methamphetamine from the parking lot. He said that a
pair of mangled wire-framed glasses were found in the parking lot close to the rear
passenger-side door and that another officer who was familiar with the victim identified
the glasses as being consistent with those worn by the victim. The glasses and a detached
lens were received as exhibits. He said a second pair of glasses was found in grass “on the
far side” of the SUV and that although he was not certain, he believed these glasses
belonged to Ms. Partin. He said that a floor mat was found underneath the SUV and that
it was consistent with the other mats inside the SUV. He said the mat contained a substance
that testing later showed was the victim’s blood. The floor mat was received as an exhibit.
Detective Duncan said a credit card with the victim’s name was found in the parking lot in
front of the SUV. A photograph of the credit card at the scene and the credit card were
received as exhibits. Detective Duncan said a condom wrapper was found at the edge of
the grass toward the front of the SUV. The wrapper was received as an exhibit.

       Detective Duncan testified that at 5:40 a.m. on November 27, 2015, Ms. Baird’s
husband, Dean Baird, arrived at the scene with a trash bag containing keys that were later
used to move the SUV to the county garage for processing, and the Defendant’s purple
shirt. Detective Duncan said the shirt was consistent with the shirt the Defendant wore in
the video footage from the body camera. The shirt was received as an exhibit. Detective
Duncan said the keys and the SUV were released to the victim’s family after the SUV was
processed for evidence. Detective Duncan identified a photograph of the driver’s side rear
passenger floorboard of the SUV, which showed a Bud Light beer bottle. He said a
fingerprint on the bottle was determined to be from the Defendant’s right index finger. The
bottle was received as an exhibit. Detective Duncan said that a beach towel was recovered
from the SUV and that testing later revealed the presence of the victim’s blood but no
evidence of capsaicin, an irritant used in mace and pepper spray. Detective Duncan
acknowledged that the church where the SUV was found was in Kentucky and that no
Kentucky law enforcement officials were involved in the investigation at the church.



                                            -10-
        Detective Duncan testified that he was present for the statement the Defendant gave
on November 27, 2015, at around “5:30.”2 He said he prepared a written statement based
upon what she told him and that she signed the statement. He identified the statement,
which was received as an exhibit and read to the jury. In the statement, the Defendant said
the following: She rode to the church on Tracy Branch Road the previous night with the
victim, “B.J.,” and Ms. Partin. “Megan, Adam and Michael were also there in a black
Camaro.” At some point, Ms. Partin sprayed the victim with pepper spray. B.J. dragged
the victim out of the SUV, and the Defendant hit the victim “no more than twice” with a
beer bottle. Adam, Megan, and Michael left, and the Defendant left on foot. The
Defendant went to a house and asked them to call her “mamaw” and the police because she
and a friend were in trouble. She thought she left this house and went to Mr. Hurst’s house.
She told Mr. Hurst that the victim had tried to rip off her clothes. She said she made this
statement “out of spite” because the victim “laid his hands on” her. Ms. Partin said the
victim was pursuing them. The Defendant thought the victim wanted his wallet and keys.
The Defendant said either she or Mr. Hurst killed the victim. She stated she kicked him in
the chest and hit the victim’s back with a mop stick. She said Mr. Hurst tackled the victim
and kicked the victim’s legs and thighs.

       Detective Duncan testified that the police obtained a search warrant for Mr. Hurst’s
house and that they recovered the mop and a pair of size 12 “Doctor Martin” boots that
belonged to Mr. Hurst. Detective Duncan said the shoes had been found outside the house
in woods “within throwing distance,” or about twenty-five to thirty yards from the house.
Detective Duncan said the shoes were recovered after Mr. Hurst identified their location.
Detective Duncan said that no fingerprints were recovered from the mop and that no human
blood was found on the boots.

       Detective Duncan testified that DNA samples were collected from Mr. Hurst, the
Defendant, Ms. Partin, and Brandon Partin. Detective Duncan said a DNA sample was
collected from the victim at the forensic center. The DNA samples from these individuals
were received as exhibits. A timeline of events for November 26 and 27, 2015, was
received as an exhibit. Photographs of the victim’s face taken at the scene were received
as exhibits. Detective Duncan said the victim’s wallet was never recovered in the
investigation.

       Tennessee Bureau of Investigation (TBI) Special Agent Forensic Scientist Charly
Castelbuono, a forensic biology expert, testified that she analyzed a car floor mat and a
towel that were collected as evidence and submitted to the TBI Laboratory. She said each
item contained a DNA profile that matched the victim. She said a second DNA profile
from the towel was inconclusive. Referring to the condom and wrapper collected near the


2
  Detective Duncan did not specify whether the statement was taken at 5:30 a.m. or 5:30 p.m. The written statement
reflects that it was signed by the Defendant and Detective Duncan at “5:30 p.”
                                                      -11-
victim’s body, she said her analysis showed a mixture of DNA from the victim and Ms.
Partin on the wrapper.

       Federal Bureau of Investigation employee Cody Rowlett, an expert in latent
fingerprint examination, testified that he had been employed previously by the TBI as a
special agent forensic scientist. He said that during his employment with the TBI
Laboratory, he tested items related to this case. His report was received as an exhibit.
Regarding the beer bottle recovered from the victim’s SUV, Mr. Rowlett said he identified
a latent fingerprint on the bottle as being that of the Defendant’s right index finger. He
said other items he examined did not contain identifiable latent prints.

       Darinka Mileusnic-Polchan, M.D., an expert in forensic pathology, testified that she
performed the autopsy. She said that injuries to the victim’s head and neck caused his
death and agreed he suffered at least thirty-seven blows to his body. She said the cause of
death was subarachnoid hemorrhage due to a vertebral artery laceration.

        Dr. Mileusnic-Polchan testified that the victim had been 66″ tall and had weighed
184 pounds. She noted blood on his clothing, particularly on his sweatshirt and hood near
the head and neck area. She said most of his injuries, including the most severe, were in
his head and neck area. She identified thirty-seven injuries, fourteen of which were in the
head and neck area. She noted pattern bruising that was consistent with trauma from an
object, with the injury being about one and one-half inches in size. She said the contusions
of this nature could have been inflicted with an elongated object or from heavy blunt force
trauma. She noted a laceration and other injuries that were consistent with blunt force
trauma. She said the victim’s jaw, orbital bone, skull, arm, thumb, five ribs, and two
cervical vertebrae were fractured. She noted a significant hemorrhage of the brain. She
noted a laceration of the “ear fin,” which she said was consistent with a high velocity
impact from a relatively heavy object. She said his hyoid bone in his neck was fractured
and he had a line or ribbon of bruising around his neck. She identified areas of the head
and neck which sustained at least fourteen blows. She noted the presence of injuries to the
neck that were consistent with impact and strangulation or use of a choke hold. She saw
signs of direct trauma to both sides of the head. She noted evidence the victim had been
hit or had fallen, causing injury to the back of the head. She said the victim had several
additional areas of bruising on his back, chest, arms, and legs. She noted at least six injuries
which were consistent with defensive wounds. She identified photographs of the victim’s
body taken during the autopsy and explained what they depicted.

        Dr. Mileusnic-Polchan testified that the victim would not have been able to stand
after the cervical vertebrae fractures occurred or after the injury to the vertebral artery. She
said that if the victim had been hit with a beer bottle from a distance of one-half or sixth-
tenths of one mile from where the body was found, he would have still been able to walk.
When shown the boots previously identified as belonging to Mr. Hurst and asked about

                                             -12-
them as having been involved in the infliction of the victim’s injuries, she said she would
not necessarily expect to find blood on the boots if they had been used to inflict a single
kick but that she would expect blood if the boots had been used to inflict multiple kicks,
especially if they had been used to inflict the blows that broke the orbital bone and caused
the vertebral artery laceration. She said the vertebral artery laceration was consistent with
a sudden hyperextension and twisting of the neck and was consistent with the victim’s
having been on the ground and having been kicked from the side.

       Tommy Hurst testified for the defense that his niece, the Defendant, came to his
house on Thanksgiving night 2015. He said his mother, his grandmother, and his
grandmother’s boyfriend were also at his house. When asked if anyone else came to his
house that night, Mr. Hurst invoked his Fifth Amendment privilege.

        Detective Duncan was recalled and testified that he and Officer Gary Ruszkowski
interviewed Mr. Hurst, who waived his Miranda rights and provided a statement. The
written statement, which was dated November 27, 2015, was received as an exhibit.
Detective Duncan read the statement to the jury. In the statement, Mr. Hurst said the
following: On the previous night around midnight or 1:00 a.m., he was awakened by the
Defendant’s beating on his window and screaming. He said he could tell she was scared.
He said that he unlocked the door, that the Defendant ran inside, and that she screamed,
“[H]e raped me, he raped me.” Mr. Hurst said the Defendant held a set of keys and stated
she had taken them “so he couldn’t drive away.” Mr. Hurst said he grabbed a jacket and
opened the door to a man, whose forehead Mr. Hurst hit with his fist while Mr. Hurst thrust
forward with his legs, causing the man to fly backwards. Mr. Hurst said that the man tried
to get up and that Mr. Hurst began kicking the man because he thought about what the
Defendant had said. Mr. Hurst said the Defendant and Ms. Partin also kicked the man. Mr.
Hurst said, “The whole thing lasted five or six minutes until I caught myself when I realized
they were going through his pockets. They got his billfold out of his pocket.” Mr. Hurst
said that during the assault, the Defendant hit the man with a broomstick. Mr. Hurst said
he told the Defendant to stop because the man had “had enough.” Mr. Hurst said he asked
the Defendant and Ms. Partin “what was going on,” that they did not respond, and that he
realized the Defendant and Ms. Partin “played” him and that the Defendant had lied about
the alleged rape. Mr. Hurst said that when he realized the women had “used” him to rob
the man, he called the police. Mr. Hurst said he did not know the man’s name.

       After receiving the evidence, the jury found the Defendant guilty of first degree
felony murder and second degree murder. The trial court imposed a life sentence for first
degree murder. At a subsequent sentencing hearing, the court imposed a sentence of
nineteen years for second degree murder and merged the conviction with the first degree
murder conviction. This appeal followed.



                                            -13-
                                               I

                               Denial of Motion to Suppress

        The Defendant contends that the trial court erred in denying her motion to suppress
her pretrial statements made “during the course of several interviews” on the basis that she
had been unlawfully seized in Kentucky before she gave the statements. The State
contends that the Defendant has waived our consideration of this issue by failing to provide
an adequate appellate record. The State contends, alternatively, that the Defendant is not
entitled to relief because she failed to present any proof at the suppression hearing relative
to the taking of her statement that was admitted at the trial.

       Relative to the State’s waiver argument, the Defendant, as the appellant, has the
burden of preparing a fair, accurate, and complete account of what transpired in the trial
court relative to the issues raised on appeal. See State v. Bunch, 

646 S.W.2d 158

, 160
(Tenn. 1983). “When the record is incomplete, or does not contain the proceedings relevant
to an issue, this [c]ourt is precluded from considering the issue.” State v. Miller, 

737
S.W.2d 556

, 558 (Tenn. Crim. App. 1987). Likewise, “this [c]ourt must conclusively
presume that the ruling of the trial court was correct in all particulars.”

Id. (citing State v.

Jones, 

623 S.W.2d 129

, 131 (Tenn. Crim. App. 1981); State v. Baron, 

659 S.W.2d 811

,
815 (Tenn. Crim. App. 1983); State v. Taylor, 

669 S.W.2d 694

, 699 (Tenn. Crim. App.
1983)); see State v. Ivy, 

868 S.W.2d 724

, 728 (Tenn. Crim. App. 1993).

        Thus, we begin with a review of what the record does and does not contain. The
record does not contain the motion to suppress. As we have stated, the trial court noted at
the beginning of the suppression hearing that the Defendant’s motion pertained to four
statements she gave to law enforcement. The transcript of the suppression hearing reflects
that the defense theorized that the statements were the “fruit of the poisonous tree” because
they occurred after the Defendant was unlawfully seized by Deputy Laws when he went to
Ms. Baird’s house in Kentucky, brought the Defendant to Tennessee in a locked patrol
SUV, and held her at Mr. Hurst’s house until she was eventually interviewed. The evidence
at the suppression hearing contained proof of a single statement – the one given to Captain
Honeycutt in the presence of Deputy Henegar at the Clairfield Fire Department in the early
morning hours of November 27, 2015. Deputy Henegar testified at the trial that he thought
he was present when Captain Honeycutt advised the Defendant of her Miranda rights, and
a written acknowledgment of those rights was received as an exhibit. The document
reflects the following date and time notation: “11/26/15 4:14AM.” We note that the
relevant events are alleged to have occurred in the evening hours of November 26 and early
morning hours of November 27, 2015, and based upon other evidence, we conclude that
the document was erroneously dated November 26 and that the correct date was November
27. However, this statement was not admitted as evidence at the trial. Rather, the
Defendant’s statement given to Deputy Duncan at 5:30 p.m. on November 27 was received

                                             -14-
as trial evidence. The 5:30 p.m. statement does not identify the location at which it was
taken, and it is signed by Detective Duncan and the Defendant. The record does not contain
evidence regarding the contents of any additional statements the Defendant may have given
following Deputy Laws’s retrieval of the Defendant at Ms. Baird’s house. A timeline of
events was introduced at the trial during Detective Duncan’s testimony, but it has not been
included in the appellate record.

        Notwithstanding the absence of the motion to suppress from the record, we conclude
that the record is sufficient for us to review the issue based upon the trial judge’s recitation
of the basis for the motion, the evidence offered at the suppression hearing and the trial,
and the statement which was admitted at the trial. Because the 5:30 p.m. statement was
the only one admitted at the trial, our review is limited to the question of whether the trial
court should have suppressed this statement.

       The Defendant argues in her brief, “[A]t the moment the detention of [the
Defendant] started – while inside the sovereign boundary of the Commonwealth of
Kentucky – it continued until arraignment in Criminal Court and setting of a reasonable
bond, almost six months later.” The Defendant has not provided a citation to the record to
support her factual assertion that she was in continuous custody from the time Deputy Laws
picked her up around 1:56 a.m. on November 27, 2015, until she gave the 5:30 p.m.
statement later that day, which was her only statement admitted at the trial. Defense
counsel stated at oral argument that the Defendant gave a series of statements at the fire
department and was eventually transported to the Claiborne County Jail, where she was
held for a few days, at which time an arrest warrant was issued. The record reflects that
the Defendant was arrested by Detective Duncan on November 27, 2015, at 11:00 p.m.,
which was after the 5:30 p.m. statement, and that the arrest warrant was signed by a judge
on November 30, 2015. However, the record does not contain evidence to support the
factual assertion that the Defendant remained at the fire department after being transported
there and gave multiple statements there before she was transported to the jail.

       At oral argument, defense counsel focused on the Defendant’s statement given to
Captain Honeycutt “around 4:15 in the morning, two hours after she was illegally
detained.” As we have noted, this statement was not admitted at the trial. Counsel argued,
as well, that the Defendant was in continuous custody from the time Deputy Laws picked
her up at Ms. Baird’s house until she was released on bond months later. Again, the record
does not contain evidence to support this assertion. Rather, it is silent as to the Defendant’s
custodial status between the November 27, 2015 early morning statement and the statement
given later that day, at 5:30 p.m.

       Although the record reflects that the Defendant’s suppression motion concerned
four statements, she presented no evidence whatsoever regarding the circumstances
attending the three statements other than the one given to Detective Honeycutt around 4:16

                                             -15-
a.m. on November 27. This omission includes a lack of evidence regarding the 5:30 p.m.
statement which was admitted at the trial. The record before this court likewise contains
no evidence regarding the Defendant’s whereabouts and any events which transpired
between the 4:16 a.m. statement and the 5:30 p.m. statement. Arguments and recitations
of fact by counsel are not evidence. See, e.g., State v. Roberts, 

755 S.W.2d 833

, 836 (Tenn.
Crim. App. 1988).

        A defendant bears the burden of showing that she was in custody for Miranda
purposes as a predicate to the State’s burden to establish that a defendant’s statement was
freely and voluntarily made. See State v. Joseph Moran, --- S.W.3d ---, No. W2019-00837-
CCA-R3-CD, 

2020 WL 6375446

, at *6 (Tenn. Crim. App. Oct. 29, 2020), perm. app.
denied (Tenn. Mar. 23, 2021). As applied to the facts of the present case, the record fails
to reflect that the Defendant offered any evidence in the proceedings in the trial court
regarding her custodial status at the time she made the 5:30 p.m. statement. The Defendant
has not shown that the trial court erred in denying the motion to suppress the 5:30 p.m.
statement.

                                             II

                               Sufficiency of the Evidence

        The Defendant contends that the evidence is insufficient to support her convictions
of first degree felony murder and second degree murder. In determining the sufficiency of
the evidence, the standard of review is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 

443 U.S. 307

, 319
(1979); see State v. Vasques, 

221 S.W.3d 514

, 521 (Tenn. 2007). The State is “afforded
the strongest legitimate view of the evidence and all reasonable inferences” from that
evidence. 

Vasques, 221 S.W.3d at 521

. The appellate courts do not “reweigh or reevaluate
the evidence,” and questions regarding “the credibility of witnesses [and] the weight and
value to be given the evidence . . . are resolved by the trier of fact.” State v. Bland, 

958
S.W.2d 651

, 659 (Tenn. 1997); see State v. Sheffield, 

676 S.W.2d 542

, 547 (Tenn. 1984).

        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 

976 S.W.2d 121

, 140 (Tenn. 1998); see State v.
Sutton, 

166 S.W.3d 686

, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’“ State v. Dorantes, 

331
S.W.3d 370

, 379 (Tenn. 2011) (quoting State v. Hanson, 

279 S.W.3d 265

, 275 (Tenn.
2009)).

   A. First Degree Felony Murder


                                           -16-
       The Defendant was convicted of first degree felony murder committed in the
perpetration of robbery. First degree felony murder is a “killing of another committed in
the perpetration of or attempt to perpetrate . . . robbery[.]” T.C.A. § 39-13-202(a)(2)
(2018). “Robbery is the intentional or knowing theft of property from the person of another
by violence or putting the person in fear.”

Id. § 39-13-401 (2018).

“A person commits
theft of property if, with intent to deprive the owner of property, the person knowingly
obtains or exercises control over the property without the owner’s effective consent.”

Id.
§ 39-14-103(a) (2018).

        “Knowing” means that a person acts knowingly with respect to the conduct
       or to circumstances surrounding the conduct when the person is aware of the
       nature of the conduct or that the circumstances exist. A person acts
       knowingly with respect to a result of the person’s conduct when the person
       is aware that the conduct is reasonably certain to cause the result[.]

§ 39-11-106(a)(20), (22) (2014) (subsequently amended).

        Viewed in the light most favorable to the State, the evidence shows that the
Defendant concocted a story about the victim’s having attempted to rape her, which she
told to Mr. Hurst. When the victim appeared at Mr. Hurst’s house in Tennessee, Mr. Hurst,
Ms. Partin, and the Defendant violently assaulted the victim. Mr. Hurst testified that he
realized the Defendant had concocted the attempted rape allegation in order to deceive him
into participating in the assault. Mr. Hurst said that Ms. Partin and the Defendant went
through the victim’s pockets during the assault at Mr. Hurst’s house and that the women
took the victim’s wallet. After participating in the killing, the Defendant repeated the false
allegation of an attempted sexual assault to Ms. Fuson in order to convince Ms. Fuson to
call 9-1-1, and the Defendant repeated the allegation again when she encountered law
enforcement officers. After Deputy Laws took the Defendant and Ms. Partin to Ms. Baird’s
house, the Defendant confessed to Ms. Baird that the Defendant and Ms. Partin planned to
exchange sex for drugs with the victim but that they “all of a sudden” decided to rob and
assault the victim. The Defendant told Ms. Baird that the Defendant and Ms. Partin took
the victim’s cell phone, keys, and wallet. The Defendant showed a set of keys to Ms. Baird
and left them at Ms. Baird’s house. The Defendant told Ms. Baird that the Defendant “done
the final blow” and that a dead man was “out there.” Ms. Baird’s husband later took the
keys to the police, who used them to move the victim’s SUV. The Defendant admitted in
her statement to Detective Duncan that she participated in the robbery and killing. From
this evidence, a rational jury could conclude that the Defendant took the wallet from the
victim by violence during the assault at Mr. Hurst’s house and that the victim’s death
occurred during the perpetration of the robbery. The evidence is sufficient to support the
Defendant’s conviction of first degree felony murder.



                                            -17-
        As part of her challenge to the sufficiency of the evidence of the first degree felony
murder conviction, the Defendant argues that the trial court erred in instructing the jury
that robbery was a lesser included offense of first degree felony murder. Although we do
not view an argument regarding an instructional error as impacting the question of the
sufficiency of the evidence in this context, we will address it due to the Defendant’s having
raised it as part of her argument relative to the sufficiency of the evidence for first degree
felony murder.

        The lesser included offense issue is waived. The Defendant failed to raise it in the
trial court by making a contemporaneous objection and failed to raise it in the motion for
a new trial. See Tenn. R. App. P. 3(e), 36(a). Although the record reflects that the court
instructed the jury that robbery was a lesser included offense of first degree felony murder,
plain error relief is not required. See State v. Smith, 

24 S.W.3d 274

, 282 (Tenn. 2000);
State v. Adkisson, 

899 S.W.2d 626

, 641-42 (Tenn. Crim. App. 1994)). The Defendant was
convicted of the greater offense, and the record reflects that the jury was instructed not to
consider lesser included offenses unless it first acquitted her of the greater offense, in
accord with Tennessee Pattern Instruction – Criminal 41.01 (Deliberation: Order of
consideration).

       The evidence is sufficient to support the Defendant’s conviction of first degree
felony murder. She is not entitled to relief on this basis.

   B. Second Degree Murder

      Finally, the Defendant argues that the evidence is insufficient to support her second
degree murder conviction. As relevant to this appeal, “Second degree murder is . . . [a]
knowing killing of another[.]” T.C.A. § 39-13-210(a)(1) (2014) (subsequently amended).

        In her argument, the Defendant challenges witness credibility and claims a lack of
physical evidence of the homicide on Defendant’s clothing and shoes. It is not the function
of this court to reweigh the evidence and revisit questions of witness credibility. See 

Bland,
958 S.W.2d at 659

; see 

Sheffield, 676 S.W.2d at 547

.

       Viewing the evidence in the light most favorable to the State, the record reflects that
the Defendant participated in a violent assault on the victim and that she and the other
perpetrators inflicted at least thirty-seven blows over much of the victim’s body. The
Defendant told Detective Duncan that either she or Mr. Hurst killed the victim. The nature
of the assault was such that a rational jury could conclude that the Defendant was aware
her conduct was reasonably certain to cause the victim’s death. The victim admitted to
Ms. Baird that she “done the final blow.” The victim admitted in her statement to Detective
Duncan that she participated in the killing by beating and kicking the victim.


                                            -18-
      The evidence is sufficient to support the second degree murder conviction. The
Defendant is not entitled to relief on this basis.

        In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.


                                         ______________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




                                          -19-

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