                                                                                            01/11/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  July 18, 2017 Session

          STATE OF TENNESSEE v. MATTHEW GLEN HOWELL

                          Criminal Court for Davidson County
                                    No. 2015-B-857


                             No. M2016-01812-CCA-R3-CD




TIMOTHY L. EASTER, J., concurring in part and dissenting in part.

       I agree with the majority’s conclusions in section II of the opinion, the evidence of a
federal lawsuit and section III, impeachment of the victim. However, I respectfully
disagree with the majority’s conclusion in section I that a new trial on the offense of simple
assault is barred by the prohibition against double jeopardy. I am of the opinion that there
is no valid and final judgment for the purposes of collateral estoppel via double jeopardy
and that a rational jury could have grounded its verdict upon an issue other than that which
Defendant seeks to estop. Therefore, I would remand the case for a new trial on simple
assault.

        Defendant argues that the collateral estoppel principles incorporated in the Double
Jeopardy clause prohibit a new trial on any charge of which the jury has impliedly
acquitted Defendant. Defendant roots his argument in our supreme court’s decision in
State v. Thompson, 285 S.W.3d 840 (Tenn. 2009), which adopted the reasoning of the
United States Supreme Court in Ashe v. Swenson, 397 U.S. 436 (1970), and Turner v.
Arkansas, 407 U.S. 366 (1972). The State responds by arguing that there is no valid and
final judgment from which the collateral estoppel stems.

        The jury’s acquittal of Defendant for the offense of intentional or knowing
aggravated assault was final upon entry. See Thompson, 285 S.W.3d at 854. However,
the jury’s verdict on the improperly instructed charge of reckless aggravated assault is a
nullity. See Nease v. State, 592 S.W.2d 327, 332-33 (Tenn. Crim. App. 1979) (holding
that a judgment on a lesser-included crime resulting from erroneous jury instruction for a
nonexistent crime was a nullity). Additionally, the modified judgment issued by the trial
court is not valid because it results from the aforementioned and erroneous reckless
                                             -1-
aggravated assault verdict, and a trial court’s modification of a judgment cannot impose a
conviction or sentence which exceeds the jury’s determination of culpability. See State v.
Hill, 856 S.W.2d 155, 157 (Tenn. 1993). Thus, we are left with only a valid and final
judgment of acquittal on the offense of intentional or knowing aggravated assault.

        In the past, our supreme court has held that a new trial on the lesser-included offense
of assault was the proper remedy when the defendant had been acquitted of intentional or
knowing aggravated assault and the evidence was insufficient to support a conviction for
reckless aggravated assault. State v. Goodwin, 143 S.W.3d 771, 777 (Tenn. 2004). The
majority correctly points out that Goodwin was decided prior to our supreme court’s
decision in Thompson. However, the majority fails to recognize the two opinions issued
after Thompson in which our supreme court expressly held that a new trial on a
lesser-included offense does not violate double jeopardy. See State v. Whited, 506 S.W.3d
416, 447-48 (Tenn. 2016) (citing State v. Maupin, 859 S.W.2d 313, 318 (Tenn. 1993));
State v. Climer, 400 S.W.3d 537, 571 (Tenn. 2013). Further, our supreme court has
declared that a new trial on lesser-included offenses would be proper on multiple occasions
where the greater offense did not stand. See Whited, 506 S.W.3d at 448; Climer, 400
S.W.3d at 571; State v. Cross, 362 S.W.3d 512, 530 (Tenn. 2012); Goodwin, 143 S.W.3d at
777; State v. Rush, 50 S.W.3d 424, 432-33 (Tenn. 2001). Since Thompson, this Court has
also held that a new trial on lesser-included offenses is proper when the greater offense did
not stand. See State v. Larkin, 443 S.W.3d 751, 818 (Tenn. Crim. App. 2013). Because
our supreme court has relied on Maupin to permit a new trial on lesser-included offenses in
Goodwin as well as Climer and Whited, it appears that remedy set forth in Goodwin
survived our supreme court’s decision in Thompson. Therefore, I am of the opinion that
the same remedy used in Goodwin should be used in this case: a new trial.

        The decisions which allowed for a new trial on lesser-included offenses in the years
after Thompson indicate that the holding in Thompson is unique to the factual scenario
where an essential element, like a predicate offense for felony murder, has been fully
considered and decided by a jury, resulting in either a conviction or an acquittal. Simply
because a greater offense of which a defendant has been acquitted shares an element with a
lesser offense that a jury has never considered does not mean that a new trial on the
lesser-included offense is barred by double jeopardy principles. Just as we refuse to
speculate about a jury’s reasoning when it comes to inconsistent verdicts, State v.
Bloodsaw, 746 S.W.2d 722, 726 (Tenn. Crim. App. 1987), we should refuse to speculate as
to the reasoning behind the jury’s acquittal of Defendant for intentional or knowing
aggravated assault. The jury made a determination of guilt or innocence on intentional or
knowing aggravated assault, but they did not make a separate and distinct finding related to
Defendant’s mens rea. Even Defendant admits in his brief that it is possible that the jury’s
acquittal of intentional or knowing aggravated assault and the jury’s verdict of guilty for
reckless aggravated assault could have been the product of a compromise verdict. Thus,
                                             -2-
the jury could have grounded its decision on an issue other than that which Defendant seeks
to estop. Accordingly, I cannot reach the conclusion that Defendant’s mens rea has been
determined with finality by the jury.

       The jury was instructed to consider the lesser-included offenses in a sequential
order, and by finding Defendant guilty of reckless aggravated assault, the jury did not
render a verdict on the lesser-included offense of simple assault. Therefore, I am of the
opinion that a new trial on the offense of simple of assault is the proper remedy.


                                          _________________________________
                                          TIMOTHY L. EASTER, JUDGE




                                           -3-
